The Finger, redux
Happy new year, y’all. Apologies for the radio silence, but I’ve been busy mourning Jack Klugman (more on that soon). In any event, what spurred me to finally put finger to keyboard is today’s breaking legal news.
The United States Court of Appeals for the Second Circuit ruled yesterday that John Swartz and Judy Mayton-Swartz could pursue their civil rights claims against a couple of upstate New York cops. What was the basis for the claims? The Swartzes say they were pulled over, and then arrested, because John gave these cops the finger. That’s right. They were pulled over and arrested for flipping off a cop.
As we have recounted, many of the greats have proudly given the finger. Hell, I flip people off regularly. My innate cowardice generally stops me from flipping off people carrying loaded weapons, including cops, but hell, I theoretically might someday be drunk enough to flip off a cop. Anyway, in my view it’s a fundamental civil right in this country to give the finger to The Man and these Swartz people should be able to sue to vindicate that right. Circuit Judge Jon Newman totally agrees with me, and he had a nice little discussion about the reasonableness of the cop’s explanation that he thought John Swartz’s giving the finger was a sign of distress:
The only act Insogna had observed prior to the stop that prompted him to initiate the stop was John’s giving-the-finger gesture. Insogna acknowledged in his deposition that he had not observed any indication of a motor vehicle violation. He stated, somewhat inconsistently, that he thought John “was trying to get my attention for some reason” and that he “was concerned for the female driver.” 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. 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.
Amen, brother. Now go fuck yourself.