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Court: Flipping Off Cops Is Constitutional

January 04, 2013  | 

A civilian flipping off a police officer can't be cause for a vehicle stop or arrest, a federal appellate court has ruled.

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."

The ruling conforms to existing legal precedent, said Devallis Rutledge, POLICE's legal expert.

"You can contact the person," Rutledge said. "You cannot detain the person. It doesn't provide grounds for arrest. It's just not criminal."

In the most recent case, John Swartz and his wife Judy Mayton-Swartz had sued two St. Johnsville (N.Y.) Police officers who arrested Swartz in May 2006 after he flipped off an officer who was using a radar device at an intersection. Swartz was later charged with a violation of New York's disorderly conduct statute, but the charges were dismissed, reports the Huffington Post.

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."

Prior courts have ruled that contempt of cop is protected First Amendment speech. The U.S. Supreme Court in City of Houston v. Hill (1987) ruled that the First Amendment "protects a significant amount of verbal criticism and challenge directed at police officers." 

The 9th Circuit court confirmed this ruling in 1990's Duran v. the City of Douglas, Arizona.

By Paul Clinton

Comments (18)

Displaying 1 - 18 of 18

Tom Ret @ 1/5/2013 4:31 PM

I bet flipping off the judge will not be considered freedom of speech.

Brian @ 1/7/2013 4:58 PM

Actually, after the ruling in the original case the attorney flipped off the judge. It was a great picture.

Jack Betz @ 1/7/2013 5:01 PM

Guys people some people do not like us and will say things we do not like to hear. Take some comfort that we have been called worse by better. And their is nothing I have heard that says you can't follow some people for a few miles.

[email protected] retired @ 1/7/2013 7:07 PM

I'll bet if you cursed your chief and flipped him off it wouldn't be viewed as protected free speech.

Dennis CHP (retried) @ 1/7/2013 8:25 PM

The traffic officer should have been a bit more forthright with the court, which can irrate Judges and everyone else in the courtroom. It was a very clear why the stop was made and it reflects badly on the officer when he made up the story. And of course, if the officer is that sensitive to people who flip him off, he needs to fiind a different occupation. Challenging an officer or touching an officer is completely different, and rightly so.

DaveUS5566D1 @ 1/8/2013 12:28 AM

Wave and smile at them - really pisses them off (or just ignore it) - becasue they are expecting you to react the other way...and they won!

BW @ 1/8/2013 3:05 AM

If you don't have thick skin, the job ain't for you.

Frank @ 1/8/2013 4:56 AM

Respect is long gone for the common person let alone a LEO! But I would remember that tag.

TERRY F. ZECH @ 1/8/2013 5:24 AM

I have seen judges jail suspects who told them to Foff along with the finger gesture. Especially 36th district court Detroit.

Danno @ 1/8/2013 5:35 AM

Its unfortunate that we now live in a society, where illegal drugs are becoming legal, praying in our schools is illegal, and disrespecting authority is a constitutional right. Where killing babies (abortion) is a constitutional right, and killing murders (capital punishment) is cruel and unusual. Morality is frowned upon and it saddens me to think of what my children will have to deal with in the future.

Marshal @ 1/8/2013 1:13 PM

Well some states define the proper hand signals while driving so if someone sticks their hand out the window and gives a signal not described that is illegal and if they still argue that point then if it is straight out indicating a left turn and they don't turn or if the elbow is bent indicating a right turn and they don't turn then that would still be improper signaling. But if it is kept in the car not much can be done about that but there always could be another reason for a stop that is legal.

Capt David-Ret LA County @ 1/8/2013 3:34 PM

Anyone who ever flipped me off got arrested for drunk and disorderly conduct. I figured they must have been so to give me the finger..

Tornado Jim @ 2/19/2014 10:08 AM

One very hot July afternoon I was pulled over by a Pennsylvania State Hoopie. As a truck driver, I was minding my own business driving down a back country road when I saw the cop approaching in my direction. I waved 'hello' to him as he passed and minutes later he pulled me over, searched the truck, asked for documents not normally carried on board. After a great deal of harassment he finally, angrily, asked me who I thought I was flipping him off. I told him I had waved at him and he said it looked to him like I was throwing him the finger. An hour later I was free to go. Really? If you're a cop and reading this and would be willing to go ballistic because someone 'flipped' you off please do the citizenry a favor. Take your service revolver, walk into your bathroom, lock the door, crawl into the bathtub, put the gun to your head and pull the trigger. There, everyone's problems are solved.

John Doe @ 4/18/2014 12:16 AM

Capt David-Ret LA County
You sound like a fucking scumbag with a small man inferiority complex. Hurr durr I have a gun and a shiny badge. Hur dur. You have to do what I say! Fuck off you stupid, power-abusing son of a bitch.

Steven @ 4/18/2014 6:54 AM

Capt. Dave. Sounds like a bitch to me. Listen here bitch you aint shit with out your badge and service pistol so keep youre fuckin trap shut. Sounds to me like youre the size of your penis is showing.

mike @ 4/18/2014 9:23 AM

Spoken like a true crooked piece of shit from LA county you boys always have been some of the slimiest and most worthless scrum to scour the earth. Fuck you from the bottom of my heart, cock sucker.

Michael Dennis @ 12/9/2015 7:00 PM

Of course it is protected activity. There is no obligation to be polite to police or to anyone else.

Cameron James @ 12/1/2016 8:16 PM

I was arrested for flipping off a cop and charged with harrasment. I was walking and the cop blocked the sidewalk so i flipped him off and walked around. He is a lieutenant got out of his car pushed me threatoned me and when i attempted to recorde him and pushed me took my phone. Then attempted to make me sit by pushing me down. I never called him and cuss worda or was resisting in any way. He was asking for my ID i said "what crime did i commit? he never answered. I was taken to central and booked. They saw i Had a 100$ bill and said my bail was 100$ and i can pay with the 100$. I am a collegue student. That was my food money. Am I in the wron for flipping off the cop or is the cop in the wron for stopping me damanding ID then grabbing my phone when i try to record him. This is hawaii btw.

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