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Middle Finger Appeal Reaches Second Circuit

By William Peacock, Esq. on January 03, 2013 | Last updated on March 21, 2019

At this point, we should all be familiar with the general proposition that citizens are well within their rights to casually flip the bird to whomever they please, whether the recipient is a police officer or fans at a sporting event. Police officers should especially be familiar with the gesture after a series of stories of citizens successfully suing after being arrested for their self-expression.

Based on that commonly understood proposition, you might wonder how a middle finger case ended up in the Second Circuit Court of Appeals. Quite frankly, we’re still wondering the same thing. After the District Court dismissed John Swartz’s claims for an unlawful search and seizure, false arrest, and malicious prosecution via summary judgment, the Second Circuit reversed the lower court - and it wasn’t even close.

John, and his wife were driving along when John was alerted to the presence of a police officer by his radar detector. Unappreciative of Officer Insogna's efforts to enforce speed limits, he responded by flipping the bird to the parked officer. Insogna then followed the couple to their destination and effected a traffic stop. John then asked to speak with the officer and when denied, stated "I feel like an ass." He was then arrested for disorderly conduct.

Though there was some dispute as to whether the officer initiated the stop or merely caught them after they arrived at their destination, the Second Circuit pointed out that it really didn't matter - a traffic stop and a stop of two pedestrians are still seizures for the purpose of the Fourth Amendment and still require reasonable suspicion of criminal activity.

What was that criminal activity? The officer stated that he felt that the gesture either indicated a need for help or that the gesture indicated that John was about to beat his wife. Did the court buy it? "[T]he nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."

While the Second Circuit could take style lessons from Mr. Swartz, the point was clear: the officer had no reason for the stop. Taking the facts in a light most favorable to the plaintiff, or even in light of common sense, there is no way that summary judgment should have been granted.

As for the arrest, is this the first time someone was arrested for calling himself an ass? The Second Circuit found the arrest as ridiculous as we do, reversing summary judgment once again. While NY's disorderly conduct statute is very broad, and covers the use of obscene language in public, it still has to allow one to express his own opinion, especially when that opinion is self-deprecatory. Under People v. Tichenor, a disorderly conduct charge has to involve speech "coupled with intent to create a risk of public disorder ..."

The District Court also mistakenly granted summary judgment on the malicious prosecution claim, committing the cardinal sin of citing dicta. The Second Circuit was unimpressed.

Final score: Swartz and the finger - 3, District Court and the officer - 0.

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