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Was Middle Finger a Cry for Help? 2nd Circuit Doubts Cop’s Explanation for Stop, Reinstates Suit

Posted Jan 4, 2013 9:12 AM CDT
By Debra Cassens Weiss

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A federal appeals court has reinstated a civil rights lawsuit by a Vietnam veteran who contends he was wrongfully arrested after expressing his displeasure with a radar speed trap by extending his middle finger.

The New York-based 2nd U.S. Circuit Court of Appeals said the "ancient gesture of insult" displayed by former airline pilot John Swartz did not justify the traffic stop. Swartz, a Vietnam veteran living in St. Johnsville, N.Y., was riding in a car driven by the woman he later married when he flipped the bird in the May 2006 incident. The New York Times and the Albany Times Union have stories on the decision (PDF).

Swartz says he was charged with disorderly conduct after he demanded to talk “man to man” to the officer who followed him, Richard Insogna. The officer says Swartz called him vulgar names; Swartz’s version of events differed, though he does say he expressed that he “felt like an ass.”

Insogna said in a deposition that he saw Swartz's gesture as an attempt to get his attention for some reason, and he followed the car to assure the safety of passenger and driver, who could be in a domestic dispute. The New York Times deems the officer’s interpretation “a curious instance of mistaken middle-fingered intent.” The 2nd Circuit was skeptical of the explanation.

"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," the court said. "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."

Prior coverage of the issue:

ABAJournal.com: "Law Prof Says Long Arm of the Law Should Not Extend to Middle Finger"

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