Courts Once Again Rule we can Flip Off Cops so why are Cops not getting the Message?

PINAC file photo (Photo by Carlos Miller)


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:

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.

About Carlos Miller

Carlos Miller is founder and publisher of Photography is Not a Crime, which began as a one-man blog in 2007 to document his trial after he was arrested for photographing police during a journalistic assignment. He is also the author of The Citizen Journalist's Photography Handbook, which can be purchased through Amazon.

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  • genewitch

    let’s see. On one hand you have 2+ years of court and lawyer fees to deal with, plus the hassle and fright of being arrested.

    On the other hand, the cop won’t even feel the lawsuit. Neither will the judges, jury, prosecutors, or court clerks.

    It’s hard to imagine why cops arrest people for flipping them off. I can’t fathom how it would be worth it for them.


    • Patrick Henry,The2nd

      They do it because its contempt of cop and because they can.

      In a just society they’d be fired and prosecuting for rights violations.

    • Tom Mokrzecki

      Oh yeah, the cop will definitely feel the lawsuit. The appeals court plainly said that the officers are not entitled to qualified immunity. That means the cops will be personally liable for the judgement.

      • ExCop-Lawyer

        No, that doesn’t mean that they will be personally liable, it just means the case won’t be dismissed. In most states, the officers are indemnified by their employer up to a certain amount. One sues the officers to get at the deep pockets of the government. The officers don’t normally have enough assets to make it worth while to sue them.

    • Fuckyoupigs

      its bc they are power driven pigs hell bent on showing their body’s ability to produce testosterone…Cops were usually bullied as youths so this is their way of enacting revenge..take their gun away and they’ll get their ASSES BEAT DOWN…I could care less about their badge bc many cops and their badges lost respect of the population a long time ago…Those badges are supposed to represent honor, but only represent the bully tactics brought on by an impending police state…I say, flip them off, dare them to do something that will end their career…then maybe these SS wannabees will get the picture that we the people aren’t putting up with their bullshit anymore…Cops need to fear us to respect us evidently…bunch of pansies…Its funny how they’re always there when you don’t need them but when you do, somehow the harassers are nowhere to be seen….this govt and its thugs are painting us into a corner, where our only option is to fight back

  • SFDB

    Is that Ines in the photo?

    • Carlos_Miller

      An old file photo from a meetup at Monty’s. I always wanted to use it in an article.

  • Jon Quimbly

    They will continue to get away with it because of the thin blue line protecting LEOs from accountability for false arrest.

    • LastManOutTheDoor

      LEOs will continue to perform false arrests until enough citizens have the spare time and cash to strip the officers of their qualified immunity and pursue legal action to it’s constitutional conclusion. Certainly Police Department Internal Affairs and the local District Attorney are not going to do it for you.
      Rarely is there justice for the poor, so build a personal legal defense fund. Odds are you, or a close family member, would find it handy at some point in your life.
      Was involved in several such situations many years ago (once even threatened with murder). Did not know my rights and certainly had no cash to pursue it, but lots of time…

    • TheTimeIsNow

      I think you mean the blue wall of silence.

  • Clark

    Well, while I’m glad that this is being protected, this ranks up there with flipping off random people, or more on the subject of this blog, continuously taking pictures of one person on the sidewalk while not actually impeding or “stalking” them. Is it legal? Yes. Would you win in court? Eventually. Does that mean you should do it? No.

    • genewitch

      right. can you make me a list of what is and is not acceptable to do near/around/by/in front of peace officers?

      Make sure it’s all inclusive, for all jurisdictions and levels of government they represent.

      • LastManOutTheDoor

        Pretend they are invisible while conducting your self so lawfully that Mother Teresa and the The Pope would mock you. That should do it.

        • TheTimeIsNow

          Conduct yourself like a serf in a police state and delude yourself about living in the land of the free to make it more palatable.

    • JdL

      Are you seriously saying that you can’t tell the difference between flipping off a cop and flipping off a random person? Perhaps you haven’t noticed, but cops routinely engage in behavior that is worthy of being flipped off (actually, a much stronger reaction would be appropriate much of the time), whereas random non-cops pretty much mind their own business.

      • Clark

        What? Doing their job is worthy of being flipped off? Until the cop made an issue of it, no one knew if he were a good police officer, or a bad cop. Unless you’re just looking for a reason to raise a ruckus and cash in, there’s just no reason to deliberately provoke them. Even if you’re completely in the right, it’s still not a good idea. Good grief, maybe this site is just a bunch of cop-haters now. It’s one thing to hate the bad cops and want change when they provoke things, but it’s quite another to immediately assume all police are dirty cops worthy of being flipped off!

        • LastManOutTheDoor

          So true. I questioned Carlas about how he worded a previous story and was instantly dog piled with negative comments. Comments that personally attacked me and had no relation to the issue I had raised.

        • TheTimeIsNow

          Insogna clearly demonstrated why he was a cop worthy of contempt based on his reaction. Why is the finger so provocative for LEO. Poor self restraint or narcissism. They know they are not fireman. You’re angry because it was entrapment by baiting the pig. Insogna was accurately profiled.

          • Clark

            After the fact. What did he do BEFORE he was provoked that necessitated being flipped the bird? I’m not angry that it’s entrapment, I’m not angry at all. I simply see no need to flip off a cop who hasn’t done anything yet.

  • Christopher McKenna

    I can’t think of a reason not to do it, in particular.

  • JdL

    Poor delicate little cops are SO fragile, and their feelings are SO easily hurt, that a mere gesture of disapproval sends them into a tailspin of depression. And of course, they also think that they’re not only above the law, they ARE the law, and for a mere mundane to insult them is unacceptable, if not completely unthinkable.

    Was there ever a more pathetic creature than a cop?

  • cycledoggz

    I guess it goes to the core of the gesture, cops are assholes and need to f**koff…People have lost all respect for LEO’s , and as well they should…Just another criminal gang..

  • Johnny Bliss

    cops are scum

  • Nemo

    Carlos, you have a typo, unless you intended to use “quality immunity” rather than “qualified immunity”.

    This is another example of why people should be able to sue (if not prosecute) cops who abuse their authority in their own persons. Shifting the burden of the penalty onto the taxpayers does little do deter bad behavior, Doing such penalty-shifting is like imprisoning a murderer’s second cousin for the crime, and letting the killer walk.

  • $5554686

    In my county a guy yelled “FUCK YOU” at a cop and got arrested. He then sued and won. The courts ordered the entire pig dept to take anger management classes. Blow me LEO

  • Carl M.

    I was stopped, illegally detained and illegally searched a week ago by a cop who says that I flipped him off and had therefore committed “assault”. (He actually reached into my pocket and pulled out my ID when I refused to identify myself.) I actually flip him off since I was carrying an armful of groceries and balancing an umbrella in the freezing rain that occurred that day in St. Louis. I did not flip him off but I can see why people do. I am in the middle of filing a complaint against this cop who threatened me as well. I am just as distressed by the run-around I am getting during the complaint filing process and by how many of the cop’s cohorts have – in an attempt to intimidate me – been circling and stalking me. One even accused me of loitering just yesterday as I was – wait for it – standing at a bus stop waiting for a bus.

  • Kevin