NY court: 'Flipping the bird' at cops not cause for arrest
"Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred," the court said
By Larry Neumeister
NEW YORK — A Vietnam veteran and retired airline pilot arrested after giving the finger to a police officer can sue police for malicious prosecution, a federal appeals court ruled Thursday as it reversed a lower-court judge who found the actions of officers reasonable.
The 2nd U.S. Circuit Court of Appeals noted that the act of giving the finger was "a gesture of insult known for centuries" and restored the claim brought by John Swartz and his wife after their May 2006 encounter with police as they drove through the upstate New York village of St. Johnsville, 50 miles west of Albany.
A lower-court judge in Albany had tossed out the couple's claim prior to trial after police maintained they stopped Swartz's car, which his wife was driving, because they feared the finger gesture was a sign of a domestic dispute.
The appeals court said such a conclusion was unreasonable given "the nearly universal recognition that this gesture is an insult." It pointed out in a footnote that Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle and that the first recorded use of the gesture in the United States may have 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.
"Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred," the court said.
But the 2nd Circuit stopped short of saying Swartz's lawsuit, which seeks unspecified damages, was a sure winner. It noted that a defense of qualified immunity and the lawfulness of the arrest will "appropriately be in issue at trial."
A lawyer for the police officers who arrested Swartz did not immediately return a phone message seeking comment Thursday.
Swartz's lawyer, Elmer Robert Keach III, praised the court's decision, calling it an "important victory for civil rights."
"It reaffirms that just because you insult a police officer doesn't give that police officer the right to detain you or arrest you and take away your liberty," he said.
Keach said Swartz was particularly upset because he was handcuffed and arrested in front of his grandchildren on Memorial Day.
Swartz was arrested after he reached his arm out the passenger side of a vehicle and over its roof and gave the finger to a local police officer after he saw the officer using a radar detector. Swartz and his wife, who were not speeding or committing any other traffic violation, then continued to the home of the wife's son. Once there, they got out of the car, and a police car arrived, its lights flashing, the appeals court said.
As Swartz walked to the car's trunk, he was ordered back in the car. He initially refused but later complied, the court said.
When an officer asked to see a driver's license and registration, Swartz told his wife not to show anything, prompting the officer to say, "Shut your mouth. Your ass is in enough trouble," the 2nd Circuit said.
After collecting the documents, the officer returned to his car and summoned backup, prompting three more officers to arrive at the scene. The officer then returned to the car, gave back the documents and told Swartz and his wife they could leave. Swartz got out of his car and asked to speak to the officer, but other officers blocked his path.
Swartz was arrested after he either muttered or shouted, depending upon who recalls the event, that he felt humiliated. A charge of disorderly conduct brought against him was dismissed.
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