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Jury backs police in 'middle-finger' lawsuit

April 19, 2013
By MICHAEL ANICH , The Leader Herald

UTICA - A federal jury on Wednesday dismissed a St. Johnsville man's lawsuit against two police officers who arrested him seven years ago after he gave the middle finger to one of the officers.

John Swartz and his wife, Judy Mayton-Swartz, sued for unspecified damages for what they called a malicious prosecution against John Swartz, but an eight-member jury in U.S. District Court on Wednesday supported the officers. The jury found probable cause for Swartz's arrest after the incident.

Swartz's attorney, Elmer Robert Keach III of Amsterdam, said today he respects the jury's decision.

"Obviously, my client is disappointed with the verdict," he said.

"Mr. Swartz made a number of reasonable settlement offers throughout the four years of this [legal] case," Keach said.

He said the case could have been settled at a "small fraction" of what the Police Department spent on legal fees.

The lawsuit was filed against former St. Johnsville police Officer Richard Insogna and Montgomery County Sheriff's Deputy Kevin Collins in connection with the May 28, 2006, incident.

Mrs. Swartz was driving a vehicle through the village when her husband was seen giving police the middle finger.

Attorney Thomas Murphy of Albany represented the defendants, but he didn't return a phone call this morning seeking comment.

The St. Johnsville Police Department issued a news release noting the trial before Judge David N. Hurd lasted three days and the jury took two hours to dismiss the case.

"In reaching their verdict, the jury rejected the testimony of the plaintiffs, who denied all allegations of improper conduct, and found the testimony of the officers wholly credible," the news release stated. "Their verdict demonstrates that the stop of the Swartz vehicle and the arrest of Mr. Swartz for disorderly conduct were lawful and were not in retaliation for Mr. Swartz having extended his middle finger at Officer Insogna."

The release added: "In fact, the jury was specifically instructed by Judge Hurd that the mere act of Mr. Swartz exercising his First Amendment rights by gesturing toward the officer with his middle finger was not a sufficient legal basis for the stop of the Swartz vehicle. The jury accepted the testimony of Officer Insogna and determined that there were numerous other factors present that provided the legal basis for the stop."

St. Johnsville Police Chief Diana Callen said today, "As far as the case goes, I'm glad it's been resolved. The department can move forward."

A lower court judge in Albany previously tossed out the lawsuit, but an appeals court in January reinstated it.

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.

 
 

 

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