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Subscribe to RSSA New York man arrested after he gave the finger to a police officer can sue police for malicious prosecution, a federal appeals court ruled Thursday, overturning a lower-court decision that deemed the officer's response reasonable.
In its decision, the 2nd U.S. Circuit Court of Appeals said that giving someone the finger is an "ancient gesture of insult" and "is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity."
The incident took place in May 2006, court documents say, when John Swartz and his wife, Judy Mayton-Swartz, were driving through the upstate village of St. Johnsville, N.Y., to the home of Judy’s son.
Swartz was in the passenger seat when he noticed a local officer, Richard Insogna, in a police car using a radar device. Expressing his displeasure, Swartz reached "his right arm outside the passenger side window and extending his middle finger over the car’s roof," according to court documents.
The couple continued their drive. They were not speeding or committing other traffic violations, but upon reaching their destination and getting out of the car, they saw an approaching police car with its lights flashing.
Ordering them to get back into the vehicle, Insogna told the couple this was a traffic stop and requested their documents. Swartz told his wife not to show the officer anything, prompting Insogna to say, "Shut your mouth, your ass is in enough trouble." Then, after checking the woman's license and registration, Insogna called for backup, according to court documents. Three other officers soon appeared.
After being told he and his wife were free to go, Swartz tried to speak with Insogna, but the other officers stepped in front of him.
Swartz was arrested after he either muttered or shouted, depending on whose account one reads, that he felt "like an ass."
At the station, he was told he had been arrested for disorderly conduct, a charge that was later dismissed.
Swartz's lawyer, Elmer Robert Keach III, praised the court's decision, The Associated Press reported.
"It reaffirms that just because you insult a police officer [it] doesn't give that police officer the right to detain you or arrest you and take away your liberty," Keach told The AP, calling the decision an "important victory for civil rights."
A lower-court in Albany had previously dismissed the couple's claim because police insisted they had stopped the couple out of concern for the woman's safety.
In his deposition, Insogna said Swartz's gesture made him "concerned for the female driver, if there was a domestic dispute.”
But the appeals court deemed his conclusion unreasonable. "Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred," court documents read.
The court added, however, that the merits of Swartz's lawsuit, which seeks unspecified damages, still must be litigated at a separate trial.
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Leave a Comment:
Good call. We do not police abusing their power.
Great. That means they can return the gesture without fear.
hahahahahahahahahahaha!
Where's your respect Swartz???
Policemen put their lives on the line every single rotten day. It's idiots like Swartz who create the us vs. them mentality. I hope the turd has a miserable life!
No they don't. The majority of them park, sleep, gossip or drive around aimlessly waiting for their shift to end and hoping that nobody calls them to actually DO anything.
I know of at least 2 cops (they're relatives of friends) who slow down when going on a call so that they don't meet up with any bad guys...they arrive just in time to fill out the paperwork and head home early.
Another expert "who knows a guy". The fact you think you have friends is a joke in itself. Neil, face it. You'll never amount to anything so give up now.
They do nothing. A few comments above they are all running speed traps. So what is it?
Face it. The majority here are clueless idiots without a life. Try to incite something then git running off crying like a little girl that you have been abused.
Lonesome--where's law that mandates we show respect to cops? Sure, they do an important job, but that doesn't mean that they can go around locking people up for nothing more than disrespecting police officers.
One of the glories of living in a free society is that we aren't required to show respect to anything that we don't deem, as individuals, worthy of respect. If Schwartz disapproves of police, he's free to say so in any disrespectful, non-criminal manner which he chooses, including flying the bird, without fear of police harassment.
If anything perpetuates the "us vs them" mentality, it's officers that feel obligated to teach citizens a "lesson in respect" (by which they really mean a lesson in fear) by slapping them in cuffs and arresting them on charges that they know full well will never be pursued by a DA with a brain.
I could never flip off a cop while driving. I need one hand to drive and the other to hold my beer.
"...concern for the woman's safety."
The Sky is the limit under the term of SAFETY.
The rest of the story. There was a ruling...still looking for it...some time ago that sign language carries the same weight as spoken language in legal matters. I do not remember the specifics of the case...still looking...but-If I tell a Cop, "f---off" I can go to jail, and rightfully so. So what does the finger mean? Just saying.
It just means the guy has a little stiffy for the cop. It's actually a gesture of affection, but we live in a reverse universe.
No you are in a reverse universe.
But... you and I are in the same universe.
Bobw, I'm aware of the case you are referencing. In terms telling a cop "f--- off" getting you hauled in, it involved that being a response to a lawful order from the police officer (I believe it was was "show me your license."). In essence, obstructing a police officer from his duty. If you were simply walking down the street, passed a cop, and said "f--- off" that would not constitute a reason for an arrest. Although th officer would probably want to have a conversation about why you said that, which would probably lead to some lawful commands from the officer that you would have to obey, but that gets in to more challenging territory.
If you do that in Los Angeles or Long beach, Calif, the cops will beat you so bad, you wont remember who did it to you.
Don't forget Fullerton.
The digitus infamis (or digitus impudicus) to all cops!
Cops are lying sons of b*tches who abuse authority all the time. Two years ago I got stopped by an ahole around tampa florida who gave me a ticket for speeding, another for no registration and a third for no insurance, despite the fact I clearly flashed my insurance card in his face and the car was a rental and I showed him the rental agreement. I hope they take that bascterds donuts away.
At least he didn't tack on another hundred dollars for "failure to sign the back of your registration card". Yes, apparently they can do that and it's a very common practice among sh*t head cops with little peckers and inferiority complexes in a little crappy, crooked town named Society Hill, S.C. The bastards got me on that crap last year. It's a known speed trap so I was going 30 in a 35 zone. He pulled me over saying that driving slower than the speed limit was "suspicious". As soon as he got ahold of my DL and registration he barely even glanced at my DL and went straight for the back of my registration looking for that little $100 technicality. If you guys ever drive through there make sure to throw all your trash out the window on the side of the road on your way through.
Oh, you morons think the officer made his own rules? You morons think all guys with radar have set up a speed trap! How about the mother running out to the road, only to find out some clown like Michael was speeding through the neighborhood, and hit her child. I don't think you would hear all this negative garbage about trying to slow the speeder down!!
OK - the extension of the middle finger toward a figure of authority showing displeasure with that figure of authority has been deemed OK by the court, why then would it not be OK to show the same gesture to a judge in a courtroom setting when one is displeased with that authority figure. I am not siding with the police on this one, but I think this judge has opened up a can of worms that will be hard to close. I guess this judge has never heard of "case law". Anyway your honor have a nice day, ilii.
Now THAT would have been funny if the cop would have given the Judge the finger after he ruled "not guilty". What could the judge have possibly said? What a wasted opportunity!
I'd guess the judge could have fined him or charged him with something or other, but not had him arrested or detained. But it would have been funny for sure.
Contempt of court.
This happened in 2006!!! That means that just because one guy was a jerk and one officer took it personally, we had to pay thousands upon thousands of dollars for all the appeals, court time, etc. What a waste of money.
Our country is becoming a disgusting cesspool of lowlifes. Now the law is supporting it.
The lowlifes are the crooked out of control cops who think they can do whatever they please. You are a clueless little darling that needs to go back to your Mother Goose stories... you have ZERO real world experience.
The ruling didn't say it was alright to flip the bird at a cop.
The ruling was that that action alone was not sufficient to warrant being pulled over. We have both rights of free speech and that forbid unreasonable search and seizure. Although many people may feel that this or certain acts may be disrespectful, that alone is not a reason to be pulled over. It has to be taken in context with everything else.
Police are human and work under a lot of stress, so making this kind of gesture to them isn't the smartest thing to do, but there's no law against being stupid. However, do it and your vehicle will be remembered and for any future infractions will be pulled over in a minute.
Sounds like you must be a disgruntled cop? go fuc* yourself! It is LEGAL to call a cop any name you want to call them, as well as any insulting gesture. This is the problem when high school dropouts are hired as cops. Police are not exactly the sharpest tacks in the box. In fact, police are some of the dumbest people out there. For most, it is the only job they could get, as they are generally less intelligent. Time to start polygraphing police for any disputed arrest and fire and prosecute those caught lying. What fun it will be!
"To serve and protect"
Themselves.
This is great news... and common sense.
It is long overdue that City Commissioners everywhere get crooked pigs under control and fire the bad ones.
The next step should be polygraph tests for all disputed arrests and police reports. Any cop caught lying should be immediately fired and prosecuted and jailed.
Crooked pigs are a bigger problem than what the average person is aware of. The public does not realize this until they become the victim of crooked cops and crooked prosecutors that seek to protect them.
Weeding out and exposing the scumbag cops and putting them in jail where they belong should be a priority for all cities.
The stupid pig who arrested this innocent man should be arrested himself and put in jail for a year or two, and lose his job and any pension he might have coming. Pigs like this should also be personally liable for violating someones rights. Hope the city that hired this stupid cop gets a huge judgement against it in court. Only wish I could be on the jury!
Corrupt Law is worse than none at all !
A cop is no more special than any other person. If you can flip me off on the street you should certainly be allowed to flip off a cop. It's not very polite but it falls under the old "sticks and stones may break my bones but words will never hurt me" clause.
What I did not like in the article was the cop making up a story that he felt there might have been sonme sort of domestic dispute. Hogwash! He was just pissed and abusing his power.
Local cops on traffic duty are only around to gather revenue. Do you hear me Machias PD?
when i get a ticket for speeding its my fault. i go to court and try to get it reduced. cops dont make speed limits its politicians. everyone on this post would call 911 for the police if they had emergency bar none. if bashers can do better then put on the badge and work the streets and deal with people like yourselves. me id rather work my 9 to 5 with weekends off. michael 1601 should take his 4.0 and put on uniform and show the rest of us how to be a 4.0 cop. nice picture of you with your grandfather mike
The police do no favors... they are being PAID to respond and protect.... that is their job FOOL! No one is forced to be a police officer. Cops are no angels. There are many crooked ones. Again, they are (over)paid for what they do, and chose the job. Cops deserve no special treatment because of their occupation. No one is forcing them to work the streets any more than a doctor is forced to treat the sick. Try growing a brain before posting!
sayitlikeitis then you should go out and protect and serve and show us how tough you are. if you choose to speed and give them the finger then that just shows your parents failed to teach you common manners. just shows how ignorant you are to think that not giving someone the finger is special treatment. of course if you needed help you would call 911 for the police to come help you
Clearly you have lower intellect parents, and the acorn did not fall far from the tree. You also smell of pig...
And my tax dollars are paying the police to help me if needed... the pigs are not doing volunteer work! They will come when called or lose their jobs... as simple as that.
I would suggest re-reading my post above... it clearly addresses every point you make. Are you a high school dropout by any chance? Clearly you have problems with comprehension of the written word.
another stupid post by sayitlikeitis you obviously are sexually frustrated
this is me giving your your mother the finger! lol you really must love bacon since all you talk about is the smell of pig. you must be mistaking me for your dear old mother!
Where do I start? John is a dick. His finger was unnecessary and vulgar. Richard is also appropriately named. Welcome to America - people, and drivers especially, flip each other off all the time. Dick 2 should not have arrested Dick 1. An "ancient gesture of insult?" Really? Seems there are a lot of dicks in this story.
What happened to moral common decency and respect for others? This is completely unacceptable!! What "court" made this up?
It is called freedom of speech and freedom of expression..... the same thing that allows a clueless idiot like you to post your misguided and flawed thought process.
TO: stormy-766389 who wrote:
I don't think it's cool for cops to stalk a person and then trump up charges in order to arrest a person for giving them the one finger salute, and apparently the court didn't think that was appropriate behavior for cops to engage in either.
I'm happy with the court's ruling.
another stupid post by sayitlikeitis
freedom of speech like saying sayitlikeitis has a mother who looks like a pig? that the freedom of speech you mean?
So this all begins with a passenger flipping the finger to a cop with a radar gun. That was unnecessary, disrespectful and stupid.
If you're going to put yourself out there by demonstrating your stupidity and disrespect for others… You should expect consequences. Giving the finger to a cop ups the ante. And if you do it to someone other than a cop… You should expect the unexpected.
Even though I live in upstate New York, I would not take this as a carte blanche decision that I can get away with giving cops the finger. It's never going to turn out very well.
What a stupid, asinine thing to do! Grow up.
LG says And if you do it to someone other than a cop… You should expect the unexpected.
But here's the rub--if you do that to someone other than a cop, and person responds with anything other than the finger and maybe a few choice words, he'll be the one headed jail or liable for assault and battery, etc. An average citizen puts his hands on someone simply for being flipped off, telling the judge "but he flew the bird at me" doesn't get you off the charges.
But a 1st grader who points his finger and says POW gets a one day suspension from school!?!
must not have been middle finger!
Being a former Aux. Police Officer and have worked along side Regular Officers, I can state from personal experience that we that wear/wore the Blue Uniform are human beings with our own faults and short comings. NO one is perfect, we all make mistakes. "Flipping off" a Police Officer is wrong, however if the Officer over reacts and he/she themselves behave in a manner unbecoming. They SHOULD be taken to task for their behavior, we are a country under the rule of law. NO ONE is above that, NO ONE ! Anyone out there that has worn the Blue, you know to what I speak.
~Good, he should feel like an ass!!! What is he, like 12...giving a cop the finger -really?! I would like to see Mr. Ass give the judge the finger, I have a feeling it doesn't work both ways! Just another confirmation from our legal system, that there is no respect what so ever anymore in this country. I could imagine the repercussions, if the cop gave him the finger back...heh, he probably would have demanded repect...hmmmm -LOL!