The U.S. Court of Appeals for the Second Circuit recently ruled on a police officer’s stop of an individual who had gestured to a police officer using his middle finger.
The incident happened in May of 2006 when a Husband and Wife saw a police officer in the town of St. Johnsville, New York. The officer was using a radar device at an intersection to determine the speed of vehicles. While the Husband was not speeding, he gave the middle finger salute to the police officer who then followed the vehicle in which the parties were traveling. When the Husband and Wife arrived at their destination, the police officer charged them with disorderly conduct.
The charge was later dismissed based on a claim of a failure to proceed to trial under the time reserved for a speedy trial.
The Husband and Wife thereafter sued the police officer involved. A federal judge in the Northern District of New York granted summary judgment to the officer in July of 2011, but on appeal the Court of Appeals overturned that decision and ordered the lower court to take up the case again. The police officer who stopped the Husband and Wife indicated that he believed that the couple was trying to get his attention for some reason. The appeals court dismissed the officer’s explanation that gesturing with the middle finger to the officer was a device to get his attention. The appeals court said that the finger gesture is nearly universally recognized as an insult that deprives any interpretation that the gesture is given to get the attention of the officers of reasonableness.
Even though the finger, considered obscene by some, may be protected and does not give any reasonable suspicion of a traffic violation or criminal activity, and is not a proper basis for a police stop, our advice is to refrain from drawing police attention to yourself by utilizing this gesture. Not every right should be exercised.