Free to Flip: Police Arrest For Bird-Flipping Not OK

Photo by Noelle Murata

From time to time, Minnesota Litigator wanders outside of its jurisdiction, exercising its discretion to comment on legal matters in other parts of the country or to comment other areas of the law outside civil litigation. The standard applied is “totality of the circumstances” and the decision is neither reviewable nor appealable.  Not sure what to say if you have a problem with that.  Atypically, I have pugnacious non-verbal response in mind for some reason.

But, seriously, a recent decision by the U.S. Court of Appeals for the Second Circuit has been getting widespread attention over the past week because, reversing the trial court, the Court of Appeals permitted a plaintiff’s civil rights complaint to go forward, which is essentially premised on our constitutionally protected right to express ourselves digitally to law enforcement without fear of provoking arrest.

And, by digital, I am not referring to bits’n’bytes, of course.  See footnote one in the opinion for a brief history of the middle finger curse.

Essentially, John Swartz flipped the bird as his wife drove past Officer Richard Insogna, a New York police officer.  Mr. Swartz was apparently expressing his disapproval of speed traps, which he appears to think are not a productive or positive use of tax-payer funds or our law enforcement personnel.  (He is quoted in the press, incidentally, saying that he has never done this before or since and that he regrets having done it.)

The odd thing about the case is that Officer Insogna testified that he was NOT pulling over Mr. Swartz for flipping the police officer off.  That would have made the case easy.  Rather, the police officer testified under oath that the gesture caught his attention and the officer thought obscene gesture might have been a cry for help.

The Court (rather sensibly, in my view, held):

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 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….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.