Seize This!

Roman Officer: Seize him!

Josephus: Ah, seize *this*, honkus!

Comicus: Oh! Don’t ever say that to the cops!

Sound advice, from ancient Rome to modern America. But just because the cops might get pissed if you crack wise with ‘em, doesn’t mean the law will ultimately back them up. Thankfully.

Consider the case of Swartz v. Insogna, decided last week by the Second Circuit Court of Appeals (via).* Just the introduction tells you you’re in for something special:

An irate automobile passenger’s act of ‘giving the finger,’ a gesture of insult known for centuries, to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal.

I don’t normally quote footnotes, but the first one provides a little history of the gesture, beginning with Diogenes flipping of Demosthenes (citations omitted):

Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.

As for this case, John Swartz was in a car driven by his wife, Judy. At an intersection, he spied a local cop running radar:

John expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof. The Plaintiffs, who were not speeding or committing any other traffic violation, continued to the home of Judy’s son.

Alas, as Comicus points out, you don’t talk to cops that way. The officer, Insogna, pulled in behind the Swartz’s car. After he checked Judy’s paperwork (which was all in order):

John then got out of the car and asked if he could speak to Insogna, saying ‘I’d like to speak to you man to man.’ As he started walking toward Insogna, who was more than 20 feet away, three other officers stepped in front of him. John stopped, walked away from the officers, and said to himself in a voice apparently too low for his words to be understood, ‘I feel like an ass.’ One of the other officers asked John what he had said, and John repeated his remark loud enough to be heard. At that point Defendant Collins said, ‘That does it, you’re under arrest,’ but did not say for what.

The “what” ended up being that favorite squishy misdemeanor of officers everywhere, “disorderly conduct.” The charge was pending for “several years” before it was dismissed.

In the wake of all that, John and Judy sued Insogna (among others) for violating their Fourth Amendment rights by seizing them and arresting John without probable cause. Their suit was dismissed by the district court. But on appeal, taking the facts as asserted by the Swartzes (as the law requires at that point), the Second Circuit disagreed and reversed.

As to the seizure, the court concluded that Insogna lacked reasonable suspicion that criminal activity was afoot when he pulled in behind the Swartzes’ car. John’s flipping him the bird just wasn’t enough to justify the stop. In particular, the court scoffed (in legally appropriate language, of course) at Insogna’s claim that he either thought that John was “trying to get my attention” or, alternately, 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.

Likewise, the court concluded that John’s conduct didn’t qualify as “disorderly conduct,” even “under New York’s expansive definition,” thanks to the gesture’s status as “pure speech.” In other words, the First Amendment (although the court never cited it directly) protects your right to flip off the cops. To round out the day, the court found that the Swartz’s malicious prosecution claim shouldn’t have been dismissed, either.

Believe it or not, this case isn’t even unique. As the ACLU lawyer involved in that case puts it:

’The constitution does protect us when we want to express ourselves,’ Mejia said. ‘Even rudely.’

Fuck yeah.

* I can’t find a direct link for the opinion that works reliably. Go here and search for “Swartz” and it’ll pop up.