- people on the move
Tempting the legal finger of fate: no winners here
Last week, after a long day in downtown Grand Rapids, I aimed my car toward U.S. 131 south, hoping to cover the 13-mile drive home in the usual 21 minutes, give or take 60 seconds.
Five o'clock traffic, plus congestion related to the ArtPrize competition, made a quick trip impossible. The situation was made worse when a police officer stopped a driver for some sort of vehicular violation.
The only fun part of the trip home occurred when an impatient motorist opened his window and waived a left hand that featured a fully extended middle finger as he passed the car that had been stopped by the officer. I'm not sure who he was aiming for, but he got me to thinking about John Swartz.
Back in 2006, John Swartz and his wife, Judy, were driving through the Village of St. Johnsville, New York, on the way to visit Judy's son. While sitting in the passenger's seat, John noticed a police car, whose occupant, Officer Richard Insognia, was evidently running a radar gun of the type commonly used before speeding tickets are written.
At that point, Swartz suddenly thought, “Hey, why not give that officer the finger?” He then gave the officer the finger, and he gave it so well as to soon see Officer Insognia pull into the driveway with lights flashing once John and his wife had reached their destination.
Backup officers soon arrived. Words were exchanged. They included argument and counter-argument, plus statements that Swartz muttered in a way that made them difficult to hear, thus intensifying the parties' discomfort with each other.
When the meeting was over, Insognia arrested Swartz for disorderly conduct. The officer later indicated he had followed and stopped Swartz because he thought that criminal activity was in process, although the only activity he had observed was Swartz' disrespectful digit.
Charges and counter-charges, complaints and answers, lawyers and legal fees, and motions and dismissals ensued following the arrest. After that came a trip to the court of appeals. And not until April 2013 was the matter resolved, following a three-day trial and two hours of jury deliberations.
Seven years of litigation over a flippin' middle finger? The controversy consumed 84 months in part because, after Insognia charged Swartz with disorderly conduct, Swartz had to go to court to defend himself. However, that proceeding was repeatedly delayed such that Swartz had to visit the courthouse again and again before the charges were dismissed on the ground that Swartz had not received a speedy trial.
But Swartz wasn't finished. He sued Insognia and an officer who had been called to the scene as a backup for false arrest, wrongful seizure and related violations of his civil rights arising from all he had been put through.
Initially, a federal trial court dismissed Swartz's claim on the thought that the stop was reasonable, such that the officer had a "qualified immunity" to act as he did because "an objectively reasonable officer could have believed there was probable cause for a disorderly conduct arrest." The trial court may have also adopted the officer's claim that he thought Swartz' gesture was either an attempt to get attention over something that was wrong in the car or a sign that Swartz was about to harm another occupant of the car.
Undaunted, Swartz appealed the dismissal to the U.S. Court of Appeals for the Second Circuit. That court ruled the trial court's order dismissing Swartz's claims would be vacated so the case was returned to the trial court for an eventual trial.
As the Second Circuit's opinion stated, "Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insognia to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."
The Court added, "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."
The Second Circuit's ruling was issued in January 2013, and perhaps Plaintiff Swartz sensed he had won a victory for the little guy. After all, radar guns can be annoying, and sometimes one has got to speak one's mind — to literally "let it fly" as it were.
However, all that Swartz had "won" was the right to proceed to trial before a jury of his peers.
So what did a jury of Swartz's peers think? According to media reports, the jury heard the dispute for three days, deliberated for two hours, and then found that Insognia and his fellow officer had committed no legal wrong. The jury concluded that the officer had reasonable suspicion to stop Swartz's car and probable cause to arrest him after the stop.
The legal opinions issued contain numerous well-reasoned statements of law related to civil rights, seizures of persons and property, disorderly conduct, and when an officer of the law is justified in demanding a motorist's license and registration. The appellate opinion even includes a footnote on the origin of "the finger," which the court says may have first appeared in the United States "when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants."
Still, the case may not have been worth its nearly seven-year journey through the courts, or the 84 months it drained from the lives of the legal combatants. Who would argue that the driveway dispute or the legal system delivered a winner?
All of which might be one more reason to keep both hands firmly on the wheel the next time you're stuck in traffic.
Bill Rohn is a trial partner and former Trial Practice Group chairman in the law firm of Varnum LLP. He focuses his litigation practice on commercial, construction, employment and product liability matters. He can be reached at firstname.lastname@example.org.