Middle Finger Plaintiff Can Continue Suit Against Arresting Officers

The Second Circuit yesterday, in Swartz v. Insogna, vacated a summary judgment dismissing the plaintiff’s claims allegedly arising from giving police the middle finger.  (This is not the first time we have chronicled middle finger-inspired litigation.)  In its first footnote, the court briefly summarized the history of “giving the finger”, citing a case and a law review article discussing the issue.

As to the merits, the court initially found that giving the middle finger was alone an insufficient basis on which to stop the car:

The issue then becomes whether, on the Plaintiffs’ version of the facts, Insogna had reasonable suspicion that criminal activity or a traffic violation was afoot. The only act Insogna had observed prior to the stop that prompted him to initiate the stop was John’s giving-the-finger gesture. 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.

On the Plaintiffs’ version of the facts, the stop was not lawful, and it was error to grant the Defendants summary judgment on the Plaintiffs’ claim concerning the stop. … Nor were the Defendants entitled to qualified immunity on this claim because a reasonable police officer would not have believed he was entitled to initiate the law enforcement process in response to giving the finger.

Nor was it proper for the district court to grant summary judgment to defendants on plaintiff’s claim that he was falsely arrested for disorderly conduct.  Plaintiff allegedly said, from a distance of more than 20 feet and in a “normal voice” that he wanted to talk to the arresting officers “man to man”, retreated, and then mumbled under his breath.  (Neither officer argued on appeal that the giving of the middle finger was alone sufficient to establish disorderly conduct.)  The court held that plaintiff’s conduct, on his version of the facts, “could not create a reasonable suspicion that a disorderly conduct violation had been or was being committed”, since neither officer “observed any disruptive conduct, any threatening conduct, any shouting, or anything that risked a public disturbance.”   And because an objectively reasonable police officer would not have believed that probable cause existed, the defendants were not entitled, on summary judgment, to qualified immunity.  (The court did note, however, that at trial the issue of qualified immunity and the lawfulness of the arrest could be resolved either way.)

Finally, the court ruled that it was improper to dismiss plaintiff’s malicious prosecution claim, given that he was “required to appear in court in connection with criminal proceedings initiated by the defendant police officer.”  This case is thus different than one in which, for example, plaintiff seeks to recover damages for the issuance of a summons only.

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