The case is Swartz v. Insogna, decided on January 3. This case reminds us once again that often the most obnoxious behavior is legal. John Swartz and his wife were driving around in an upstate New York village. Swartz was a passenger in the car when they passed a police officer using his radar device. According to the court, "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 Swartz's car was not speeding or breaking any other laws, the police officer pulled them over and ordered them out of the car. John approached the officer and demanded that they speak "man to man." John then thought better of it and walked away, mumbling to himself, "I feel like an ass." John was arrested, booked and charged with disorderly conduct. The charge was later dropped, and John sues the police.
While the district court dismissed the case on summary judgment, the Second Circuit (Newman, Lynch and Lohier) reinstates the case for trial. In stopping the car, the officer seized John under the Fourth Amendment. He may only do so if he reasonably believes the motorist or passenger is engaging in illegal activity. But John was doing nothing illegal. The officer says he was suspicious because "he thought John 'was trying to get my attention for some reason' and that he 'was concerned for the female driver." This defense doesn't fly. The Court of Appeals says:
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 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.Looking at the evidence from John's point of view (as this is a summary judgment motion), no reasonable officer could find that he engaged in disorderly conduct. The police had no right to stop the car. The disorderly conduct arrest was also unlawful. John mumbled, "I feel like an ass" after he said in a normal voice that he wanted to talk the officer "man to man." This is not disorderly conduct; there was no threat to public order. John didn't call himself an "ass" by shouting it out loud on Main Street. As he mumbled it, John did not threaten to breach the peace.
If you're into that kind of thing, a footnote to the case cites a scholarly article on the use of the middle finger and the law. That article can be found at this link.