A federal appeals court panel has validated the lawsuit of a New York State man who sued the local police for arresting him after he flashed his middle finger.

In May 2006, John Swartz, a 62-year-old Vietnam veteran, flipped the bird at a parked police car using radar to catch speeders in the village of St. Johnsville in upstate New York. The car in which Swartz was a passenger was pulled over, and after words were exchanged with the officer, he found himself arrested for disorderly conduct.

He then filed a civil rights lawsuit, which a lower court judge dismissed. But the Second Circuit Court of Appeals in Manhattan reversed that decision, ruling that Swartz’s case can go forward.

Richard Insogna, the arresting officer, claimed he pursued Swartz because he interpreted the middle finger as a possible call for help, and that he wanted to make sure everything was okay. The appellate justices did not buy Insogna’s argument.

On behalf of the panel, Judge Jon Newman wrote that “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.”

In his 83-page study, “Digitus Impudicus: The Middle Finger and the Law,” American University Professor Ira Robbins argues that “although most convictions are ultimately overturned on appeal, the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense.”

The case now returns back to its original court for consideration.

-Noel Brinkerhoff, David Wallechinsky

To Learn More:

Middle Finger Flashed in ’06 Lives On in Suit (by Benjamin Weiser, New York Times)

Man Arrested for Flipping Off Cop Wins Day in Court (by David Kravets, Wired)

Digitus Impudicus: The Middle Finger and the Law (by Ira P. Robbins, UC Davis Law Review) (pdf)

Swartz v. Insogna (Second Circuit Court of Appeals) (pdf)