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Court reinstates lawsuit

Man was stopped for giving police the finger

January 4, 2013
Staff and wire reports , The Leader Herald

ST. JOHNSVILLE - A federal appeals court has reinstated a lawsuit brought by a man who was arrested in St. Johnsville after giving the finger to a police officer and later sued for what he calls a malicious prosecution.

The 2nd U.S. Circuit Court of Appeals on Thursday restored the claim brought by John Swartz and his wife after their May 2006 encounter with police as they drove through the village. The couple is seeking unspecified damages.

A lower court judge in Albany had tossed out the claim after police maintained they stopped Swartz's car because they feared the finger gesture was a sign of a domestic dispute.

The appeals court says such a conclusion is unreasonable given "the nearly universal recognition that this gesture is an insult."

The lawsuit appeal names Richard Insogna and Kevin Collins - local police officers at the time of the incident - as defendants.

According to the account of the incident in John Swartz's deposition, Swartz and Judy Mayton-Swartz were driving in St. Johnsville. Judy was driving and John was in the passenger seat.

At an intersection, John saw Insogna in a police car using a radar device. John expressed his displeasure by "reaching his right arm outside the passenger-side window and extending his middle finger over the car's roof," the deposition stated.

Upon reaching their destination to Monroe Street, the two got out of their car and were approached by a police car with lights flashing. When John walked to the trunk of the car, Insogna ordered him and Judy to get back in the car, the deposition stated.

Insogna collected Judy's license and registration and returned to his car. Three other officers then showed up, the deposition stated.

Insogna then returned to Judy's car, gave her back the documents and told the two they could go. John then got out of the car and asked to speak with Insogna. The other officers stepped in front of John and he walked away, saying, "I feel like an ass," the deposition stated.

One of the other officers asked John what he said, and John repeated his remark. At that point, Officer Collins placed John under arrest, the deposition stated.

John was taken to the police station, given an appearance ticket for disorderly conduct and released, the deposition stated.

Insogna's deposition stated he followed the vehicle after he saw John give him the finger "to initiate a stop on it."

John's gesture "appeared to me he was trying to get my attention for some reason," the deposition stated.

Insogna said he followed the car and tried to stop it, but it continued to Monroe Street and did not stop until he drove behind it.

At that point, John got out of the car, ran at Insogna and called him various vulgar names, according to Insogna's deposition. John and Judy then got back into their car and Insogna checked license and registration, and then called for backup, the deposition stated.

After Insogna told John and Judy they were free to go, John got out of the car and told Insogna he wanted to talk to him "man to man," the deposition stated. Insogna told him that would not be a good idea, at which point John walked away shouting that he "felt like an [expletive]." Insogna then arrested John, charging him with disorderly conduct.

The court said the police officer should not have stopped the vehicle because John gave police the finger.

In the ruling, the court said "the nearly universal recognition that this [middle finger] gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity."

The court dismissed the previous judgment in the case and is allowing the Swartzes' lawsuit to continue.

The two are seeking damages for having to return to their vehicles after they were stopped, the disorderly conduct arrest and alleged malicious prosecution.

Swartz's attorney, Elmer Robert Keach, said today he is asking the court to put his client's lawsuit case on the trial calendar as soon as possible.

"Officers should be able to stop people when they engage in illegal conduct, not because they are subjectively offended," Keach said. "If you are going to allow police officers to arrest someone just because of what the person subjectively says or does, that is going to be a slippery slope that will lead to bad results."

Attorney Thomas Murphy, who is representing Collins, pointed out Friday that Swartz is suing Insogna and Collins, and not municipalities.

Montgomery County Undersheriff Jeff Smith declined to comment on the case this morning, stating Kevin Collins works at the sheriff's office.

 
 

 

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