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March 2013 - Saluting the Police

by Richard W. Millar, Jr.

I don’t remember when I first saw someone give someone else “the finger.” I am pretty sure it was in school, the incubator for learning things good and bad. I vaguely remember being puzzled. While it seemed so insignificant, I instinctively knew that it was some kind of really bad insult. I might have asked my parents, but I doubt it. My mother would have said something to the effect that “one” does not do that sort of thing, nor does “one” even talk about something so vulgar. My mother never used “I” or “we” in her parlance of disdain; it was always “one,” such as “one doesn’t talk with one’s mouth full.” I never knew who “one” was but that singular word referred to everyone other than me—the transgressor in question. My father, on the other hand, would have said, “Go ask your mother.” I probably didn’t ask any of my friends either, for to do so would have revealed my abysmal ignorance of something everyone else seemed to know.
“Giving the finger,” it seems, has a long, if inglorious, history. According to the United States Court of Appeals in a case involving a beer manufacturer with the wonderful name of Bad Frog Brewery whose label depicted a finger waving frog, the gesture “is said to have been used by Diogenes to insult Demosthenes.”(1) (And here I thought Diogenes devoted his life solely to the hunt for an honest man. Shows how much I know, but I, like Diogenes, digress.) According to a Mr. Robbins, who actually wrote a law review article on the subject, the first recorded use of the gesture in the United States was in an 1886 photograph of the Boston Beaneaters pitcher giving the finger to the New York Giants.(2) I am not sure how one (as my mother would say) goes about researching the history of the middle finger in America, nor am I clear on why that would warrant a law review article, but I can say that if I was on some institution’s faculty and had to publish or perish, I certainly would have chosen that over, say, the rule against perpetuities. But, again, I digress.
In any event, through the sort of social osmosis by which kids learn dirty things, somewhere along the line I learned the significance of the gesture. At least I thought I did. I never thought it was a signal for distress. At least, that is, until now.
As always, a case in point.
John Swartz, a Vietnam veteran, was a passenger in a car driven by his wife Judy. Whilst on a drive through the Village of St. Johnsville (presumably not named after him), with the help of a radar detector he spotted a local police officer using a radar gun. He “expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof.”(3) Mr. and Mrs. Swartz, who were not speeding or, for that matter, committing any traffic violation, proceeded to their destination. They got out of their car and then a police car flashing its lights pulled in behind them. After some discussion, they were both ordered to return to their car while the officer retrieved Mrs. Swartz’s license and registration and retreated to his police car to check their documents and call for backup. Three more of St. Johnsville’s finest then arrived. In the ensuing conversation, John said that he felt like “an ass,” to which one of the officers said, “That does it, you’re under arrest.” He was handcuffed, booked, and charged with disorderly conduct.
“The charge remained pending for several years while John made three court appearances” (emphasis I confess to have added). The charge “was ultimately dismissed on speedy trial grounds.” Or, more accurately, not so speedy. The mills of justice in St. Johnsville, it seems, do not speedily grind.
At some point, the Swartzes filed a civil rights suit in federal court which the district court eventually dismissed on a grant of summary judgment in favor of the officers. Not ones (again a nod to my mother) to let things go, the Swartzes appealed and ended up in the Second Circuit.
In a de novo review, the appellate court observed that the first officer (the recipient of the finger salute) gave conflicting testimony as to why he pulled in behind Mrs. Swartz inasmuch as there was no traffic violation. The best he could come up with was that he thought that Mr. Swartz was trying to get his attention and that Mrs. Swartz was in distress.
With no little irony, the court said, “Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress . . . but that the universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.” Even if an officer interpreted it as “an ill-advised signal for help” it was preferable to ignore it rather than judicially approve the stopping of every vehicle “from which a passenger makes that gesture.” The court held that “such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred.”
As always, there is something to learn from these cases. If you are ever stopped for giving an officer “the Ancient Insult,” just tell him he was mistaken. You were just giving him the old St. Johnsville signal for distress.

Editor’s note: if you are interested in learning more about the legality of flipping the bird, see below.
(1) See Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87, 91 n.1 (2d Cir. 1998).
(2) Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1414 (2008).
(3) Swartz v. Insogna, No. 11-2846-CV, 2013 WL 28364 (2d Cir. Jan. 3, 2013).

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.
    
 

 
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