Note: What follows is not a suggestion that you go out today and provoke a cop by doing what John Swartz did to Richard Insogna, a St. Johnsville, New York, police officer. But you have the right to do so.
The Second Circuit, in an opinion by Judge Jon Newman in Swartz v. Insogna, includes a history lesson in footnote 1 to its first sentence:
An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,1 to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal.
1 See Bad Frog Brewery, Inc. v. New York State Liquor Authority,134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). 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. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008).
In contrast to the perspective of an ordinary police officer, who conflates respect for the law with respect for him personally, the time honored insult of “giving the finger” is a right. We have the right to express the view that we do not care for a cop, or what a cop does, and if we do so by use of Digitus Impudicus, that does not give rise to a justification for seizure or arrest.
John Swartz say P.O. Insogna working a radar trap and, for whatever reason, thought it worth his while to express his disdain for Insogna’s assignment. This ultimately resulted in his arrest and prosecution, though the case was dismissed after three appeances and a year delay on speedy trial grounds. Insogna’s attempt to justify the arrest is an excellent example of how, with a bit of twisty testimony, a cop can try to turn a right into a wrong.
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.”
You’ve got to give Insogna credit for a vivid imagination, as he dreamed up not just one, but three, utterly nonsensical excuses for his conduct, all benign if not benevolent. After all, who could fault the officer for his deep, abiding concern for the welfare of the female driver, “if there was a domestic dispute”?
Lest one laugh off the cop’s claims to swiftly, note that this decision comes from the Circuit, which means that things didn’t go well at the district court.
The District Court, accepting Insogna’s third reason for the automobile stop, ruled that the stop was legal because Swartz’s “odd and aggressive behavior directed at a police officer created a reasonable suspicion that Swartz was either engaged in or about to be engaged in criminal activity, such as violence against the driver of the vehicle.”
It wasn’t the finger, per se, but what the finger represented, “odd and aggressive behavior,” that gave rise to reasonable suspicion. After all, giving the finger is a gateway to crime. Or not. When it comes to giving the finger, the Second Circuit knows what’s up:
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.
Before you get any ideas, bear in mind that Swartz may have beat the rap, but hardly beat the ride. And though he’s now overcome the defense motion to dismiss, it was on appeal. He’s still got a long way to go before resolution, and whether the resolution will eventually satisfy the cost and burden has yet to be seen.
Those concerned with the right of free expession, even if it manifests itself in vulgar gestures, should also bear in mind that domestic abuse advocates might consider giving Officer Insogna a medal, embracing his excuse in the belief that violating free speech is perfectly acceptable “if it save just one woman from domestic abuse.” For some, there is no right sufficient to overcome even the slightest hint of harm, no matter how unreasonable.
Yet, the Circuit’s recognition that giving a cop the finger is a time-honored insult, a right retained by the people, is worthy of our admiration. And so, I offer this video as an homage to Judge Newman, who has clearly heard that the bird is the word: