I never thought I’d be welcoming the new year with a middle finger, or what George W. Bush, in a rarely eloquent moment, called “the one-fingered victory salute.” But I am, and gladly so, at least in grateful recognition of John Swartz.
Swartz is a Vietnam veteran who, on Memorial Day weekend a few years ago, was riding along with his girlfriend to visit relatives when he saw a cop parked with his speed radar, gunning cars. Swartz is the sort of guy who doesn’t like his hard-earned cops wasting their time on speed traps when they could be spending their time more constructively chasing criminals. As he drove by, Swartz flipped the cop his middle finger.
The cop immediately chased after Swartz. Other units were called in, overkill being the habit of small-town cops even in Upstate New York, where this took place, and he was arrested for disorderly conduct. After a few years the charge was dropped on speedy trial grounds, though no sensible state attorney would prosecute the sort of charge that itself deserves a squad of middle finger. But Swartz knows his rights. He fought for them with a trigger finger. He sued, charging that his civil rights were violated.
A district court judge dismissed the suit, but last Thursday the influential Second Circuit Court of Appeals, former home of Learned Hand, Thurgood Marshall and Sonia Sotomayor, ruled that the suit can go forward. Another victory salute.
In a flip of digital surrealism, the arresting cop claims he set chase after Swartz because he interpreted the middle finger as a signal for help, and he, in his words, “wanted to assure the safety of the passengers.”
“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress,” Judge John Newman of the Second Circuit wrote for a three-judge panel. “But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.”
The cop, Richard Insogna, must have misinterpreted the meaning of safety later—after he told Swartz to “shut your mouth, your ass is in enough trouble”—when the cops’ far greater obscenity than a heavenward finger took place: arresting Swartz in front of his girlfriend and her son, with all the usual displays of police force putting an unthreatening citizen in his place.
Swartz will very likely prevail in court, especially on First Amendment grounds. His isn’t an isolated case. These arrests take place routinely, though too few get challenged.
As Ira Robbins, the American University law professor, argued in a wonderful history of the middle finger in 2008, “police officers should be trained to tolerate offensive speech and gestures,” unless they rise to the level of fighting words. Ten years ago a Texas court of appeals shot down a disorderly conduct charge against a motorist who’d flipped off another driver. Why should it be any different for an individual flipping off a cop?
The gesture has been around longer than Genesis. Diogenes flipped it to “the demagogues of Athens.” The Romans, in a preview of the imperial Bush, called it “the impudent finger.” It had its official American debut in 1886, when a Boston pitcher gave the finger to the New York Giants in a group picture (underscoring the long-standing vulgarity of Boston baseball). The gesture may be “repugnant, distasteful, and crass,” in the words of one judge. I personally find it to be all three. But so are many passages in the Bible that are routinely read in church. God’s command to Abraham to incinerate his only son, or one Psalm’s “blessing” on the dashing of babies against rocks, make the middle finger look like a cherubic prank in comparison.
It may well be true that, as a local sheriff’s deputy told me this week, for every cop who’d arrest a flipping Swartz, there are 300 who’d smile professionally and let gesture and gesturer pass. But that hasn’t diminished the richly documented cases of frivolous arrests over a cop’s ego. “Disorderly conduct” and “resisting arrest without violence” are the sort of subjective, arbitrary charges that get slapped around when a cop’s self-importance (as opposed to a law) is violated.
Cops are no more above the finger than they are above the law, though they often act it, as if somehow they should be beyond insult. It’s part of our dangerous trend toward not only worshipping anything and everything in uniform, but submitting to it in the misguided name of respect for authority. This, in a nation founded on the principle of defying authority in defense of individual rights. The American Revolution, after all, was one great star-spangled middle finger extending all the way across the Atlantic to England.
Any cop who thinks he’s King George deserves no less.
Pierre Tristam is FlaglerLive’s editor. Reach him by email here or follow him on Twitter. This column is also syndicated through Florida Voices, and has appeared in the Tallahassee Democrat and the Florida Sun-Sentinel.