Know your Legal Rights / If I give an Officer the “finger” can I be arrested?

By Barry Krischer

First, we must consider what charge an officer would lodge against an individual for giving him the finger. It would seem most likely that the officer’s response to what he would perceive as “contempt of cop” would be a disorderly conduct charge. The case law is quite clear that this act does not constitute the crime of disorderly conduct.

In a federal case arising from such an arrest the court found the Disorderly Conduct arrest unlawful. “Even with the wide range of conduct subsumed under New York’s expansive definition of disorderly conduct, [defendant’s] conduct could not create a reasonable suspicion that a disorderly conduct violation had been or was being committed. …This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” The court went on to say:

“Indeed, such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred. ‘The disorderly conduct statute at issue here does not circumscribe pure speech directed at an individual. Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder [fighting words] …’ And because an objectively reasonable police officer would not have believed that probable cause existed, neither [officer] was entitled to the defense of qualified immunity,” when sued for false arrest. Swartz v. Insogna, U.S. Court of Appeals – 2nd Circuit, (Jan. 3, 2013).

A recent case proves the age-old truth that “no act of kindness goes unpunished.” Debra was stopped for a traffic violation, speeding. The officer cut her a break and wrote a ticket for a non-moving violation. Most of us would be thankful. And then there are those individuals like Debra, who after getting her break gave the officer a one-finger salute as she drove off. Less than 1000 feet later Debra was pulled over again, and the break vanished. Her non-moving violation was withdrawn and instead got the speeding ticket she initially earned. Debra then sued the officer for violating her civil rights by punishing her First Amendment right to free speech. The Sixth Circuit Court of Appeals agreed. See, Cruise-Gulyas v. Minard, U.S. Court of Appeals – 6th Cir. (March 13, 2019).

“Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure [arrest].” The court ruled that giving an officer the finger is protected speech. Sure, you can’t obstruct them from doing their jobs, or act threatening towards them, but courts have routinely found that the one-finger salute is expressive, protected, First Amendment speech. Quoting the court, it’s “crude, but not criminal.”

So, while the wisdom of such an act is doubtful, the answer to our opening question is “No,” you cannot be arrested for giving an officer the finger.

Editor’s Note: Barry Krischer has been a criminal law practitioner for 48 years. He served as State Attorney in Palm Beach County from 1992 – 2008. He currently volunteers at the Palm Beach County Sheriff’s Office, Legal Affairs Unit, and regularly provides in-service training to law enforcement officers. He can be reached at [email protected].

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