If there wasn’t a West headnote for “giving the finger” before, there will be now. The 2d Circuit in Swartz v. Insogna held that “a gesture of insult known for centuries” does not give rise to probable cause to arrest for disorderly conduct. Oh, what the heck, Judge Jon Newman spelled it out: giving a cop the finger.
The case came before the 2d Circuit on appeal, having been dismissed by Judge David Hurd out of the Northern District of New York, where no such gesture had ever before happened. Much. Judy Swartz was driving when her husband John saw Police Officer Richard Insogna doing a radar trap.
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.
While this is about as effective in changing police tactics as screaming out the window at someone going 70 miles an hour (see Doppler Effect), it sufficed to capture Insogna’s attention. There is a dispute as to what follows, but it’s clear that there was no traffic infraction justifying a stop and seizure. There was a finger, which apparently was a pretty big deal.
Insogna then asked to see Judy’s license and registration. John then told her not to show the officer anything, prompting Insogna to say, “Shut your mouth, your ass is in enough trouble.” Insogna then collected Judy’s license and registration, returned to his police car to check the documents, and called for backup. Three other officers soon appeared.
It’s hard to say whether it’s more remarkable that Officer Insogna, true to his training, gratuitously used profane language, or required three additional officers for back up for this dangerous fingerer.
Insogna did his utmost to contrive excuses to both justify the stop and make himself look like something better than a butthurt cop.
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.”
At the district court, Judge Hurd swallowed the third excuse:
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.”
Presumably, Judge Hurd found the behavior “odd” because nobody north of the Throgs Neck Bridge has ever used such a vulgar gesture. Judge Newman wasn’t buying.
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.
Judge Newman, sitting in Manhattan, apparently has somewhat greater familiarity with the gesture than upstate Judge Hurd. He knows stuff, like what giving a cop the finger means. It is not a signal of distress.
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.
As facially awesome as this opinion may be, this is really quite a significant holding, particularly in light of the arguments in favor of stop & frisk, that the court will not “lend judicial approval” to the violation of citizens’ right to be left alone on the off chance that an “ill-advised” act might be a signal for help.
While it’s my usual thought that engaging in foolish and pointless conduct, such as giving cops the finger, invites needless scrutiny and may well cost a person the great joy of an illegal stop, prosecution and lawsuit (which, even though Swartz prevailed here, has yet to produce any damage award to compensate for what he’s gone through), this might be the needed impetus to a new holiday: Give a cop the finger day.
Not because they necessarily deserve it, but certainly because police could stand being reminded that under the United States Constitution, we can. And there is nothing they can lawfully do about it. Hey, if everyone does it, they can’t stop us all.
H/T Alex Bunin