2nd Circuit reinstates lawsuit in middle-finger arrest

Friday, January 4, 2013

A New York man arrested for disorderly conduct after giving the middle-finger salute to a police has won reinstatement of his civil rights lawsuit by a federal appeals court.

In May 2006, John Swartz rode in a car driven by his then-fiancee and now wife, Judy, in St. Johnsville, N.Y. At an intersection, John saw a police car using a radar device to catch speeders.  John flipped off the police to express displeasure at the speed trap.

Officer Richard Insogna apparently took offense at the gesture, pulled the couple over and asked for Judy’s license and registration. According to the couple, when John told Judy not to comply, Insogna allegedly said: “Shut your mouth, your ass is in enough trouble.”

John got out of the vehicle and walked toward the officer to explain his actions, allegedly saying, “I feel like an ass.” Officer Patrick Collins then said: “That does it, you’re under arrest.”

The officers handcuffed John, took him to the police station in the central New York town and charged him with disorderly conduct. The charges were dropped after John had made three court appearances.

Officer Insogna offered a different version of events. He claimed he pulled the couple over because he thought John’s gesturing indicated a problem or a domestic dispute in the car.

The Swartzes sued, alleging a violation of their civil rights. They contended that the officers violated their Fourth Amendment rights to be free from unreasonable searches and seizures. And they said the disorderly conduct charge infringed on John’s First Amendment free-speech rights.

In July 2011, a federal district judge dismissed the lawsuit, finding there was reason for the arrest based on John Swartz’s “odd and aggressive behavior.” On appeal, a three-judge panel of the 2nd U.S. Circuit Court of Appeals reinstated the lawsuit Jan. 3 in Swartz v. Insogna.

Judge Jon O. Newman, in his opinion for the panel, expressed skepticism at the officer’s purported reason for stopping the vehicle.

“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,” he wrote. “But, the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.”

Newman said the arrest for disorderly conduct was problematic because the “gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred.”

At trial the officers could argue they were entitled to qualified immunity, Newman said, and could contend the arrest was lawful.

Ira P. Robbins, a law professor from American University who has written a law-review article on the use of the middle finger and the First Amendment, applauded the 2nd Circuit’s decision.

“Judge Newman got it exactly right when he spoke of the ‘universal recognition that this gesture is an insult,’” Robbins said.

“This doesn’t mean that this will stop police officers from making arrests under overly broad disorderly conduct laws,” he said. “There must be better training for police officers, who must develop thicker skin and not make arrests when there is nothing more than the middle finger.”

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