CA2: “Giving the finger” to a police officer is not disorderly conduct as a matter of law, and it violated the Fourth Amendment to arrest the plaintiff for it

“Giving the finger” to a police officer is not disorderly conduct as a matter of law, and it violated the Fourth Amendment to arrest the plaintiff for it. There was no reasonable suspicion for plaintiff’s arrest. Swart v. Insogna, 2013 U.S. App. LEXIS 186 (2d Cir. January 3, 2013):

An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,¹ 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.

1 See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). 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. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1415 (2008).

. . .

Even with the wide range of conduct subsumed under New York’s expansive definition of disorderly conduct, John’s conduct, on the Plaintiffs’ version of the facts, could not create a reasonable suspicion that a disorderly conduct violation had been or was being committed. Neither Collins, whom John says arrested him, nor Insogna, whose report says he made the arrest, had observed any disruptive conduct, any threatening conduct, any shouting, or anything that risked a public disturbance. Whether or not giving the finger is properly considered an obscene gesture, neither Collins, who had not observed the gesture, nor Insogna, who had observed it and was likely piqued by having seen it, makes any claim on appeal that the gesture was disorderly conduct. Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred. “The disorderly conduct statute at issue here does not circumscribe pure speech directed at an individual. Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder ….” People v. Tichenor, 89 N.Y.2d 769, 775 (1997) (citations omitted). On the Plaintiffs’ version, probable cause did not exist for an arrest for disorderly conduct. And because an objectively reasonable police officer would not have believed that probable cause existed, neither Defendant was entitled to the defense of qualified immunity on a motion for summary judgment. Of course, the defense of qualified immunity and the lawfulness of the arrest itself will appropriately be in issue at trial, where both versions of the episode will be presented.

Note: Read the opinion for the officer’s rationalization for the arrest to the District Court, which the court found utterly fantastic and incredible: “giving the finger” was a distress call for a stop. Just admit it: you stopped him for contempt of cop.