Second Circuit Addresses Case Involving Giving Officer ‘The Bird’

The US Court of Appeals for the Second Circuit issued an interesting opinion, yesterday, that has gotten national coverage. It’s of local interest as well, since it came out of an arrest that took place in Montgomery County, New York. The case is captioned Swarz v. Insogna.

The case has garnered wider attention, we suspect, because it was sparked by behavior that most people would consider ‘naughty’. Mr. Swarz, a passenger in a car, gave Officer Insogna the finger. Officer Insogna then chased the car down and seized Mr. Swarz and the driver.

The Huffington Post covered the story with the headline “Flipping Off Police Officers Constitutional, Federal Court Affirms.” That’s not the thrust of the opinion, though. The Court did note that flipping the bird is constitutionally protected. But it did this only in passing, because that is settled law. In People v. Stephen, for instance, which was a case out of New York City, the defendant’s behavior included “clutching his [own] genital area with his hands” and making comments and suggestions to a police officer that were about as vile as they could be. Because the defendant’s actions could not be interpreted as genuine threats, however, they were constitutionally protected.

Compared to the behavior in Stephen, merely giving someone the finger is mild, and in Swarz v. Insogna, even the officer didn’t pretend that the gesture by itself was an offense. The question, instead, was whether this protected behavior gave the officer the right to seize the maker of the gesture ‘on spec’. Whether, in fact, “[t]his ancient gesture of insult is … the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

According to the Second Circuit,

The officer 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.”

The Second Circuit didn’t appear to buy any of these arguments, and found that on these facts seizing the car’s occupants was not justified. What is truly troubling about the case is that the trial court, whose decision was overturned, accepted the officer’s clearly spurious explanations in the first place. The bottom line appears to have been that a man who would dare to be rude to someone who – with the full power of the state behind him – could chase him down, seize, and ultimately arrest him, is a dangerous man who ipso facto should be seized.