John Swartz, a 62-year-old Vietnam veteran and retired airline pilot, is pursuing his civil rights case that stems from his May 2006 arrest for disorderly conduct after he stuck his arm out of a car window and extended his middle finger in the direction of a police officer using a radar speed-tracking device in St. Johnsville, N.Y.
While the disorderly conduct charge was later dropped, Swartz isn't letting go of his civil suit, which alleges he was the victim of an illegal traffic stop, false arrest and malicious prosecution.
A lower court judge dismissed Swartz's civil case, but the 2nd U.S. Circuit Court of Appeals in Manhattan reversed that decision and Swartz can now proceed with his suit, The New York Times reported.
The police officer who was the recipient of the single-finger salute, Richard Insogna, contends he chased the car because he thought it may have been a distress signal and he "wanted to assure the safety of the passengers."
And his attorney, Thomas K. Murphy, contended the gesture toward the officer was uncommon in St. Johnsville.
"This is St. Johnsville, New York," Murphy said. "Not the Bronx. Not Manhattan. It's a sleepy little town."
But Judge Jon O. Newman, in a 14-page opinion for a three-judge panel, provided a synopsis of the centuries-long history of the sexually vulgar middle-finger salute and expressed skepticism of Insogna's naivete.
"Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress," Newman wrote.
"But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness."
The ruling, which was joined by Judges Gerard E. Lynch and Raymond J. Lohier Jr., made no finding on the merits of Swartz's claim.
Swartz's lawyer, Elmer Robert Keach III, said Thursday he had written to the judge in Utica who dismissed the suit to ask that it be placed on the trial calendar.
Swartz said his action on that day more than six years ago was an anomaly for him. "I never did it before and I haven't done it since," he said, adding, "It's not something I'm proud of."
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