Police

Flipping Off a Cop Is No Crime, Appeals Court Says

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In May 2006, Officer Richard Insogna of the St. Johnsville, New York, police department arrested John Swartz. Why? Because fuck you, that's why. No, really.

Swartz, a retired airline pilot, was  passing through St. Johnsville in a car driven by his fiancée (now his wife) when he noticed Insogna using a radar gun to catch speeders. Angered by what he deemed a poor use of police resources, "Swartz 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," as the U.S. Court of Appeals for the 2nd Circuit put it in a decision issued yesterday.

Insogna responded by following Swartz and his fiancée to their destination and ordering them back into their car when they got out. After he checked the driver's license and registration, there ensued a conversation, the details of which are a matter of dispute, that ended in Swartz's arrest for disorderly conduct, a charge that was ultimately dropped after dragging through the courts for several years. Swartz sued Insogna and Kevin Collins, an officer with the Montgomery County Sheriff's Department who participated in the arrest, for violating his Fourth Amendment rights. A federal judge dismissed the suit, concluding that Insogna's decision to pull the car over was justified and that the two officers reasonably believed the arrest was constitutional. The 2nd Circuit disagreed, highlighting the implausibility of Insogna's explanation for pursuing and detaining Swartz:

Insogna acknowledged in his deposition that he had not observed any indication of a motor vehicle violation. He stated, somewhat inconsistently, that he thought John "was trying to get my attention for some reason" and that he "was concerned for the female driver."

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.

As for the disorderly conduct arrest, it supposedly was based not on the hand gesture but on expletives Swartz uttered after being detained (including, weirdly, an insult he directed at himself, which according to both the cops and Swartz was the utterance that triggered the arrest). Since Swartz and the officers gave different accounts of what he said and how he said it, the court ruled that that it was premature to conclude the cops reasonably believed there was probable cause for an arrest (which would make them immune from liability for the arrest). "Abusive or obscene language" can qualify as disorderly conduct under New York law, but only when the speaker recklessly or deliberately creates the risk of "public inconvenience, annoyance or alarm." The statute also mentions "an obscene gesture," but Insogna did not cite the bird Swartz flipped as justification for the arrest, and in any case, the 2nd Circuit said, "such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred."

As American University law professor Ira Robbins notes in a 2008 law review article cited by the appeals court, police nevertheless have been known to arrest people for nothing more. Robbins argues that "the pursuit of criminal sanctions for use of the middle finger"—a venerable gesture of anger and contempt that people have used for thousands of years—"infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense." He notes that "the U.S. Supreme Court has consistently held that speech may not be prohibited simply because some may find it offensive." If cartoon frogs have a First Amendment right to flip people off (as the 2nd Circuit ruled in a 1998 decision overturning censorship of a beer label), surely humans do too.

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69 responses to “Flipping Off a Cop Is No Crime, Appeals Court Says

  1. Why? Because fuck you, that’s why.

    YES!

    1. They read us. They really read us!

      1. Well, not you, Brett. Just everyone else.

        1. Who are you talking to?

          1. I’m not sure, I thought it was a ghost.

  2. Sullum wins the blog for today.

  3. OT: I won’t be here for the PM Links so, here. Apparently, Idaho has a senator named Crapo, and he’s a lightweight.

    Crapo said he tried alcohol for the first time about a year ago, though he couldn’t remember the details. It was a misguided attempt to relieve stress, he said, and he always kept his use of alcohol hidden, drinking alone in his Washington, D.C., apartment. The night of his arrest was the first time he had driven drunk, Crapo said.

    1. The night of his arrest was the first time he had driven drunk, Crapo said.

      HAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

      1. while it’s POSSIBLE he’s telling the truth, statistically speaking, the average drunk driving arrest is a person who drunk drives approximately 50 times per year (once a week) according to the training I received.

        so he may just be damn unlucky, or he may be full of CRAPo

        1. DIAF

        2. Can you apply that same reasoning to abusive cops and conclude that the times they are caught represent a tiny fraction of the times they abuse their power?

          1. of course. abusive cops are frequently abusive. they are also a tiny %age of cops.

            1. they are also a tiny %age of cops.

              *snort*

              I’m glad I wasn’t sipping on anything when I read that! Thanks for the laugh!

            2. The very first encounter with a cop that I remember leads me to think otherwise. I was about 10, walking to the library with my brother, about 5. This was a rural Norther California town, unincorporated, septic tanks and heating oil, 1960. I imagine the worst crimes they investigated were high school seniors dragging a keg across the football field. We had just passed a sheriff’s substation which was only used at end of shift when a couple of deputies pulled up. Being a kid, I turned around with my thumbs in my ears and wiggled my fingers. The proper response would have been the same thing right back, which is what I expected. What I got was a loud stern spitting lecture and how hard a deputy’s job was, how dangerous, and how disrespectful I was.

              So fuck cops.

          2. Good one!

      2. I think the concept of “Cool story, bro” needs to be codified in law.

        1. Not to mention PWNing.

  4. file under “no shit, fascist cop”

    there is a lot of stuff we are expected to deal with and some nimrod flipping us off is amongst the mildest.

    1. You again? You are beyond shame.
      Bushmaster .223 is the new finger.

      1. Ummm, Dunphy seems to agree that the cop in question was out of line. Why is that “beyond shame”?

        1. Yeah, gotta agree here. Why are you giving dunphy shit for calling this fascist cop a fascist?

          1. Because fuck you, that’s why.

            1. Tonight at 8, then?

  5. I wonder how many tens thousands of dollars this guy has spent.

    Meanwhile I’m sure that the same cop continues to arrest anyone who flips him the bird, because the chances are very slim that the person has the coin to prove their innocence.

    1. you’re sure for no reason. the supreme court tells the cop he is wrong, but you are SURE he will keep doing it. must be nice to have such ridiculous convictions and be so omniscient

      1. excuseme. appeals court, not supreme court.

      2. Was the cop fined? Charged with a crime? Demoted? Fired? No, no, no, and no.
        Facing no consequences for his actions, he has no incentive to change his behavior.

        1. he has plenty of incentive considering a high court has told him he cabn;t do it

          1. “Now let the court enforce it” rings true here.

            1. “Now let the court enforce it” rings true here.

              Exactly. Other than throwing out the charges against the cop’s victim, what else will the courts do? I’m thinking not much.

              1. “Hey! Stop it!”

                “No.”

                “Ummmm…..”

                The End

          2. Which only matters if his next victim has the means to pursue it to a high court, which is highly unlikely.

            1. he got bitdch slapped by the court. he won’t be doing it again

              1. And you know this becaaauuuuuuse…cop intuition? Vulcan mind meld?

                Cause my bullshit detector says the asshole is MORE likely to do it again because now he’s PISSED that he got called on it after several years wasting resources fighting this.

                Only he takes it out on some other schmuck for some other nonsensical reason because FUCK YOU I’M A COP AND I HAVE THE POWER ARE WE CLEAR NOW CIVILIAN!!

              2. And you know this becaaauuuuuuse…cop intuition? Vulcan mind meld?

                Cause my bullshit detector says the asshole is MORE likely to do it again because now he’s PISSED that he got called on it after several years wasting resources fighting this.

                Only he takes it out on some other schmuck for some other nonsensical reason because FUCK YOU I’M A COP AND I HAVE THE POWER ARE WE CLEAR NOW CIVILIAN!!

                1. so nice I said it twice – ENTER KEY PWND!

              3. he got bitdch slapped by the court. he won’t be doing it again

                Really. If someone fought him on this this one time, how many other times has he chased someone down for flipping him off? I’m thinking every time he saw it.

                Now because one nobody with coin for a lawyer fought him all the way to a high court, one guy, he’s going to suddenly change his ways?

                Doubtful. Highly doubtful.

        2. This is an appeals court ruling after the district court threw out the case. Doesn’t this send the case back and tell the district judge to let it proceed, and that the two cops don’t have any immunity?

      3. No, he just knows cops. Let me tell you a little cop story, shithole.

        Dumbest cop EVER directing traffic out of a downtown parking ramp during rush-hour. He fills all four lanes of traffic with cars exiting the ramp, so that when the light turns green, no one waiting at the light can move forward because this dumb fuck just clogged up the street with cars. vehicles, at the light had to sit through several light changes before they could advance. It really fucked up traffic, which is the opposite of why the dumbfuck is there.

        So I file a complaint via Minneapolis’s 311 website under traffic control hoping to improve the flow of traffic. Well yesterday I got a letter from the fucking police department. Not the city, the fucking police department that I never contacted. And what did the letter from hog-central say? There was not enough evidence to support my claim and that the officer was doing a bad job and would not be reprimanded. Two things come to mind. First, there are scores of video cameras downtown, so they could have easily looked at film as I provided the time and location of the incident, so that’s some pig bullshit right there. But more importantly, if someone points out an officer performing poorly, the first thing you sick fuckers do is cover the bad performer’s ass, which is funny, because I was looking for improved traffic flow through officer training, not punishment. THAT is how fucked-up you pigs are.

        Shorter EAP? Eat shit and die, asshole.

        1. if someone points out an officer performing poorly, the first thing you sick fuckers do is cover the bad performer’s ass

          Well, duh. If you don’t cover his ass, what will he do when someone complains about you?

        2. I thought the FIRST thing was killing your dog, THEN covering up for the poor performer.

          Do I not have that right?

          1. Sadly, we can’t bring our dogs to the office.

    1. “Mr. Rogers teaches the children how to ask mommy for help.”

  6. “Abusive or obscene language” can qualify as disorderly conduct under New York law, but only when the speaker recklessly or deliberately creates the risk of “public inconvenience, annoyance or alarm.” The statute also mentions “an obscene gesture,”

    Talk about a law with a wide-stance.

    1. Ditto my reaction

    2. This thread seems fixated on Idaho politicians.

  7. Contempt of cop. The very worst of crimes.

    1. there are examples of contempt of cop that are, and should be a crime, like disobeying a lawful order (put your hands up) or something like that

      but our job is to defend the constitution, not destroy it, and this cop , simply put, was a fascist. i’d flip him off myself. if he’s too fucking fragile to deal with the finger, he should become an accountant or some other boring job

      1. I would bet a higher percentage of accountants handle being flipped-off better than the percentage of cops being flipped-off. Just saying.

      2. Odds that his chief and union will agree and he will be searching for an accounting job next week?

        Yeah, thats what I thought.

  8. Speaking of giving the bird, HyR still logs me out about 90% of the time when I try to comment. The comment doesn’t show up, and I am logged out and redirected back to the top of the post.

    You guys are damn lucky I have so little of value to add to any conversation.

  9. 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.

    Lying liars lie.

    1. Perhaps he was trying to tell the police that he had been kidnapped by the North Korean navy?

      1. DO SOMETHING, ARRIC BARRRRWIN!!

  10. I flew double eagles at a cop when I was in high school. He was in the drive through at the local Taco Bell. He got out of his cruiser and started to chase me, but I was across the field, down a gully, and over the cemetery fence before he had gotten across the field. I watched him huff and wheeze his way back across the field. I snuck along the gully back to my neighborhood, while the cops cruised the cemetery.

    I wouldn’t have run if I knew it was protected by the 1st Amendment. Oh, well.

    1. lulz

      I worked at the old BK in my town in HS. State cops used to stop there. One night I got out of work, they were eating in the dining area…so I took the opportunity to go into the parking lot and let the air out of the tires on their Crown Vic.

      I felt like a badass. I’m sure I’d have landed in jail if they’d caught me. My little jab at the PoPo.

      The look on their face when they came outside was priceless (I waited in my car in the parking lot next door to watch)

      True story.

      1. Just looked up the location on Google Maps satellite. The Taco Bell is now a Jiffy Lube (no one can tell the difference, probably). An the field is now a little subdivision with about 20 houses. The gully is still intact. The cemetery backed up to Indiana State Road 3, and was an excellent place to bomb cars with snowballs (Winter), and eggs (Summer).

      2. One year we were having our usual Halloween egg fights in the usual neighborhood and the one town cop (not my town, we had no police) came out and tried to stop us. We of course melted into the woods, but someone had left their carton behind. He picked it up and started throwing eggs at everyone who was disappearing into the trees…and hit his own car. Fucking. Hilarious.

    2. the 1st amendmenbt won’t protect you from rogue cops. and any cop who would chase you down for flipping him off doesn’t understand the 1st amendment.

      1. The 1st amendment isn’t supposed to protect people from rogue cops. Other cops are. Too bad that doesn’t happen:

        Swartz sued Insogna and Kevin Collins, an officer with the Montgomery County Sheriff’s Department who participated in the arrest

    3. Then you’d get to be a story on HampersandR. The 1st Amendment is groovy but doesn’t stop a taser.

      1. That’s what we need–shields of righteousness.

  11. Bad cops are the price we pay for civilization. Or something like that.

  12. Welcome to America! Cops think they are gods…nope, sorry, you’re not. I own you, you are MY employee!

  13. I would love to flip off every cop I see. Except the problem is this: cop can shoot you dead on the spot for no reason and get away with it scot free, anytime. Antagonizing these gangsters is not worth it, ever.

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