In a ruling released just after the new year, the US 2nd District Court of Appeals ruled that a police officer who observed a man flipping him off did not have reasonable basis to perform a traffic stop which eventually led to the arrest of that man on disorderly conduct charges.
The ruling (available here) recounts the saga of St. Johnsville, NY resident John Swartz, who upon seeing a police officer parked and operating a radar gun, expressed his displeasure by directing at the officer what the court deemed “a gesture of insult known for centuries”: the raised middle finger. The same officer subsequently performed a traffic stop on Swartz claiming that he believe Swartz’s gesture was a sort of distress call, an attempt to get the officer’s attention. Citing the ”nearly universal recognition that this gesture is an insult” the court found the traffic stop unreasonable, and likewise Swartz’s subsequent arrest for disorderly conduct, for lack of probable cause. “Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred,” said the court, calling the gesture instead “pure speech directed at an individual.”