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Flipping Off Police Doesn't Warrant Traffic Stop: 2nd Circuit

By Andrew Lu on January 04, 2013 | Last updated on March 21, 2019

The 2nd U.S. Circuit Court of Appeals has weighed in on the lofty issue of whether flipping off the police is enough to effectuate a traffic stop. It isn't.

John Swartz and his wife were driving in upstate New York in 2006, when Swartz was alerted to a police officer in the area by his radar detector.

While some appreciate the job that police officers perform, Swartz was obviously not one of these individuals. Instead, the man waved his middle finger at the parked cop as he and his wife drove by.

Officer Richard Insogna was on the receiving end of the "bird" and apparently did not take kindly to the gesture. The officer followed the couple to their destination and conducted a traffic stop. The officer took a look at Mrs. Swartz's license and registration (she was driving) and then let the couple go.

For whatever reason, John Swartz then asked to speak "man to man" with Insogna and when three officers intervened, Swartz walked away. On his way back to the car, Swartz said he felt "like an ass." Perhaps mishearing things, the officers then arrested Swartz for disorderly conduct.

But what business did the police have in stopping the Swartzes in the first place?

A traffic stop is considered a seizure for the purpose of the Fourth Amendment, and requires reasonable suspicion of criminal activity. But is flipping the bird enough to constitute criminal activity?

The officers made the lame argument that the gesture may have indicated that Swartz needed help or was about to beat his wife. Not surprisingly, the court did not fall for that and just recognized the middle finger for what it is -- an insult.

And regardless of the legality of the traffic stop, the court also found the disorderly conduct arrest equally ridiculous. While New York's disorderly conduct statute is very broad, and covers the use of obscene language in public, it still has to allow one to express his own opinion, especially when that opinion is self-deprecatory.

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