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. The Commanders of Qauntico who tortured Bradley Manning are liable under the doctrine of Command Responsibility. Here is a description from Wikipedia:

    Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes.[1][2][3][4]

    The doctrine of “command responsibility” was established by the Hague Conventions IV (1907) and X (1907) and applied for the first time by the German Supreme Court in Leipzig after World War I, in the 1921 trial of Emil Muller.[5][6][7]

    The “Yamashita standard” is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted in 1945, in a still controversial trial, for atrocities committed by troops under his command in the Philippines. Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”[8][9]

    The “Medina standard” is based upon the 1971 prosecution of US Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War.[10] It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. However, Medina was acquitted of all charges.[8][11][12]

  2. Otteray Scribe 1, January 7, 2013 at 5:06 pm

    Not gonna look. …
    Can’t blame you for that.

    Who needs to know the origin of the mind of The Donald and The W anyway?

  3. Dredd,
    Not gonna look. I had to wash my eyes out with bleach the first time I looked. I am pretty good at one-trial learning. Dr. Edwin Guthrie would be proud of me.

  4. We should show up at the Bradley Manning trial in Virginia. Here is a description of the torture inflicted upon him by our country:

    List of Torture Techniques Applied to Pfc. Bradley Manning:

    1. Solitary Confinement/Isolation

    Solitary confinement is strictly prohibited under international law. It is a cruel practice which causes permanent psychological damage. The impacts can range from hallucinations, emotional damage, delusions and impaired cognitive functioning to anxiety and depression. Solitary confinement is outlawed under the Convention Against Torture, ICCPR and the Geneva Conventions.

    Manning was in solitary confinement in Kuwait and Quantico for nine months. He was in a cage (Kuwait) or a small, windowless cell for 23 hours a day. He was given 20 minutes of “sunshine call” each day, during which he could “walk” figure eights in restraints with guards holding him up. Eventually, he received 1 hour of recreation per day–still woefully below legal standards. His treating military psychologist, Col. Rick Malone, much to his credit, testified that

    The ways he was being held was detrimental to his physical and mental health. His custody status was a stressor . . . He was taken of medications after several weeks because he was symptom-free. . .in complete remission . . .and posed no harm to himself or others.
    2. Humiliation Techniques
    Bradley Manning, being held alternatively in “suicide risk” and “prevention of injury” status (despite military psychologists testifying that he posed no risk of injury to himself or others) pointed out that

    If I really wanted to kill myself, I could use my underwear.
    Even though he was under 24/7 observation, the military took his underpants. At the routine count the next morning, he covered himself with the prevention-of-injury sandpaper blanket. An officer asked,
    Detainee Manning, Is that how you stand at parade rest?
    Manning requested clarification. He was soon standing completely naked for morning count. Forced nudity is used to induce feelings of humiliation and fear. Manning also had to request toilet paper any time he needed to relieve himself. This was supposedly an anti-suicide measure, which is belied by the fact that he was under constant surveillance.
    3. Sleep Deprivation

    Upon his initial confinement in Kuwait, Manning’s days and nights were reversed, being awoken in the evening and kept up all night. Sleep deprivation is a very effective torture technique used by torturers because it makes a person more suggestible, reduces psychological resistance and it reduces the body’s capacity to resist pain. It had this very effect on Manning, causing him to have what has been described as an “anxiety attack” and “nervous breakdown.” Once he was moved to Quantico, guards awakened Manning multiple times on multiple nights each week, and a flourescent light was always visible from his cell. The Committee against Torture (CAT) has noted that sleep deprivation used for prolonged periods constitutes a breach of the CAT, and is primarily used to break down the will of the detainee. Sleep deprivation can cause impaired memory and cognitive functioning, decreased short term memory, speech impairment, hallucinations, psychosis, lowered immunity, headaches, high blood pressure, cardiovascular disease, stress, anxiety and depression…even though Manning was supposedly in restricted custodial status due to anxiety and depression.

    4. Sensory Deprivation

    Sensory deprivation is used to instil a sense of fear, disorientation and cause dependency on their captor. Sensory deprivation has also been attributed to increased pain sensitivity and increased psychological stress. The military confiscated Manning’s glasses, without which he cannot see. So all of the isolation he endured, he did so while essentially blind.

    5. Stress Positions

    Manning was kept shackled in his cell. He was told he had to stand because he was still “on duty.” If he sat, he was not allowed to lean against the wall or lie down. The strangest thing was the “tear-proof smock,” which was really a nearly floor-length, rigid, abrasive rubber-and-foam straight jacket. Manning donned this restraint, which he often had to wear with nothing on beneath. Manning got stuck in this device, which was supposedly for his protection, and had to be extracted by guards.

    These physically and psychologically abusive techniques were used to disorient Manning and induce regression, psychic disintegration, and feelings of helplessness that lowered his defenses. He would routinely go through perfunctory “wellness checklists,” and didn’t start advocating for himself until his amazing attorney, David Coombs, told him to start filing formal grievances contesting his conditions of confinement so he could exhaust his administrative remedies. (These formal grievances led to 3 sham “Classified & Assignment Board” hearing, which Manning testified had already decided to keep him on restricted status.)

    These techniques were used not by rogue CIA thugs, but by the military–on someone in pre-trial detention, not found guilty to have done anything.

    The victim was originally from Oklahoma. Where are his Senators and Congressmen? They need to stand up for him. The International Courts need to get on this case and start prosecutions against the perps involved here.

  5. Otteray Scribe 1, January 7, 2013 at 2:58 pm

    You cannot say you weren’t warned. 😈
    Tru dat.

    I am working on a hypothesis “on the origin of Goatsie.”

    The link to it is censored on this blog, so I will spell it out: s s h o l e s.html

    Remove the spaces and go there at your own peril.

    Can’t say you were not forewarned. 😈

  6. Otteray Scribe 1, January 7, 2013 at 11:42 am

    Are you familiar with Goatsie? Fair warning, you have to search with filters off and definitely NSFW.
    No, I had never heard of it. One hit that came up from “the google” said this “If you don’t know what Goatsie is, consider yourself VERY LUCKY! …”

    Another hit tells what it is and I had to agree to have once been lucky not to know. 😉

  7. Nate,

    Deep apologies. My reasoning may have been correcf, but it was based on the police officer being named Schwarz..
    Sloppy reading or tired old mind My bad.
    Not too much damage done I hope, only to me. 🙂

  8. Justice Holmes,
    Great post,

    Just a small expression of dissent in re reality.
    No judge is fool enough to do as you claim:

    “Most judges look the other way when this behavior is presented to them because even police in these situations are viewed as “heroes” ”

    The LEOs (ironic name) are instead the local bully gang who all in the justice system must defer to, conflict brings severe reprisal of off-the-record hidden attacks on you, your family, your reputqtion, slow leaks in your tires.
    You may ´move, but the “word” from your persecutors will follow in the 50 states. Never ending travail. The police have their jackboots on the neck of all in society.

    So no judge dares. The Justice Dept probably provides body guards fcr their Circuit Court judges, and a system of counter reprisals against all who can be connected to disapproving the judgements.

    And speaking of finger, I hope the CC ruling was one back at them.
    Atrocities are NOT only committed on the battle field. This officer is perhaps one to use when hiring war vets.

    What kind I’ll leave you to decide.

    It is war, and every man for himself.

  9. Nate,

    What are you implying.
    That being a good soldier (do we know that?, makes him a good cop.

    IMHO, his actions in this case, cast suspicion on his unknown service record, how he won the job and with what corruption involved. Corruption begins at home and spreads totally through a small town. Who was his dad, uncles before they passed away? Implications with lack of evidence won’t get much support here, so say those who know.

    PS Why was the dashboard camera not filming recording this. Because they didn’t want evidence agäinst themselves.

    They were hoping that he would break bad and then they could use as much violence as they had stored up for the day. The charges thay would have lied about would be multiplied by two! Instead of counterpleas, he would be facing a penalty rap and hoping for a deal with the DA.

    So is justice done.

    Or don’t you agree?

  10. To arrest is getting back at a human.It is a form of revenge. The legal system is the real atheist. They deny God not thinking there is not a final judgment wanting to take Gods place.

  11. Tom,

    I would have another meaning.
    I think only that the local court was closing ranks to support the police and not be harrassed the rest of his life by them.

    Realistic, IMHO

  12. Another transcript of the Human Rights trial against Cheney and the other defendants in Nuremburg in the year 2020 just came in on the internet. Here is a transcript regarding his so called psychiatrists at Quantico:

    Nearly every single week, brig psychiatrists implored top officials to remove Bradley from these conditions, avowing both that there was no psychiatric need for his isolation and that his treatment was worsening his mental health. Yet Quantico’s brig commanders – first Chief Warrant Officer James Averhart, then CWO Denise Barnes – kept him on SR or POI, both maximum-security classifications, for his entire time in the brig.

    In mid-January, Cpt. Hocter pressed Quantico’s Battalion Commander, Col. Oltman, on the matter, saying Bradley had no mental-health reason to remain on POI and that he’d never been ignored like this before. Col. Oltman told him to make his recommendation and that Bradley would be kept on POI regardless. Testimony on his wording varies, but Cpt. Hocter recalls Col. Oltman saying that Bradley would be kept on POI “indefinitely.”

    The above transcript was from a hearing held in the year 2012.
    The International Court is trying the Quantico officers and other defendants such as Dick Cheney for human rights violations. It is about time.

  13. Folks

    There is a gesture that police officers sometimes use to indicate to other officers (usually ones who are just driving by to check on them) that they need help but are not able to ask for it, such as when they don’t want to alert the person they are standing with. I’m not going to specifically describe it for security reasons but it does involve a similar gesture, but it is certainly distinct. I say this only because it might have sponsored the officer to declare the flipping off was a “cry for help”, that is that he had it in his mind as a possible, albeit far fetched, defense he could craft retroactively.

    To me this idea of a person calling for help falls flat on its face after the officer contacted the two persons. If the person using the gesture was acutally in trouble why would the officer order this person, and the other person implied to be the threat back into the car together? It makes no sense whatever.

    This was a case of an officer getting angry and hooking up someone before he came to his senses and the city trying to cover its arse afterward.

  14. Another missive from the future came in regarding the War Crimes Trials in Nuremburg by the Internation Court of Human Rights. The following persons are defendants in the charges involving the torture of Bradley Manning in the year 2012:

    Chief Warrant Officer James Averhart: Brig commander, Quantico
    Chief Warrant Officer Abel Galaviz: Head of Marine Corrections
    Gunnery Sergeant Craig Blenis: Counselor to Bradley Manning at Quantico
    GNYSGT Jordan: Mid-level brig staff, Quantico
    Col. Daniel Choike: Base commander, Quantico
    Master Sergeant Brian Papakie: Brig supervisor, Quantico
    Cpt. William Hoctor: Psychiatrist for Bradley Manning, Quantico
    Cpt. Ricky Malone: Psychiatrist for Manning.

    I will forward more information as it comes in. The trial occurred on Dec 7 2020. Or will occur. Somehow this is coming back in time over the internet to our Dogalogue Machine.

  15. One commenter said that the use of the middle finger was protected by the First Amendment. I agree. The finger guy was pulled over and arrested. Searched. Besides the Fourth and Fifth Amendments his right of privacy was invaded. Ninth Amendment. The people in that town need to Occupy The Pigsty. Other than that I know nuthing.

  16. That officer should be charged with perjury. He lied under oath about believing that he took the the plaintiff shooting the finger at him as a call for help.

    Just another example of cops out of control.

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