NY court: Flipping finger at cops not worth arrest

Published on NewsOK Modified: January 3, 2013 at 8:23 pm •  Published: January 3, 2013
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NEW YORK (AP) — A Vietnam veteran and retired airline pilot arrested after giving the finger to a police officer can sue police for malicious prosecution, a federal appeals court ruled Thursday as it reversed a lower-court judge who found the actions of officers reasonable.

The 2nd U.S. Circuit Court of Appeals noted that the act of giving the finger was "a gesture of insult known for centuries" and restored the claim brought by John Swartz and his wife after their May 2006 encounter with police as they drove through the upstate New York village of St. Johnsville, 50 miles west of Albany.

A lower-court judge in Albany had tossed out the couple's claim prior to trial after police maintained they stopped Swartz's car, which his wife was driving, because they feared the finger gesture was a sign of a domestic dispute.

The appeals court said such a conclusion was unreasonable given "the nearly universal recognition that this gesture is an insult." It pointed out in a footnote that Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle and that the first recorded use of the gesture in the United States may have 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.

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

But the 2nd Circuit stopped short of saying Swartz's lawsuit, which seeks unspecified damages, was a sure winner. It noted that a defense of qualified immunity and the lawfulness of the arrest will "appropriately be in issue at trial."

A lawyer for the police officers who arrested Swartz did not immediately return a phone message seeking comment Thursday.

Swartz's lawyer, Elmer Robert Keach III, praised the court's decision, calling it an "important victory for civil rights."

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