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. I wonder in the officers next career move….. Will he be required to ask the following…… Would you like fries with this….. Or may we super size this meal today….

  2. It is called “flipping the bird”. The bird is the word.
    There was a song about this in the 60’s. The Bird Is The Word.

    A badge is issued by the government authorities at our behest to enforce the law, not break the law. When they break the law we not only take the badge away from the law breaker we must discipline him and the superior who allowed this to happen. Our law allows a victim of state actor abuse of our civil rights to sue for injunctive relief to prevent it again and to sue for damages to get recompense and to punish the law breaker. Ttle 42 of the States Code, section 1983. That code is your friend and mine.

  3. pete,
    The gesture is not illegal and the officer and his department have to taught that they do not make up their rules.

  4. raff

    don’t get me wrong, most if not all officers need to be reminded from time to time who works for who and the consequences of lying in court.

    but don’t make an obscene gesture at someone and then act surprised when confronted about it.

  5. please, at what point in the history of the united states has it been okay to flip off a cop and not expect to get a nightstick stuck up your a$$.

  6. Giving the finger. The United States is giving the finger to the world. We, the United States, the Exceptional nation, that tried the Germans at Nuremburg after WWII for War Crimes and Human Rights Crimes, are giving the finger to all of that. When you wake up tomorrow morning all snug in your bed with the electric blanky going, think what WE did to Manning every day, 24/7. Naked, in a cold cell 8 x 8 on a lame cot with no sheet, no top sheet, no blanky, no socks, no pajamas, no underwear, no shirt, no night cap, awakened hour by hour by lame brain guards in some no neck, no crack prison called Quantico. America, the Exceptional nation.

  7. PS
    The explanation of a55holes is worthy, it seemed to be in a quick scan.

    But combination of OCD and the entrancing idea of seeing a goatsie in action had seized my mind.

  8. DrIedd,

    I am easily mislead. And I do see text, words, ideas that are not there.

    Wonder why. It is not senility, the trait has always been there.

    The only thing that saved me was that most decided it was not worth the effort. Simple fools provide little merriment.

    But I can sure write some skit, so my mental arsle is functioning. To what degree is for you to judge.

    Deprecatingly yours.

    I’ve tons of it. How big is your storage? The Cloud. Forget it. I won’t last long enough.

  9. Dredd,

    I think that I understand. Nature saw the need when intelligence was mutated into action. OMG. Who says nature has no foresight.

    Or IS there a guiding hand? Nah, the Devil retired many millions of years ago.
    Got tired of playing around with single celled organisms.
    Guess he made a comeback when we popped up. Or was our origin his work, to prove that Dog is stupid?

  10. idealist707 1, January 7, 2013 at 7:19 pm


    I visited your linked blog, and found only the video on Exxon, etc.
    Did I miss something?
    What was there?

    You were looking for a s s h o l e research, not goatsies weren’t you?

    I hope that OS has not corrupted you. 🙂

  11. idealist707 1, January 7, 2013 at 7:06 pm

    Dredd and OS,

    …. That had always worked out for Dubja.

    And if you have a veritable ugly Goatsie to look at, I might get my vomiting package from the hospital and take a look.
    The On The Origin of A s s h o l e s is a very serious scientific work.

    It may prove out to be real that anal cavaties and intelligence evolved at the same time in the yin yang universe … quien sabe?

  12. PS If you look at it from another angle, then we all are Goatsies.
    We wiil swallow whatever PTB say to us. and digest it with no trouble at all.

  13. Dredd and OS,

    I looked at Google and got a word description from Urban Dictionary which was explicit if not full coverage. They might have it all but wss “satisfied” by the bit that Google offered from the site. How wide is it possible? Any ideas?
    I even visited the official fan site (one of many?). Didn’t go past the opening hard rock intro page.

    Guess I really don’t want to find out what Toupé’s and Dubjas’ look like.

    Speaking of the latter: exposed by last nights few pages reading of Russ Bakers Family of Secrets. declares that he was the only Harvard Business School grad that left without a job offer. Many interviews, but no job

    Why? IMHO and implied lafer, it was due to knowing that he had better uses for him home, doing what Poppy told him to do. That had always worked out for Dubja.

    And if you have a veritable ugly Goatsie to look at, I might get my vomiting package from the hospital and take a look. Men are strong, right?

  14. Kraaken 1, January 7, 2013 at 6:38 pm

    Dredd- DID look and, apparently so did enough people to make them pull the page.
    Are you just tryin’ to drum up business?

    People want what they can’t have. 😉

    All pages are working fine On The Origin of A s s h o l e s research.

    We may find the cause of the malfunction in these finger haters after all is said and done.

  15. Dredd- DID look and, apparently so did enough people to make them pull the page.

  16. They have, several places, but caught? No.

    The feds work their side of the street and the locals their’s, and the CIA is for assassinations Of course there is much alphabet soup not mentioned., TSA, DHS, NSA, Coast Guard, Border Control, Customs. etc.
    Police state? Ha, soon we all will be employed in it. Great place to be employed. Lotsa power: Lotsa money (corrupt). Always fun, until your buddies sling you under the bus. You won’t ever know why, but then they never did in 1930s in USSR where it was the best way for the NKVD to get their next item to process.

  17. What Justice Holmes said. This police officer was going to show who was boss. He lied ss to his reasoning but won’t be charged with anything got it. This stuff will continue as long as the punishment of LEO’s for such behavior becomes serious and I don’t see thst hsppening in the current national mindset. The saddest thing about this serious problem is that it won’t be solved until some police force somewhere starts a program to murder those they perceive as criminals and gets caught.

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