Flippin the Bird

It seems even judges on the Second Circuit Court of Appeals need to have a little fun.  Remember they are one step below the Supreme Court.

Quick synopsis of a recent case:

1) John and Judy Swartz were driving in St. Johnsville, NY,
2) Officer Insogna was using radar to detect speeders,
3) John extended his middle finger to express his displeasure at the officer's methods,
4) Officer Insogna started a traffic stop,
5) John did not want to give Officer Insogna any paperwork, but Judy provided her license,
6) Officer Insogna returned the documents to Judy and told John and Judy they could leave as he had no reason to ticket them,
7) John asked to speak to Officer Insogna "man to man",
8) Another officer heard John say something under his breath and then arrested John, giving him an appearance ticket for disorderly conduct.

John filed a suit alleging the officers violated his civil rights by arresting him for exercising his First Amendment right to free speech.  The District Court dismissed the suit and the Second Circuit reinstated it in this opinion.  The best part about the opinion is the centuries-long history of the middle finger provided:

     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).

The officer said he stopped John's car for three reasons:  1) The gesture “appeared to me he was trying to get my attention for some reason," 2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and 3) “I was concerned for the female driver, if there was a domestic dispute.”

The Court shot this down, stating that the universal and ancient recognition of the middle finger as an insult denies any other interpretation by the officer.  Since the officer did not have any reason to approach the vehicle, the stop was unlawful and they allowed the civil rights suit to proceed.

And who says lawyers are no fun?

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