False Arrest Claim May Stick to Flipped Off Cop

     MANHATTAN (CN) - A car passenger who gave the finger to an upstate New York police officer can sue for false arrest and malicious prosecution, the 2nd Circuit ruled.
     The 14-page opinion describes "giving the finger" as "a gesture of insult known for centuries," tracing the practice to the ancient Greeks and Romans in a footnote.
     Diogenes used it to insult Demosthenes, the federal appeals court noted.
     "Even earlier, Strepsiades was portrayed by Aristophanes [in 'The Clouds'] as extending the middle finger to insult Aristotle," the footnote states. "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."
     John Swartz carried on this tradition while his wife, Judy, drove them through the village of St. Johnsville, en route to her son's home in May 2007.
     As Judy stopped at an intersection, the radar detector in the car went off, and Swartz spotted Officer Richard Insogna sitting in a police car trying to catch speeders.
     "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 court explained.
     Insogna claims that he tried to pull the couple over but they refused to stop. Swartz, meanwhile, swears that the police car reappeared with its lights flashing only after they had parked outside the house of Judy's son.
     When Insogna demanded to see the wife's license and registration, Swartz says he told his wife not to comply.
     Insogna then allegedly warned him, "Shut your mouth, your ass is in enough trouble," and then called three other officers for backup.
     Swartz said Insogna was about to let the couple leave until he tried to apologize by telling the officer: "I'd like to speak to you man to man."
     Swartz allegedly muttered, "I feel like an ass," softly, and then repeated himself more loudly when another officer asked him to speak up. Then he landed in handcuffs.
     The parties dispute whether Insogna or another officer, Kevin Collins, made the arrest.
     Swartz fought off his disorderly conduct charge for "several years" with the help of a lawyer, the court noted. He eventually won a dismissal on speedy trial grounds, and then sued for false arrest and malicious prosecution.
     Insogna defended himself in the civil suit by claiming he read Swartz's obscene gesture as an attempt "to get my attention for some reason," a sign "that maybe there could be a problem with the car" and an indication of a "domestic dispute" with his wife.
     The officers generally depict Swartz as hostile, erratic and profane throughout the encounter.
     A federal judge threw out the lawsuit after finding that Swartz's "odd and aggressive behavior directed at a police officer created a reasonable suspicion that Swartz was either engaged in or about to be engaged in criminal activity, such as violence against the driver of the vehicle."
     But Insogna's claims drew skepticism from a three-judge panel of the 2nd Circuit.
     "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," Judge Jon Newman wrote for the panel. "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."
     Attorneys for both parties were not immediately available to respond to requests for comment.
     The judges remanded the case back to federal court for a jury to sort out the claims.