The finger. The bird. Flipping someone off. Whatever you call it, it’s a rude gesture meant to express disdain and provoke a reaction.
So, if you flip off a cop, can you get arrested?
In January 2013, a federal court said no. Hurrah for freedom of expression!
But not so fast. Just because you can legally give a police officer the finger doesn’t mean you should. Here are a couple reasons not to “express yourself” this way in front of an officer of the law.
Yes, you can legally give a police officer the middle finger…
First, let’s review the case that led to the federal appeals court’s decision.
In May 2006, John Swartz was driving in upstate New York with his wife. Swartz saw a police officer using a radar detector and gave the officer the finger from his car in protest. The officer, Richard Insogna, followed Swartz to his destination and pulled him over in a traffic stop. Insogna called for backup, and at one point Swartz said, “I feel like an ass,” at which point he was arrested for disorderly conduct. Swartz and his wife filed suit, and the case made it to the U.S. Court of Appeals for the 2nd Circuit, which found that the gesture is not a legitimate reason for arrest.
The officer said he believed Swartz was signaling to him with the gesture, and his concern for the passenger, Swartz’s wife, caused him to initiate the traffic stop. But the court didn’t buy this explanation, saying, “The nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness . . . [It] is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” (Emphasis original.)
. . . but don’t do it; it’s not a very dignified way of expressing yourself
The First Amendment protects your right to freedom of speech, and the 2013 federal court decision set a precedent, protecting the freedom to flip off a police officer. But isn’t there a better way to express your discontent?
Washington State attorney Larry Jerome Couture sums up the common sense on this issue, saying, “It is normally not criminal to make a rude gesture at a police officer as it is a form of speech. However, it generally shows your lack of character, good sense, and dignity.”
You might get arrested anyway
There are no laws explicitly outlawing giving the middle finger to a police officer or anyone else. But that didn’t stop the officer in Swartz’s case from finding, or perhaps inventing, a reason to confront him. Swartz called attention to himself by making the gesture, and the officer noticed.
If you make a rude gesture or remark to an officer of the law, don’t be surprised if the officer finds a reason, any reason, to confront you. Even if you’re ultimately right, a wrongful arrest and long court process is not a fun prospect. (Though if that does happen, definitely find a lawyer as soon as possible.)
A 2008 law review titled The Middle Finger and the Law cites several instances of arrests made after someone used such a gesture. “You may be unpleasantly surprised how creative the arresting authorities will be when you resort to this irrational behavior that may possibly cost you time, money, and adverse criminal history in the long run,” says Chicago attorney Alexander M. Ivakhnenko. “I do not recommend it.”
What do you think? Would you flip off a cop or would you be afraid of being arrested anyway?
Related articles on AvvoStories: