Second Circuit Rejects Middle Finger As A Cry For Help

3682The Second Circuit has reinstated a civil rights lawsuit by former airline pilot John Swartz, a Vietnam veteran who sued after he was arrested in New York for disorderly conduct. Swartz, a Vietnam veteran, says that he was arrested after he signaled his displeasure with a speed trap by extending his middle finger in a universal sign of contempt. The officer however insisted that he took the gesture as a cry for help and followed Swartz. The case is Swartz v. Insogna, 2013 U.S. App. LEXIS 186 (2d Cir. 2012).

Here is the account given by the Court:

In his deposition John gave the following account of the incident. In May 2006, he and Judy were driving through the Village of St. Johnsville on their way to the home of Judy’s son. Judy was driving; John was in the passenger seat. At an intersection, John saw a local police officer, Defendant Insogna, in a police car using a radar device, of which John became aware because he had a radar detector. John expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof. The Plaintiffs, who were not speeding or committing any other traffic violation, continued to the home of Judy’s son. Upon reaching their destination on Monroe Street, the Plaintiffs got out of the car and saw a police car with its lights flashing approaching from the corner of the street they were on, ultimately stopping behind Judy’s car. When John walked to the trunk of the car, Insogna ordered him and Judy to get back in the car. John initially refused, telling Insogna that he had not been driving the car. Insogna again told John to get back in the car, stating that this was a traffic stop. Judy then urged John to reenter the car, and they both did so.

Insogna then asked to see Judy’s license and registration. John then told her not to show the officer anything, prompting Insogna to say, “Shut your mouth, your ass is in enough trouble.” Insogna then collected Judy’s license and registration, returned to his police car to check the documents, and called for backup. Three other officers soon appeared.

Insogna returned to Judy’s car, gave her back the documents, and told the Plaintiffs they could go. John then got out of the car and asked if he could speak to Insogna, saying “I’d like to speak to you man to man.” As he started walking toward Insogna, who was more than 20 feet away, three other officers stepped in front of him. John stopped, walked away from the officers, and said to himself in a voice apparently too low for his words to be understood, “I feel like an ass.” One of the other officers asked John what he had said, and John repeated his remark loud enough to be heard. At that point Defendant Collins said, “That does it, you’re under arrest,” but did not say for what.

The officer, Richard Insogna, says that Swartz called him vulgar names after Insogna followed him. Insogna however insists (rather implausibly) that he considered Swartz waiving his middle finger to be an attempt to get his attention. He said that he feared Swartz might be involved in some type of domestic dispute and needed his help.

There is no court that could better take judicial notice of the use of the middle finger than a New York court and the Second Circuit expressed skepticism at the officer’s explanation in a 14-page opinion written by Judge Jon O. Newman for a three-judge panel:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Indeed, in New York, the traffic would come to a virtual standstill.

What is particularly enlightening however is the court’s exploration of this particular gesture: “Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.”

I wonder if the lawyers asked Isogna in deposition if he was a Giants fan.

Thomas K. Murphy, a lawyer representing the officer and a sheriff’s deputy in the case, took a cultural defense approach, insisting that such displays may be common in New York City but “[t]his is St. Johnsville, New York. Not the Bronx. Not Manhattan. It’s a sleepy little town.”

If the officer is correct, however, it would mean that George W. Bush and Nelson Rockefeller both made a widely misunderstood cry for help in their careers.

The ruling was joined by Judges Gerard E. Lynch and Raymond J. Lohier Jr., and reinstated the lawsuit alleging an illegal traffic stop, false arrest and malicious prosecution. What I do not get is why the police department has litigated this case with such absurd defenses. Any argument of this kind was probably received as the legal equivalent of the gesture at the heart of the case.

Source: New York Times

63 thoughts on “Second Circuit Rejects Middle Finger As A Cry For Help”

  1. Once again, a person is arrested for the worst crime there is, “contempt of cop”.

  2. Dredd,
    Are you familiar with Goatsie? Fair warning, you have to search with filters off and definitely NSFW.

  3. “I am spending as much time on this case as the defendants spent in conjuring up their defense.” -mespo727272

    Too much credit given to the defendants, I suspect.

  4. As sort of an audition for my job on the federal bench, I re-wrote the opinion. Here goes:

    The defendants have asked the court to excuse their alleged unconstitutional activities with a defense that any twelve-year-old of reasonable intelligence and experience could refute. I am spending as much time on this case as the defendants spent in conjuring up their defense.

    Judgment for the Plaintiff. Defendants to pay all of Plaintiff’s attorneys’ fees and costs on appeal plus an amount equal to one minute of my salary for making me waste one minute of my life on this case.

    ~Trying to stay honorable mespo727272, faux-judge

  5. “What I do not get is why the police department has litigated this case with such absurd defenses.”


    Because the mentality of some law firms and their insurers is to take the most unreasonable position possible and negotiate from there. I call it the Republican gambit and guess what? Most of the practitioners are Republicans. And even more of a surprise: a whole lot of conservative judges let ’em get away with it. Note the lack of sanctions against the defendants here. Try that tack as a plaintiff sometime.

    Also, what I find even more galling is the idea that three grown adults would spend more than one second deciding this case. Who cares about the history of a crude insult? Certainly no really learned people I know would spend 14 pages pointing out the obvious. It would be beneath most folks — lawyers or not –, but alas I am not a federal judge. And if this is in their job description, I sure don’t want to be.

  6. Two books, the names of which do not get pass the moderation cue, are out that would explain this and a lot of other police behavior (Link). The subject matter is the history of anal cavities.

  7. The police are out of control; the guy with the finger is stoopid; but his commentary was protected by the First Amendment.

  8. What Justice Holmes said. The only crimes here is the idiocy of the officer who abused his authority because his widdle feelin’s was hurt because he was dissed, a prosecutor stupid enough to bring the charges against Swartz in the first place, which ever one of those two was idiotic enough to come up with that rationale of “looking for help”, and a lower court stupid enough to listen to either officer or prosecutor without the result being laughing in their faces. More than one person involved in this incident deserve the finger and none of them are Swartz.

  9. The police department litigated this case because police all over this country have decided that anyone who dares exhibit behavior that the individual police officer does not like for any reason is a criminal and can be followed, arrested, beaten, tazered, shot and then arrested on trumpeted up charges that will more likely than not be supported by the prosecutor. There are hundreds if not thousands of law abiding citizens who simply “didnt treat” police officers with the exhalted level of respect that they have decided they are due or who have stumbled into a situation with an officer who is angry at the world who have lost jobs, money, health and sometimes freedom because the police believe that they can do anything they want. Most judges look the other way when this behavior is presented to them because even police in these situations are viewed as “heroes” whose choices cannot be questioned. The failure of the judiciary to stop this kind of behavior and the failure of civilian authorities to fire and prosecute police officers who behave in this way has lead to a growing fear that police officers are to be feared in all situations. A sorry state of affairs.

  10. John – This is New York, home of the “dropsy” testimony. That state has its own standard for absurdity.

  11. Good post, Mr. Turley. Being a huge fan oif baseball history I hope the casual fans take note of my favorite baseball team name of all time..the Boston Beaneaters. I would be willing to bet some flatulence accompanied the inital presentation of what has now become known as “flipping the bird.”

  12. “What I do not get is why the police department has litigated this case with such absurd defenses.”
    Since they won a dismissal in the court below, the defenses are not that absurd it would seem.

  13. Vietnam veteran Swartz, who is a Vietnam veteran, fought in the Vietnam war and is a former soldier during Vietnam.

  14. Lol….. And I thought I was the only one that finds humor in this type of Federal Case….. Apparently the Court does as well….

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