In a lawsuit against two police officers, the court held the insulting gesture did not constitute “reasonable suspicion that criminal activity or a traffic violation was afoot.”
The lawsuit was sparked by an incident that occurred in 2006 while John Swartz and his wife Judy Mayton-Swartz were driving to their son’s house. The couple saw a police officer using a radar gun to catch speeding motorists at an intersection. John, who was a passenger in the car, stuck his arm outside the side window and “flipped the bird” over the car’s roof. The police officer then followed the couple to their son’s home and stopped them. John was arrested for disorderly conduct after other officers arrived as backup.
The officer who initially followed and stopped the couple said he did so because John appeared to be trying to get his attention by waving his middle finger. However, the court didn’t buy that argument.
“[T]he nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness,” Circuit Judge Jon O. Newman wrote in the ruling (PDF). “This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. 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.”