Digitus Impudicus: is flipping the bird illegal?

I recently read a federal appeals court ruling that says cops can't stop people for merely giving them the finger. That would make Roger Roots, author of Are Cops Constitutional, proud.

The case begins in May of 2006, when a man and his wife were visiting their daughter in Johnsonville, NY and came across a police cruiser running radar. Demonstrating his displeasure, John Swartz flipped-off the cop as the couple drove past.

Piqued by this insulting gesture, officer Richard Insogna took off after the offending motorists. Long story short, he arrested Mr. Swartz for disorderly conduct. While that charge was eventually dropped, there were several court appearances, legal expenses and inconveniences associated with the charges.

Swartz filed suit in district court seeking damages for illegal seizure, a disorderly conduct arrest and an alleged malicious prosecution, but his lawsuit was dismissed on grounds that cops are protected from civil actions based on qualified immunity.

But that's not the end of the story. On appeal, a federal judge wrote...

This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. 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. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

The whole decision is here.

The court partly used Digitus Impudicus: The Middle Finger and the Law by Ira Robbins, whose abstract is here.