Man Fights For His Right To ‘Flip The Bird’ … And Wins

" important victory for civil rights."

“…an important victory for civil rights.”

We’re a feisty nation of independence-loving freedom fighters and we know a worthy cause when we see one. So when John Swartz, Vietnam vet and retired airline pilot, was stopped by the police for “giving the finger,” and subsequently charged with “disorderly conduct,” he did not take it lightly. He fought the law and damn if the court didn’t hold up his right to hold up his finger!

The story started on Memorial Day, 2006. Swartz and his wife were driving through St. Johnsville, a small town about 50 miles west of Albany, New York; she was doing the driving, they were headed for her son’s home and, at some point, Swartz noticed a cop on the side of the road aiming a radar gun in their direction. He then did what many red-blooded men – who are not thinking straight – would do: he reached out the window and over the roof and flipped the officer “the bird.”

Never wise under any circumstances, it became apparent it was particularly foolish with this particular lawman. As Swartz and his wife continued on, neither speeding not exhibiting any other moving violations, they discovered the police had been in pursuit when they arrived at their destination and he pulled up behind them with lights flashing. The usual steps ensued: Swartz was asked for license and registration, but after making comment to his wife to “not show anything” (he was feeling feisty that day!), he was admonished by the officer to, “Shut your mouth. Your ass is in enough trouble.” Clearly this was not going to go well.

The officer took Swartz’ reluctantly-surrendered documents, went back to his patrol car and, for some reason, then called for backup – three more officers arrived at the scene, creating quite the hubbub on a holiday weekend. Swartz, by now alarmed at escalating events, got out of his car to speak to the original officer (“muttered” or “shouted,” depending on the source), wanting to make clear this was out-of-line and “humiliating,” and at that point he was arrested for disorderly conduct. [Source]

Though the charge was later dismissed, Swartz was incensed that the banal – if unwise – act of giving an officer the finger could incite such a string of embarrassing events, particularly egregious having been carried out in front of his wife and grandchildren. He filed a lawsuit against the police department for “malicious prosecution,” which was then flatly dismissed. From MSN.News/AP

A lower-court judge in Albany had tossed out the couple’s claim prior to trial after police maintained they stopped Swartz’s car, which his wife was driving, because they feared the finger gesture was a sign of a domestic dispute.

Really? Swartz didn’t buy this either and not being one to back down from a fight, he soldiered on with an appeal to the federal court to pursue his lawsuit. Here, he struck pay dirt:

A Vietnam veteran and retired airline pilot arrested after giving the finger to a police officer can sue police for malicious prosecution, a federal appeals court ruled Thursday as it reversed a lower-court judge who found the actions of officers reasonable.

The appeals court said such a conclusion was unreasonable given “the nearly universal recognition that this gesture is an insult.” It pointed out in a footnote that Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle and that the first recorded use of the gesture in the United States may have occurred in 1886, when a joint baseball team photograph of the Boston Bean Eaters and the New York Giants showed a Boston pitcher giving the finger to the Giants.

“Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred,” the court said. [Source]

Group picture of the Boston Beaneaters and New York Giants, Major League Baseball Opening Day 1886. Charles Radbourn, back row far left, gives the finger to the cameraman; photo courtesy of

Group picture of the Boston Beaneaters and New York Giants, Major League Baseball Opening Day 1886. Charles Radbourn, back row far left, gives the finger to the cameraman; photo courtesy of

Whether Swartz ultimately prevails in his suit against the police remains to be seen, but there’s victory to be found in winning the right to sue when your right “to bird” has been impugned.

I believe Robert Keach III, Swartz’s lawyer in the case, put it best when he called the ruling by the federal court an “important victory for civil rights.” [Source]

“It reaffirms that just because you insult a police officer doesn’t give that police officer the right to detain you or arrest you and take away your liberty.”

Yep…your liberty to flip ‘im one. Right on.




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