Law and Disorder

A court gesture: Fingered for a crime

By A.J. Wagner

This footnote from the United States Second Circuit Court of Appeals in the case of Swartz v. Insogna sets the table for a case decided last week in New York:

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 questionable action at issue was a middle finger salute made by a car passenger to a police officer resulting in an arrest for disorderly conduct. According to the accused, who sued the police officers for malicious prosecution, he made the gesture of displeasure from the passenger window.

After this bold expression, the driver continued on to their destination, which was her son’s home. After pulling into the driveway of the home, a police car, with lights flashing, pulled up behind. The officer ordered the pair to get back into the car from which they had disembarked. The displeased passenger resisted, at first, but then complied with the order.

The officer asked for the driver’s license while the passenger told her not to give the officer anything. The officer responded, “Shut your mouth, your ass is in enough trouble,” as the driver handed over her documentation.

The officer went back to his car to run a check on the license when the passenger got out of the car and demanded, “I’d like to speak to you man to man.” Other officers had arrived and intervened by standing between the passenger and the officer who stopped the pair. The passenger turned to walk away saying to himself, “I feel like an ass.”

In reaction, one of the officers said, “That does it, you’re under arrest.” The accused was taken to the police station, charged with disorderly conduct and released. The charge pended for two years when it was finally dismissed for lack of speedy trial.

The police officer testified that he stopped the car because; “(1) John’s 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.’” When the passenger got out of the car he began speaking to the officers in vulgar terms. When the accused stated that he “felt like an ass” he was arrested for disorderly conduct.

The passenger eventually sued the police for false arrest and malicious prosecution. The police asked for the suit to be dismissed because there was no evidence upon which they could be held liable and because they were immune from suit if they were doing their duty.

The District Court dismissed the suit, accepting that the automobile stop was legal because the passenger’s “odd and aggressive behavior directed at a police officer created a reasonable suspicion that he was either engaged in or about to be engaged in criminal activity, such as violence against the driver of the vehicle.” The court also ruled that the police were entitled to 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.” Finally, the court ruled that the fact that John had to make three court appearances did not amount to a “post-arraignment seizure,” a necessary component of a malicious prosecution claim.

On appeal, the higher court said, “Are you kidding?” There was no reason to even conduct a stop on the car. It is not a crime to give the finger. Further, giving the finger is not a sign of distress, nor an indication that violence is being committed against someone.

The court then asked, “What disorderly conduct?” Giving the finger is not disorderly conduct. Nor is calling yourself an ass. Police cannot arrest someone when no crime exists.

As for the malicious prosecution case, the court determined that being arrested and then being required to appear at court three times can be the basis for such a suit.

I don’t recommend that anyone treat officers with disrespect of any kind. They don’t deserve such treatment. But, for an officer, the appropriate response to a middle finger is thick skin.


Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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