A police officer who saw an automobile passenger flash a middle finger at him did not have reasonable suspicion for a traffic stop, a federal appeals court has ruled in reinstating a civil rights suit against two upstate officers.

“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 (See Profile) of the U.S. Court of Appeals for the Second Circuit wrote in Swartz v. Insogna,11-2846-cv. “And perhaps that interpretation is what prompted [the officer] 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.”

Noting the raised middle finger was “a gesture of insult known for centuries,” Newman pointed out in a footnote that its use stretches back to ancient Greece. He said that possibly its first recorded use in America came in an 1886 photograph of a player from the Boston Beaneaters baseball team raising his finger to the New York Giants.

Newman was joined by Judges Gerard Lynch (See Profile) and Raymond Lohier Jr. (See Profile) yesterday in reversing a decision by Northern District Judge David Hurd (See Profile), who threw out the suit. The panel heard arguments on Oct. 2.

In May 2006, John Swartz and his wife, Judy Mayton-Swartz, were driving through the Village of St. Johnsville to visit Judy’s son.

At an intersection, John, sitting in the passenger’s seat, spotted Village of St. Johnsville Police Officer Richard Insogna in a police car monitoring drivers’ speed. The couple’s car, which was equipped with a radar detector, was traveling at the speed limit, and not committing any traffic infractions.

“Express[ing] his displeasure at what the officer was doing,” as Newman put it, Swartz raised his arm over the car’s roof and gave Insogna the middle finger.

In his deposition, Swartz said that once he and his wife arrived at their destination, they saw Insogna’s car, with lights flashing, stopping behind them. Insogna allegedly told the couple to get back in the car. Although Swartz initially refused, he and his wife finally complied.

When Insogna asked for Mayton-Swartz’s license and registration, her husband told her not to cooperate, allegedly prompting Insogna to tell him “shut your mouth, your ass is in enough trouble.”

Three officers, including Kevin Collins of the Montgomery County Sheriff’s Office, soon appeared as back-up.

Insogna returned Mayton-Swartz’s documents and told them they could go. Swartz got out of the car and asked to speak “man to man” with Insogna.

The couple’s attorney, Elmer Robert Keach III of Amsterdam, said Swartz did so because he regretted his middle finger gesture.

When the other officers blocked Swartz’s path, Swartz said he turned around and muttered, “I feel like an ass.” One of the intervening officers asked him to repeat the comment, which he did. Swartz said Collins then stated, “That does it, you’re under arrest,” without specifying the charge.

Only after being handcuffed and brought to the station did Swartz say he learned he was charged with disorderly conduct.

The charge remained pending in the St. Johnsville Village Court for three years, requiring Swartz to make three court appearances. It was eventually dismissed on speedy trial grounds.

Insogna gave a different view of the incident during his deposition.

He said he followed the car for several reasons, thinking Swartz was “trying to get my attention for some reason,” and that there possibly could be “a problem in the car.” Insogna said he was also “concerned for the female driver, if there was a domestic dispute.”

The officer said he tried pulling over the car, but it did not stop until he reached the house of Mayton-Swartz’s son.

Swartz allegedly got out of the car and hurled vulgar names at Insogna. Insogna said he called for back-up because he was concerned for his safety.

After the couple was told they could go, Insogna said Swartz asked to speak with him “man to man.” Insogna said he advised against it and Swartz walked away shouting that he “felt like an asshole.” Insogna then said he arrested Swartz.

The couple filed their civil rights suit against Insogna and Collins in May 2009 seeking unspecified damages for an illegal traffic stop, false arrest and malicious prosecution.

But Hurd granted summary judgment for the defendants in July 2011. He accepted Insogna’s explanation that he suspected a domestic incident when deciding to initiate the traffic stop, saying it was legal because 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.”

Hurd also held that the two officers enjoyed qualified immunity on the false arrest claim because “an objectively reasonable officer could have believed that there was probable cause for a disorderly conduct arrest.”

Criminal Activity?

Newman observed that the legality of the traffic stop turned on whether Insogna had reasonable suspicion that “criminal activity or a traffic violation was afoot.”

Assuming the truth of Swartz’s version of the facts, Newman wrote, “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.”

Turning to the false arrest claim, Newman noted that neither officer argued the middle finger gesture constituted disorderly conduct.

“Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred,” the judge said.

Newman noted defenses of qualified immunity and lawfulness of the arrest could “appropriately” be raised at trial “where both versions of the episode will be presented.”

Keach, the couple’s lawyer, said in an interview that the ruling was “obviously a significant victory” for Swartz. “He and I are happy about it.”

Insogna and Collins were represented by Catherine Ann Barber, who argued the appeal, and Thomas Murphy of Murphy, Burns, Barber & Murphy in Albany.

“At the summary judgment stage, the court is constrained to treat plaintiffs’ version of the facts as true. Fortunately for the defendants, the plaintiffs’ version of the facts is not true,” said Murphy, who represented the defendants in district court. “We’re confident if a jury hears both sides of the story, they will conclude that the officers acted properly and will ultimately find in favor of the defendants in this case.”

@|Andrew Keshner can be contacted at akeshner@alm.com.