A federal appeals court ruled months ago that the “middle finger” gesture doesn’t give police sufficient cause to charge somebody with a crime.
But a jury this week decided that St. Johnsville Police Officer Richard Insogna did not abuse his power when he ticketed John Swartz for disorderly conduct following a traffic stop.
Swartz, a Vietnam veteran and retired pilot, filed a lawsuit against Insogna and Montgomery County Sheriff’s Deputy Kevin Collins claiming malicious prosecution and seeking monetary damages.
The case was initially settled when U.S. District Court Judge David N. Hurd rejected Swartz’s claims.
But an appeal led the U.S. Court of Appeals for the 2nd Circuit to reject police officers’ contention that the “middle finger” gesture signaled some form of domestic violence was taking place.
The appeals court decision put the case back on the docket and an eight-member jury heard testimony during a three-day trial that began Monday.
The jury on Wednesday spent two hours deliberating after hearing from the police officers and Swartz — and they ultimately decided Swartz isn’t due any compensation for the incident.
Attorney Thomas Murphy, who represented the police, said Thursday the jury heard testimony about more than just a middle finger.
Murphy said Swartz was leaning out of the vehicle and waving the middle finger high above the roof of the car. He said after a brief discussion with Swartz and his wife, who was driving, Insogna decided to let them go.
But Swartz got out of the car and sought to speak with Insogna “man to man,” and police alleged he uttered a swear word in hearing distance of people in houses near the traffic stop.
Yelling an obscenity in public, Murphy said, is sufficient grounds to issue a ticket.
Hurd, prior to the deliberation, told jurors they could not find Insogna had reasonable suspicion for the traffic stop based on Swartz’ middle finger.
“The jury knew they had to find more,” Murphy said.
Swartz could not be reached for comment. His attorney, E. Robert Keach of Amsterdam, said he and his clients have strong feelings about the verdict that were “best left unsaid.”
Keach said Murphy did an “excellent job” in the trial, and despite the verdict, he said he wouldn’t have pursued the case any differently.
The case itself affirmed the public’s constitutional right, Keach said, to criticize police officers using the “universal sign of contempt.”