Swartz v. Insogna
2013 WL 28364, 2013 U.S. App. LEXIS 186, 704 F.3d 105 (2013)
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Rule of Law:
An obscene gesture directed at a police officer, such as giving the middle finger, is not, without more, a sufficient basis to provide an officer with reasonable suspicion to initiate a traffic stop or probable cause for a disorderly conduct arrest.
Facts:
- John Swartz was a passenger in a car being driven by his wife, Judy Mayton-Swartz, through the Village of St. Johnsville.
- Swartz saw a police officer, Richard Insogna, using a radar device at an intersection.
- In response, Swartz reached his arm outside the passenger window and extended his middle finger over the car's roof in the officer's direction.
- The vehicle was not speeding or committing any other traffic violation.
- Upon arriving at their destination, the Swartzes exited their car.
- Officer Insogna then arrived in his police car with its lights flashing and ordered the Swartzes to get back into their vehicle.
- After a brief verbal exchange, during which Swartz asked to speak to Insogna 'man to man' and then muttered 'I feel like an ass,' another officer, Kevin Collins, arrested Swartz.
- Swartz was charged with disorderly conduct.
Procedural Posture:
- John Swartz and Judy Mayton-Swartz filed a civil rights lawsuit against police officers Richard Insogna and Kevin Collins in the United States District Court for the Northern District of New York, a federal trial court.
- The defendants filed a motion for summary judgment, asking the court to dismiss the case without a trial.
- The District Court granted the defendants' motion for summary judgment and dismissed the plaintiffs' lawsuit.
- The plaintiffs, John Swartz and Judy Mayton-Swartz, appealed the District Court's judgment to the United States Court of Appeals for the Second Circuit.
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Issue:
Does a police officer have reasonable suspicion to conduct a traffic stop or probable cause to arrest for disorderly conduct when a passenger in a moving vehicle gives the officer the middle finger, without any other indication of criminal activity or a traffic violation?
Opinions:
Majority - Newman, J.
No. A police officer does not have reasonable suspicion for a stop or probable cause for an arrest based solely on the gesture of giving the middle finger. The court reasoned that the officer's order for the Swartzes to get back into their car constituted a seizure under the Fourth Amendment, which requires reasonable suspicion of criminal activity. The only act observed by Officer Insogna was Swartz's gesture. The court rejected the officer's explanation that he thought the gesture might be a signal of distress, stating, 'the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.' The court concluded that this 'ancient gesture of insult' is not a basis for suspecting a traffic violation or criminal activity. Similarly, Swartz's subsequent conduct, under his version of the facts, did not provide probable cause for a disorderly conduct arrest, as it involved no threats, shouting, or risk of public disturbance. The gesture alone is a form of 'pure speech' and does not violate New York's disorderly conduct statute unless coupled with an intent to create a public disturbance.
Analysis:
This decision reinforces the principle that expressive conduct, even if offensive and directed at law enforcement, is protected speech that cannot, by itself, justify a Fourth Amendment seizure. The court firmly limits police discretion, clarifying that an officer's personal pique or a subjective, unreasonable interpretation of a gesture is not a substitute for the objective reasonable suspicion required to initiate a stop. This ruling serves as a significant check on retaliatory police action against citizens for perceived disrespect and solidifies the legal distinction between offensive speech and conduct that genuinely threatens public order.
