Activists of Ukrainian womens' movement FEMEN gesture from a police van on February 14, 2011 after being arrested during a protest, called "Italiy is not a brothel," in front of the Italian Embassy in Kiev. The Ukrainian femenists came to show their support for the hundreds of thousand of Italian women who protested on February 13 against the distorted image of Italian women generated by Italian Prime Minister Silvio Berlusconi's numerous sex scandals. AFP PHOTO/ SERGEI SUPINSKY (Photo credit should read SERGEI SUPINSKY/AFP/Getty Images)
WASHINGTON -- A police officer can't pull you over and arrest you just because you gave him the finger, a federal appeals court declared Thursday.
In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the "ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity."
John Swartz and his wife Judy Mayton-Swartz had sued two police officers who arrested Swartz in May 2006 after he flipped off an officer who was using a radar device at an intersection in St. Johnsville, N.Y. Swartz was later charged with a violation of New York's disorderly conduct statute, but the charges were dismissed on speedy trial grounds.
A federal judge in the Northern District of New York granted summary judgement to the officers in July 2011, but the Court of Appeals on Thursday erased that decision and ordered the lower court to take up the case again.
Richard Insogna, the officer who stopped Swartz and his wife when they arrived at their destination, claimed he pulled the couple over because he believed Swartz was "trying to get my attention for some reason." The appeals court didn't buy that explanation, ruling that the "nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."