NY court: Flipping finger at cops not worth arrest

Updated 11:46 PM ET

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.

[eroteme2]

We must do with our middle fingers only what is allowed by law. But how about our middle toes?

[caljack430]

While I agree that this man has every right in the world to flip a police officer off, I'm baffled that the guy was embarrassed to be arrested in front of his grandchildren. I feel like he should be more embarrassed to be a grandfather who ACTS like that. Just because you have the right to do it, doesn't mean you SHOULD do it.

[tibiaornottibia]

Perfect.

[askagain]

caljack430 - Excellent post. Whatever happened to common sense and manners? I have never given a police officer trouble even when I felt that I was right. The police have a hard enough job without me adding to their frustrations. This guy may be within his rights but he acted like an idiot.

[john92021]

calling him an ass about equals a finger. Tie, no need to spend all that money for ego. My wife got a $400 ticket for making a legal right turn on a photo light. After court dates and judge it was dropped to $300 and was easier to pay it than fight it. They are not for safety but revenue collectors.

[mandiegracetaylor]

Flipping the bird is on par with mooning out a car window - yelling F U or screaming pigs....

Honestly when people do it to me- I want to do something - it feels like a violent deviant way to belittle me.

But I would not want this guy as a neighbor - everytime I say something to the dude - he would scream over the bushes, "FU - you're daughter is a ***** - you're wife is a **** and the post man pulls over to deliver mail to your door and it takes him 20 minutes!" He would threaten to have my dog impounded - and demand I prune back my trees back to my property or he will file a suit in small claims court. I would always be looking over my shoulder over this dude. I wish the police could really come and get these people and put them in jail.

But for a guy like that to see the world through bars - he would have to escalate things so badly that finely he would get arrested - but his neighbor would be so traumatized that they would have sold their house at a loss - took the hit on their credit - and moved into a rental some place just to have peace of mind.

The police see this dude every day on the force - and they have told countless people, "well, your neighbor will have to do something besides scream profanity and threats and call you names...." "you'll have to file a restraining order but that won't help since he is entitled to stand in his driveway and can flip the bird, cuss and threaten to poison your dog all day long."

People around the world have dropped to their knees before God himself because of a person like this- and now the courts are validating the guy's attitude - and one day he will feel so entitled, he'll finally engage in something big enough to land him in jail - I just hope his victims can more or less go on with their lives without PTSD episodes.

If I did something like that to a cop and my mom found out - and I'm a grown woman - my God, I wouldn't have to worry about four officers humiliating me - she would make me wish I never thought it up.

[rightontarget]

I agree that this behavoir is rude, stupid and obnoxious but what really bothers me is that the cops are supposed to be the "mature" ones in this type of situation. They are being JUST as childish by arresting this jerk for something as stupid as flipping them the bird. Seriously, what does that say about those in a position of responsibility like our police force? Good Lord, if we arrested everyone who behaved in that childish manner we would have no room in our jails for the real criminals. It was a "get even" situation, pure and simple, and the police should have not stooped to that level!!!! It is NOT up to the Courts to "validate" anybody's attitude. The best we can do about somebody's attitude is to IGNORE it! (something the cops did not do.)

[shnanamom]

I have a similar story. I was picking my daughter up from high school to leave town for a funeral. She was waiting at the front door for me so I simply pulled up to the curb. She saw me and started walking to the car. My younger son was in the back seat. Just as my daughter got in the car this man's arm came into my window, which was down, and started grabbing at the steering wheel of the car and trying to get to the keys. I was very frightened and pulled out quickly to try and get away. All of a sudden a police car pulled into the exit of the school blocking my path. It was the man who had put his hand into my window. He was the school resource officer and was dressed in plain clothes and never identified him self as a police officer. He handcuffed me and put me in the back of the patrol car in front of my children who were scared and crying. He charged me with reckless driving based on the fact that he said I squealed my tires when pulling out (which was not true). He said the reason he put his arm in the window was to try and prevent me from driving off because it was apparently illegal to pull up in front of the school and he wanted to give me a ticket. I tried to fight the charge, but the court upheld the charge and I had reckless driving on my driving record for 11 years AND missed the funeral. The officer claimed in court that he shouldn't have had to identify himself - I should have known who he was because my daughter went to school there (we were new to the town/school) and that his badge was clipped to his belt. If it was I couldn't see it - maybe below the window of the car or behind his sport coat. I couldn't believe that the court thought his behavior was appropriate. It was humiliating and traumatizing to both me and my children. I agree that cops do not "protect and serve" in America. All they do is harass, throw their authority around unnecessarily and collect revenue. I HATE COPS!

[confused2byu]

Not sure who is more ignorant, the cop who arrested this guy or the police department who wasted tax payers' money to fight this in court.

[consciousnes]

I would wager that none of the prior comments are from anyone over 50. Also I would wager that no police involved in any of the comments made were over 50. One of the reasons some police have an attitude is because of the attitude of the last two generations and their attitude toward any type of disapline. People who trully support the "RIGHT" thing to do, (Including the police) would respect each other and not only "NOT" give the finger to anyone, let alone a police office. People today have no respect for anyone other then themselves and from the looks of kids today, not even themselves.
A SOULATION???? "DISAPLINE", "DISAPLINE", "DISAPLINE"
Since 1973 when the military draft was abolished, the country has been going down hill. I have watched as kids curse at their parents, yell obsenities at police and wonder why they don't get respect from them. I have watched as kids walk down the street and have their pants drop to around their ankles. I have watched kids refuse to put down video games at the dinner table. Etc, Etc, Etc. Lets see, 1973, that started 40 years ago.

[HkB32652]

I was going to overlook your interesting spelling of the word discipline - please note that it is not spelled "disapline" even if you spell it incorrectly 4 times does not make it correct.
Oh and your screen name is mis-spelled also - you are missing the final s.

In response to your point - first I am 60 so it is not an age thing - the one finger salute is protected free speach, just as flag burning and picketing of military funerals by hate groups. Is flipping off a cop a smart thing to do, no, but is it a crime no again. Is it a crime to want to ask the cop who stopped you and caled for back up a question again no. YOu are right that when a person gives respect they should get respect, but that is also a two way street, using your parents example - if the parents shout and verbally abuse their kids that is just as disrespectful as kids shouting at their parents. No you will tell me that parents should discipline thier kids - yes they should but discipline does not include being abusive, in fact discipline delivered proplerly should be calmly and consistently applied.

[jtdev1]

You're right and wrong.

I agree with the disrespect of our younger generations, but you aren't seeing that the police have major issues here too.

Years ago they (the police) had common sense, if you did something wrong they would first try to get you home and keep you out of trouble with a stern warning. They didn't want to see you with a record branded for life over a simple thing, they weren't out there writing tickets like crazy only to get your money for the system.

Today's cops are out to file as many charges against you as legally possible (and illegally too) in order to brand you as a criminal as soon as any chance to do so arises. In a lot of cases they will force the chance if they can get away with it. They shoot first and don't bother asking questions later. How many instances of police killing unarmed civilians crop up each year? Heck just last week there was one in California, then there was one in Cleveland where they fired 137 shots at 2 people who NEVER HAD A GUN OR WEAPON. 15 of those shots were done 15-20 seconds after the first 122 already killed the people. Why???? They obviously break the law and are never held accountable.

The courts and prosecutors don't even bother to do anything about it.

This is why there is so much anger and distrust and this is causing the disrespect you mentioned.

[tmittelstaed]

Hear hear!

I have had several dozen encounters with police over the years.

Anytime I have called them for help - like when my car was busted into, or stolen, or things of mine stolen, all I got from them was a "too bad for you" expression of non-sympathy.

But I can count on the fingers of one hand the number of times I've been let off in traffic with a warning. Most of the time they write a ticket. I just paid off one a month ago - "improper lane change" a hundred bucks on baloney.

[jmailbox]

Seriously arresting a guy for the middle finger? Shouldn't they be giving the death penalty to the guy who threw a perfectly good doughnut into the trash?

Cops are lousy at their job, over-paid and nothing to do but harass people over getting the middle finger?

How about pulling over and giving tickets to the a$$hole drives who use the shoulder lane to get around traffic jams and sideswiping cars in the process. How about arresting corrupt wall street brokers stealing your life savings.

Like they couldn't do a better job

[jeffkro]

"feared the finger gesture was a sign of a domestic dispute"

Oh come on, this is so obvious cops scratching their heads to come up with anything to justify the arrest. Good on the federal court for allowing the lawsuit.