Exercise Your Constitutional Rights: Give a Cop the Finger Today!

You see a speed trap, with a cop or two sitting there, aiming the radar at passersby. What do you do?

According to a federal appeals court, you are well within your rights to give them the finger. Flipping the bird is your Constitutional right.

You may suspect that there is a good back story as to how this case made it to the Federal Court of Appeals, and you’d be right.

John Swartz and his wife Judy Mayton-Swartz had sued two police officers who arrested Swartz in May 2006 after he flipped off an officer who was using a radar device at an intersection in St. Johnsville, N.Y. Swartz was later charged with a violation of New York’s disorderly conduct statute, but the charges were dismissed on speedy trial grounds.

A federal judge in the Northern District of New York granted summary judgement to the officers in July 2011, but the Court of Appeals on Thursday erased that decision and ordered the lower court to take up the case again.

Richard Insogna, the officer who stopped Swartz and his wife when they arrived at their destination, claimed he pulled the couple over because he believed Swartz was “trying to get my attention for some reason.” (source)

According to court documents the officer was gravely concerned for the safety of the vehicle’s occupants, and not miffed that one of them shot him the bird after the cop had harrassed them previously. Here are some of the concerns that were going through Insogna’s mind:

In his deposition, Insogna said that after he saw John give him the finger, he decided to follow the car “to initiate a stop on it.” As reasons he stated: (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and 3) “I was concerned for the female driver, if there was a domestic dispute.” (source)

My goodness, what a conscientious officer. It’s reassuring to know that the stop had nothing whatsoever to do with the passenger, John Swartz, and his reaction to seeing Insogna with a radar gun looking for speeders.

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. (source)

Circuit Judge Jon O. Newman rendered the following decision.

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. (source)

So take heart, bird flippers. This is our little victory over the cops. They might stop you, they might arrest you, and they might beat you to within an inch of your life – but it won’t hold up in court.