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Tempting the Legal Finger of Fate: No Winners Here in New York re: Disorderly Conduct

Last week, after a long day in downtown Grand Rapids, I aimed my car toward US 131 south, hoping to cover a 13 mile drive home in the usual 21 minutes, give or take 60 seconds.

Five o'clock traffic -- plus additional congestion related to The West Michigan "ArtPrize" competition -- made a quick trip impossible.  The situation was made worse when a police officer stopped a driver for some sort of vehicular violation.  The stop caused additional squeezing into already jammed traffic.

The only fun part of the trip home occurred when an impatient motorist opened his window and waived a left hand that featured a fully extended middle finger as he passed the car that had been stopped by the officer.  I'm not sure who he was aiming for, but he got me to thinking about John Swartz.

Back in 2006, John Swartz and his wife Judy were driving through the Village of St. Johnsville, in New York, on the way to visit Judy's son.  While sitting in the passenger's seat, John noticed a police car, whose occupant, Officer Richard Insognia, was evidently running a radar gun of the type commonly used before speeding tickets are written.

At that point, perhaps Swartz suddenly thought 'Hey..., why not give that officer the finger?'

Swartz then gave the officer the finger, and he gave it so well as to soon see Officer Insognia pull into the driveway with lights flashing once John and his wife had reached their destination.

Backup officers soon arrived.  Words were exchanged. They included argument and counter-argument, plus statements that Swartz muttered in a way that made them difficult to hear, thus intensifying the parties' discomfort with each other.

When the meeting was over, Insognia arrested Swartz for disorderly conduct.  The officer later indicated that he had followed and stopped Swartz because he thought that criminal activity was in process, although the only activity that he had observed before giving chase was Swartz' disrespectful digit.

Charges and counter charges, complaints and answers, lawyers and legal fees, and motions and dismissals ensued following the arrest.  After that came a trip to the court of appeals.  And not until April of 2013 was the matter resolved, following a three day trial and two hours of jury deliberations.

Seven years of litigation over a flippin' middle finger?  Here is hoping that the time flew by....

The controversy consumed 84 months in part because, after Insognia charged Swartz with disorderly conduct, Swartz had to go to court to defend himself.  However, that proceeding was repeatedly delayed such that Swartz had to visit the court house again and again before the charges were dismissed on the ground that Swartz had not received a speedy trial.

But Swartz wasn't finished. He sued Insognia -- and an officer who had been called to the scene as a backup -- for false arrest, wrongful seizure, and related violations of his civil rights arising from all that he had been put through.

Initially, a federal trial court dismissed Swartz' claim on the thought that the stop was reasonable, such that the officer had a "qualified immunity" to do act as he did because, "an objectively reasonable officer could have believed that there was probable cause for a disorderly conduct arrest."  The trial court may have also adopted the officer's claim that he thought that Swartz' gesture was either an attempt to get attention over something that was wrong in the car or a sign that Swartz was about to harm another occupant of the car.

Undaunted, Swartz appealed the dismissal of his claims to the U.S. Court of Appeals for the Second Circuit.  That court ruled that the trial court's Order dismissing Swartz' claims would be vacated, so that the case was returned to the trial court for an eventual trial.

As the Second Circuit's opinion stated, "Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  And perhaps that interpretation is what prompted Insognia to act, as he claims.  But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."

The Court added that, "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."

The Second Circuit's ruling was issued in January of 2013, and perhaps Plaintiff Swartz sensed that he had won a victory for the little guy.  After all, radar guns can be annoying, and sometimes one has got to speak one's mind -- to literally "let it fly" as it were.

However, all that Swartz had "won" was the right to proceed to trial before a jury of his peers.

So what did a jury of Swartz' peers think?  According to media reports, the jury heard the dispute for three days, deliberated for two hours, and then found that Insognia and his fellow officer had committed no legal wrong.  The jury concluded that the officer had reasonable suspicion to stop Swartz' car and probable cause to arrest Swartz after the stop.

The legal Opinions issued in the Swartz/Insognia dispute contain numerous well-reasoned statements of law related to civil rights, seizures of persons and property, disorderly conduct, and when an officer of the law is justified in demanding a motorist's license and registration.  The appellate opinion even includes a footnote on the origin of "the finger," which the court says may have first appeared in the United States, "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."

Still, the case may not have been worth its nearly seven year journey through the courts or the 84 months that it drained from the lives of the legal combatants.  Who would argue that the driveway dispute or the legal system delivered a winner?

All of which might be one more reason to keep both hands firmly on the wheel, the next time you're stuck in traffic.

© 2019 Varnum LLP

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About this Author

William Rohn, Varnum, commercial litigation attorney
Partner

Bill has served firm clients for over three decades in litigation matters that have been resolved through arbitrations, mediations, and bench and jury trials. He also oversees Varnum’s construction litigation practice area. Bill is one of two Varnum partners who serve as a Practice Management Leader, through which he assists and guides Varnum lawyers in the conduct of their practice efforts.

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