The year got off to an excellent start with a federal appeals court affirming that it is not only permissible to give cops the finger from a passing car, assuring that they are not above the law as so many of them like to believe, but that citizens can sue them if they are arrested for it.
Today’s decision from the Second Circuit is not the first time that a court has ruled that flipping off police is legal and it probably won’t be the last judging by the number of times I’ve covered it on this blog.
In fact, it is so common for police to arrest citizens for flipping them off, usually under disorderly conduct charges, that American University legal scholar Ira P. Robbins published an extensive paper on the subject in 2008, going back decades in case law, clarifying that unless the obscene gesture is accompanied by “fighting words,” or words that convey a threat, it is considered merely an expression, which means it is protected speech.
But despite this, prosecutors insist on prosecuting these cases, most likely because way too many judges refuse to acknowledge the Constitutional protections of this act.
In the most recent case, stemming from a 2006 arrest, New York resident John Swartz was a passenger in a car his wife was driving when they passed a police officer using a radar detector.
Swartz stuck his hand out the window, extending his middle finger towards the officer as his wife, Judy Mayton-Swartz, maintained the speed limit and committed no other traffic infractions.
When they pulled into the driveway of their destination, the officer, Richard Insogna of the St. Johnsville Police Department, pulled up behind them.
The couple emerged from their car and were ordered back inside, automatically violating their Fourth Amendment rights considering they had not committed a crime or traffic infraction.
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 the collected Judy’s license and registration, returned to his police car to check the documents, and called for backup. Three other officers soon appeared.
Insogna returned to Judy’s car, gave her back the documents, and told the Plaintiffs they could go. John then got out of the car and asked if he could speak to Insogna, saying “I’d like to speak to you man to man.” As he started walking toward Insogna, who was more than 20 feet away, three other officers stepped in front of him. John stopped, walked away from the officers, and said to himself in a voice apparently too low for his words to be understood, “I feel like an ass.” One of the other officers asked John what he had said, and John repeated his remark loud enough to be heard. At that point Defendant Collins said, “That does it, you’re under arrest,” but did not say for what.
John was then handcuffed, placed in a police car, and driven to the police station, where he was given an appearance ticket and released. At the station, he was told he had been arrested for disorderly conduct. Insogna subsequently swore out a complaint, which he filed in the local criminal court, charging Swartz with violation of New York’s disorderly conduct statute. Under New York law, such a complaint “[s]erves as a basis . . . for the commencement of a criminal action.” N.Y. Crim. Proc. Law § 100.10(1). After he returned home, John retained an attorney. The charge remained pending for several years, during which John made three court appearances. The charge was ultimately dismissed on speedy trial grounds.
The fact that a disorderly conduct charge remained pending for years, enduring three court appearances, only to be dismissed on “speedy trial grounds” should have been enough to allow Swartz to proceed with a lawsuit.
But a New York judge in 2011 granted the officers quality immunity on the basis that “an objectively reasonable officer could have believed that there was probable cause for a disorderly conduct arrest.”
An objectively reasonable officer would not have pulled them over in the first place, but only an objectively reasonable judge would see the logic in that.
Fortunately, the appellate judges were able to see through the contempt-of-cop charge:
Even with the wide range of conduct subsumed under New York’s expansive definition of disorderly conduct, John’s conduct, on the Plaintiffs’ version of the facts, could not create a reasonable suspicion that a disorderly conduct violation had been or was being committed. Neither Collins, whom John says arrested him, nor Insogna, whose report says he made the arrest, had observed any disruptive conduct, any threatening conduct, any shouting, or anything that risked a public disturbance. Whether or not giving the finger is properly considered an obscene gesture, neither Collins, who had not observed the gesture, nor Insogna, who had observed it and was likely piqued by having seen it, makes any claim on appeal that the gesture was disorderly conduct. Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred.
“The disorderly conduct statute at issue here does not circumscribe pure speech directed at an individual. Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder . . . .” People v. Tichenor, 89 N.Y.2d 769, 775 (1997). On the Plaintiffs’ version, probable cause did not exist for an arrest for disorderly conduct. And because an objectively reasonable police officer would not have believed that probable cause existed, neither Defendant was entitled to the defense of qualified immunity on a motion for summary judgment. Of course, the defense of qualified immunity and the lawfulness of the arrest itself will appropriately be in issue at trial, where both versions of the episode will be presented.
Is tempting to see this as a final victory, but we know it’s not.
Here is an excerpt from Robbins paper, just to give you an idea of how common it is to get arrested for this act:
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In prosecuting users of the middle finger gesture, law enforcement officials often rely on disorderly conduct or breach-of-peace statutes or ordinances. In order to survive constitutional scrutiny after Gooding, state courts must limit these statutes to reach offensive language only if the speech rises to the level of fighting words. Thus, like the f- word, the middle finger gesture should fall within the scope of the fighting words exception only when it is accompanied by highly threatening language or aggressive movement. For example, a police officer in Kansas stopped a car and arrested a passenger who had “flipped the bird” as he passed a parked patrol car. Because the Kansas Supreme Court had limited the state’s disorderly conduct statute to fighting words, the State argued that the gesture amounted to fighting words. The federal district court expressly rejected the State’s “unprincipled assertion” that one who gives the finger to a police officer automatically forfeits First Amendment protection. The court went on to find that the police officer was not entitled to qualified immunity for making the arrest. It concluded that a reasonable police officer would not have grounds to believe that the defendant was engaged in disorderly conduct when he gave the middle finger to the officer, because the statute only applied to words that “by their very utterance inflict[ed] injury or tend[ed] to incite an immediate breach of the peace.” Similarly, in Sandul v. Larion, the U.S. Court of Appeals for the Sixth Circuit stated that police officers should know that use of the words “Fuck you,” accompanied by the middle finger gesture, do not constitute fighting words, and therefore could not fall within the scope of any disorderly conduct statute. In that case, Sandul was arrested after he shouted “Fuck you!” and gave the middle finger to protestors outside an abortion clinic as he drove past them at a high speed. The court explicitly stated that use of foul language alone does not constitute criminal conduct.
Thus, individuals should not be punished for using the middle finger gesture as long as the gesture is not accompanied by words or other gestures that “by their very utterance [or use] inflict injury or tend to incite an immediate breach of the peace.”
Arrests and prosecutions under statutes prohibiting the use of obscene language or gestures have resulted from a student giving the finger to a police officer from a school bus, a driver giving the finger to a police officer while driving past the officer’s stopped car, and a woman giving the finger and shouting “Fuck you, asshole!” to a public highway worker. Convictions on these grounds, however, typically are overturned at the appellate level because the lower courts have ignored prevailing Supreme Court obscenity jurisprudence and issued rulings that violate the First Amendment.
Flipping cops off is not something I would recommend, unless they totally ask for it, but the fact that so many cops, prosecutors and judges are failing to see that this is Constitutionally protected behavior almost calls for a nationwide movement of flipping cops off on camera – if only to drive the point home that we have the right to do so.