Second Circuit: Middle Finger To A Cop Is No Cry For Help — And No Reason To Detain

Posted On Thursday, January 17, 2013

The Second Circuit Court of Appeals ruled that the middle finger does not give rise to a reasonable suspicion to initiate a traffic stop.  In Swartz v. Insogna, No. 11-2846 (2d Cir. January 3, 2013), plaintiff-appellants appealed the U.S. District Court for the Northern District of New York’s grant of summary judgment, dismissing various claims including false arrest.

In Swartz, plaintiff-appellants were driving through the Village of St. Johnsville, New York, on their way to Mrs. Mayton-Swartz’s son’s house, when Mr. Swartz, the passenger in the car, noticed Officer Insogna in his police cruiser using a radar device.  Displeased, Mr. Swartz expressed his feelings by reaching his right arm outside the passenger side window and giving Officer Insogna the middle finger.  The Swartz’s, who were neither speeding nor committing any other traffic violation, continued driving until they reached their destination.  Upon reaching their destination, the Swartz’s got out of their car, only to notice Officer Insogna’s police cruiser approaching them with activated lights.  Officer Insogna ordered the Swartz’s to return to their vehicle, which they eventually did once Officer Insogna explained that he was initiating a traffic stop.

During discovery, Officer Insogna gave three reasons for why he initiated the traffic stop following Mr. Swartz’s use of the middle finger: (i) Mr. Swartz was attempting to get the Officer’s attention; (ii) to ensure safety of the passengers, as there might have been a problem in the car; and (iii) because Officer Insogna was concerned for Mrs. Mayton-Swartz’s safety, as there might have been a domestic dispute occurring.  Relying on Officer Insogna’s third reason, the District Court granted summary judgment and dismissed the false arrest claim, ruling that Officer Insogna had a reasonable suspicion to initiate the traffic stop, and therefore, was entitled to qualified immunity on the claim.

On appeal, the Second Circuit, refusing to adopt the lower court’s rationale, vacated and remanded its decision, reasoning that “[t]his 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 the automobile would call attention to himself by giving the finger to a police officer.”

The complete opinion can be found here: