     11-2846-cv
     Swartz v. Insogna

                              UNITED STATES COURT OF APPEALS

                                  FOR THE SECOND CIRCUIT

                                     August Term 2012

                Heard: October 2, 2012          Decided: January 3, 2013

                                  Docket No. 11-2846-cv

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 1   John Swartz, Judy Mayton-Swartz,
 2
 3           Plaintiffs-Appellants,
 4
 5                       v.
 6
 7   Richard Insogna, Kevin Collins,
 8
 9        Defendants-Appellees.
10   - - - - - - - - - - - - - - - - - - - - - -
11
12   Before: NEWMAN, LYNCH, and LOHIER, Circuit Judges.
13
14           Appeal from the July 8, 2011, judgment of the United States

15   District Court for the Northern District of New York (David N. Hurd,

16   District Judge), dismissing a suit seeking damages for the seizure of

17   two persons ordered to return to an automobile, a disorderly conduct

18   arrest, and an alleged malicious prosecution, all claimed to have been

19   precipitated by an automobile passenger’s “giving the finger” to a

20   police officer.

21           Vacated and remanded.

22                                     Elmer Robert Keach, III, Law Office of
23                                       Elmer Robert Keach, III, PC, Amsterdam,
24                                       N.Y., for Appellants.
25
26                                     Catherine Ann Barber, Murphy, Burns,
27                                       Barber & Murphy, LLP, Albany, N.Y.
28                                       (Thomas K. Murphy, Murphy, Burns,
29                                       Barber & Murphy, LLP, Albany, N.Y. on
30                                       the brief), for Appellees.
31
32
 1   JON O. NEWMAN, Circuit Judge:

 2        An irate automobile passenger’s act of “giving the finger,” a

 3   gesture of insult known for centuries,1 to a policeman has led to a

 4   seizure of two persons ordered to return to an automobile, an arrest

 5   for disorderly conduct, a civil rights suit, and now this appeal.

 6   Plaintiffs-Appellants John Swartz (“John”) and his wife, Judy Mayton-

 7   Swartz (“Judy”), appeal the July 8, 2011, judgment of the United

 8   States District Court for the Northern District of New York (David N.

 9   Hurd,       District   Judge)   granting   summary    judgment to Defendants-

10   Appellees Richard Insogna, a St. Johnsville, New York, police officer,

11   and Kevin Collins, an officer with the Montgomery, New York, Sheriff’s

12   Department.

13        Accepting, as we must at this stage of the litigation, the

14   Plaintiffs’ version of the facts, we vacate the judgment and remand

15   for further proceedings.

16                                       Background

17        In      his   deposition   John   gave   the    following account of the

18   incident.       In May 2006, he and Judy were driving through the Village

19   of St. Johnsville on their way to the home of Judy’s son.              Judy was


             1
           See Bad Frog Brewery, Inc. v. New York State Liquor Authority,
     134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture
     by Diogenes to insult Demosthenes). Even earlier, Strepsiades was
     portrayed by Aristophanes as extending the middle finger to insult
     Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans.,
     Running Press (1962)). Possibly the first recorded use of the gesture
     in the United States occurred in 1886 when a joint baseball team
     photograph of the Boston Beaneaters and the New York Giants showed a
     Boston pitcher giving the finger to the Giants. See Ira P. Robbins,
     Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L.
     Rev. 1403, 1415 (2008).

                                             -2-
 1   driving; John was in the passenger seat.    At an intersection, John saw

 2   a local police officer, Defendant Insogna, in a police car using a

 3   radar device, of which John became aware because he had a radar

 4   detector.    John expressed his displeasure at what the officer was

 5   doing by reaching his right arm outside the passenger side window and
 6   extending his middle finger over the car’s roof.     The Plaintiffs, who

 7   were not speeding or committing any other traffic violation, continued

 8   to the home of Judy’s son.   Upon reaching their destination on Monroe

 9   Street, the Plaintiffs got out of the car and saw a police car with

10   its lights flashing approaching from the corner of the street they

11   were on, ultimately stopping behind Judy’s car.     When John walked to

12   the trunk of the car, Insogna ordered him and Judy to get back in the

13   car.    John initially refused, telling Insogna that he had not been

14   driving the car.    Insogna again told John to get back in the car,

15   stating that this was a traffic stop.     Judy then urged John to reenter

16   the car, and they both did so.

17          Insogna then asked to see Judy’s license and registration.   John

18   then told her not to show the officer anything, prompting Insogna to
19   say, “Shut your mouth, your ass is in enough trouble.”     Insogna then

20   collected Judy’s license and registration, returned to his police car

21   to check the documents, and called for backup.     Three other officers

22   soon appeared.

23          Insogna returned to Judy’s car, gave her back the documents, and

24   told the Plaintiffs they could go.      John then got out of the car and




                                       -3-
 1   asked if he could speak to Insogna, saying “I’d like to speak to you

 2   man to man.”   As he started walking toward Insogna, who was more than

 3   20 feet away, three other officers stepped in front of him.        John

 4   stopped, walked away from the officers, and said to himself in a voice

 5   apparently too low for his words to be understood, “I feel like an

 6   ass.”   One of the other officers asked John what he had said, and John

 7   repeated his remark loud enough to be heard.    At that point Defendant

 8   Collins said, “That does it, you’re under arrest,” but did not say for

 9   what.

10        John was then handcuffed, placed in a police car, and driven to

11   the police station, where he was given an appearance ticket and

12   released.   At the station, he was told he had been arrested for

13   disorderly conduct.   Insogna subsequently swore out a complaint, which

14   he filed in the local criminal court, charging Swartz with violation

15   of New York’s disorderly conduct statute.    Under New York law, such a

16   complaint “[s]erves as a basis . . . for the commencement of a

17   criminal action.” N.Y. Crim. Proc. Law § 100.10(1).    After he returned

18   home, John retained an attorney.    The charge remained pending for

19   several years, during which John made three court appearances.      The

20   charge was ultimately dismissed on speedy trial grounds.

21        The officers gave a different account.       In his deposition,

22   Insogna said that after he saw John give him the finger, he decided to

23   follow the car “to initiate a stop on it.”     As reasons he stated: (1)

24   John’s gesture “appeared to me he was trying to get my attention for




                                      -4-
 1   some reason,” (2) “I thought that maybe there could be a problem in

 2   the car.    I just wanted to assure the safety of the passengers,” and

 3   (3) “I was concerned for the female driver, if there was a domestic

 4   dispute.”

 5        Insogna said he followed the car and attempted to have it stop,

 6   but it continued to Monroe Street and did not stop until he drove up

 7   behind it.    At that point John got out of the car, ran at   Insogna,

 8   and called him various vulgar names.    After John and Judy got back

 9   into their car, Insogna obtained and checked Judy’s license and

10   registration, and then called for backup “for my safety.”        Other

11   officers arrived.   One of them, Officer Cuddy, approached John in the

12   car and identified himself after John asked who he was.   John started

13   yelling and described Insogna to Cuddy with some of the vulgar terms

14   he had previously used.    After Insogna told John and Judy they were

15   free to go, John got out of the car and told Insogna he wanted to talk

16   to him “man to man.”   Insogna told him that would not be a good idea,

17   at which point John walked away shouting that he, John, “felt like an

18   asshole.”    At that point, Insogna arrested John.

19        Collins in his deposition essentially confirmed Insogna’s account

20   of the episode preceding the arrest.

21        The District Court granted the Defendants’ motion for summary

22   judgment and dismissed the Plaintiffs’ suit.     The District Court,

23   accepting Insogna’s third reason for the automobile stop, ruled that

24   the stop was legal because Swartz’s “odd and aggressive behavior

25   directed at a police officer created a reasonable suspicion that



                                       -5-
 1   Swartz was either engaged in or about to be engaged in criminal

 2   activity, such as violence against the driver of the vehicle.”     The

 3   Court next ruled that the Defendants were entitled to qualified

 4   immunity on the false arrest claim because “an objectively reasonable

 5   officer could have believed that there was probable cause for a

 6   disorderly conduct arrest.”     Finally, the Court ruled that the fact

 7   that John had to make three court appearances did not amount to a

 8   “post-arraignment seizure,” a necessary component of a malicious

 9   prosecution claim.

10                                  Discussion

11   I. Legal Standards

12        This Court reviews de novo a district court’s order for summary

13   judgment, see Wachovia Bank, National Association v. VCG Special

14   Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011), the

15   standards for which are well settled, see Celotex Corp. v. Catrett,

16   477 U.S. 317, 322 (1986);     Wachovia Bank, National Association, 661

17   F.3d at 171; John Street Leasehold LLC v. FDIC, 196 F.3d 379, 382 (2d

18   Cir. 1999), including the principle, especially pertinent to this
19   appeal, that the facts are to be viewed on appeal in the light most

20   favorable to the non-moving party, see, e.g., Jaegly v. Couch, 439

21   F.3d 149, 151 (2d Cir. 2006).     The standards for qualified immunity

22   are also well settled.      “[Q]ualified immunity protects government

23   officials from liability for civil damages insofar as their conduct

24   does not violate clearly established statutory or constitutional

25   rights of which a reasonable person would have known.” Pearson v.

26   Callahan, 555 U.S. 223, 231 (2009) (internal citations and quotation

                                        -6-
 1   marks omitted).   “A police officer who has an objectively reasonable

 2   belief that his actions are lawful is entitled to qualified immunity.”

 3   Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415,

 4   433 (2d Cir. 2009).

 5   II. Substantive Analysis

 6          The motor vehicle stop. Initially we note that there is a

 7   question whether a motor vehicle stop occurred.           On a view of the

 8   facts favorable to the Plaintiffs, appropriate for assessing the

 9   Defendants’   motion   for   summary   judgment,   Judy   stopped   the   car

10   voluntarily upon arriving at her son’s home.       Moments later a police

11   car pulled up behind her car.          On the Plaintiffs’ view of the

12   evidence, the police did not stop the car.      They contend they got out

13   of the car after the car had stopped and were then told by Insogna to

14   get back into the car, which they did.     The instruction to reenter the

15   car might be considered a component of a motor vehicle stop because in

16   a typical automobile stop occupants would be told to remain in their

17   car.   But even if an automobile stop did not occur (although we note

18   that Insogna insists that he did cause Judy’s car to stop), the

19   instruction to reenter the car was a sufficient interference with
20   liberty to constitute a Fourth Amendment seizure. See Terry v. Ohio,
21   392 U.S. 1, 16 (1968) (“[W]henever a police officer accosts an

22   individual and restrains his freedom to walk away, he has ‘seized’

23   that person.”); cf. Whren v. United States, 517 U.S. 806, 809-10

24   (1996) (“Temporary detention of individuals during the stop of an

25   automobile by the police, even if only for a brief period and for a

26   limited purpose, constitutes a ‘seizure’ of ‘persons’ within the

                                        -7-
1    meaning of [the Fourth Amendment].”).            An officer “may not lawfully

2    order someone to stop unless the officer reasonably suspects the

3    person   of   being   engaged   in   illegal     activity.”   United   States       v.

4    Jenkins, 452 F.3d 207, 212 (2d Cir. 2006) (internal quotation marks

5    omitted).

6         The issue then becomes whether, on the Plaintiffs’ version of the

7    facts, Insogna had reasonable suspicion that criminal activity or a

8    traffic violation was afoot.         The only act Insogna had observed prior

9    to the stop that prompted him to initiate the stop was John’s giving-

10   the-finger gesture.      Insogna acknowledged in his deposition that he

11   had not observed any indication of a motor vehicle violation.                  He

12   stated, somewhat inconsistently, that he thought John “was trying to

13   get my attention for some reason” and that he “was concerned for the

14   female driver.”

15        Perhaps there is a police officer somewhere who would interpret

16   an automobile passenger’s giving him the finger as a signal of

17   distress,     creating   a   suspicion    that   something    occurring   in    the

18   automobile warranted investigation.            And perhaps that interpretation

19   is what prompted Insogna to act, as he claims.                 But the nearly

20   universal recognition that this gesture is an insult deprives such an

21   interpretation of reasonableness.          This ancient gesture of insult is
22   not the basis for a reasonable suspicion of a traffic violation or
23   impending criminal activity.          Surely no passenger planning some

24   wrongful conduct toward another occupant of an automobile would call

25   attention to himself by giving the finger to a police officer.             And if

26   there might be an automobile passenger somewhere who will give the

                                              -8-
 1   finger to a police officer as an ill-advised signal for help, it is

 2   far more consistent with all citizens’ protection against improper

 3   police apprehension to leave that highly unlikely signal without a

 4   response than to lend judicial approval to the stopping of every

 5   vehicle from which a passenger makes that gesture.

 6           On the Plaintiffs’ version of the facts, the stop was not lawful,

 7   and it was error to grant the Defendants summary judgment on the

 8   Plaintiffs’ claim concerning the stop. Cf. Sandul v. Larion, 119 F.3d

 9   1250, 1254-57 (6th Cir. 1997) (vacating grant of summary judgment to

10   police     officers   in     suit   by   automobile   passenger    arrested      for

11   disorderly conduct for shouting obscenity and giving the finger to

12   police officer); Cook v. Board of County Commissioners, 966 F. Supp.

13   1049,    1052   (D.   Kan.    1997)   (denying    motion   to   dismiss   suit    by

14   automobile passenger arrested for disorderly conduct for giving the

15   finger to a group of protesters, which included to police officer).

16   Nor were the Defendants entitled to qualified immunity on this claim

17   because a reasonable police officer would not have believed he was

18   entitled to initiate the law enforcement process in response to giving
19   the finger. Cf. Sandul, 119 F.3d at 1256-57; Cook, 966 F. Supp. at
20   1052.

21           The disorderly conduct arrest.         On the Plaintiffs’ version of the

22   facts, John’s conduct preceding his arrest for disorderly conduct

23   consisted only of the followings events.           From a distance of more than

24   20 feet, he stated in a normal voice that he wanted to speak to




                                              -9-
 1   Insogna “man to man”; when other officers stood in his way, he

 2   retreated and said in a tone too low for his words to be understood by

 3   the officers next to him, “I feel like an ass”; in response to an

 4   officer’s request to repeat what he had said, John did so; Collins

 5   then said, “That does it, you’re under arrest.”

 6            A police officer has probable cause for an arrest when he has

 7   “knowledge      or   reasonably      trustworthy    information    of    facts      and

 8   circumstances that are sufficient to warrant a person of reasonable

 9   caution in the belief that the person to be arrested has committed or

10   is committing a crime,” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.

11   1996),    and   is   entitled   to    qualified    immunity   where     he   “has    an

12   objectively reasonable belief that his actions are lawful,” Okin, 577

13   F.3d at 433.

14        Even with the wide range of conduct subsumed under New York’s

15   expansive definition of disorderly conduct,2 John’s conduct, on the



          2
           A person is guilty of disorderly conduct when, with intent to
     cause public inconvenience, annoyance or alarm, or recklessly creating
     a risk thereof:
          1. He engages in fighting              or     in   violent,   tumultuous       or
          threatening behavior; or
          2. He makes unreasonable noise; or
          3. In a public place, he uses abusive or obscene language, or
          makes an obscene gesture; or
          4. Without lawful authority, he disturbs any lawful assembly or
          meeting of persons; or




                                              -10-
1    Plaintiffs’ version of the facts, could not create a reasonable

2    suspicion that a disorderly conduct violation had been or was being

3    committed.   Neither Collins, whom John says arrested him, nor Insogna,

4    whose report says he made the arrest, had observed any disruptive

5    conduct, any threatening conduct, any shouting, or anything that

6    risked a public disturbance.     Whether or not giving the finger is

7    properly considered an obscene gesture, neither Collins, who had not

8    observed the gesture, nor Insogna, who had observed it and was likely

9    piqued by having seen it, makes any claim on appeal that the gesture

10   was disorderly conduct.    Indeed, such a gesture alone cannot establish

11   probable cause to believe a disorderly conduct violation has occurred.

12   “The disorderly conduct statute at issue here does not circumscribe

13   pure speech directed at an individual.     Rather, it is directed at

14   words and utterances coupled with an intent to create a risk of public

15   disorder . . . .”      People v. Tichenor, 89 N.Y.2d 769, 775 (1997)

16   (citations omitted).    On the Plaintiffs’ version, probable cause did

17   not exist for an arrest for disorderly conduct.       And because an



          5. He obstructs vehicular or pedestrian traffic; or
          6. He congregates with other persons in a public place and
          refuses to comply with a lawful order of the police to disperse;
          or
          7. He creates a hazardous or physically offensive condition by
          any act which serves no legitimate purpose.


     N.Y. Penal Law § 240.20.




                                       -11-
 1   objectively reasonable police officer would not have believed that

 2   probable cause existed, neither Defendant was entitled to the defense

 3   of qualified immunity on a motion for summary judgment.            Of course,

 4   the defense of qualified immunity and the lawfulness of the arrest

 5   itself will appropriately be in issue at trial, where both versions of

 6   the episode will be presented.

 7          The malicious prosecution claim.         The elements of a malicious

 8   prosecution claim under section 1983 are derived from applicable state
 9   law. See Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.
10   1984).    We have stated these elements, under New York law, to be (1)

11   commencement of a criminal proceeding, (2) favorable termination of

12   the proceeding, (3) lack of probable cause, and (4) institution of the

13   proceedings with actual malice. See Jocks v. Tavernier, 316 F.3d 128,

14   136 (2d Cir. 2003); Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997).

15   Additionally, we have said, to be actionable under section 1983 there

16   must     be   a   post-arraignment   seizure,    the   claim   being   grounded

17   ultimately on the Fourth Amendment’s prohibition of unreasonable
18   seizures. See Jocks, 316 F.3d at 136.
19          We have consistently held that a post-arraignment defendant who

20   is “obligated to appear in court in connection with [criminal] charges

21   whenever his attendance [i]s required” suffers a Fourth Amendment

22   deprivation of liberty. See Murphy, 118 F.3d at 947; Jocks, 316 F.3d

23   at 136 (concluding that “the requirements of attending criminal

24   proceedings and obeying the conditions of bail” constitute a post-

25   arraignment seizure); Rohman v. New York City Transit Authority, 215

26   F.3d 208, 215-16 (2d Cir. 2000) (finding Fourth Amendment implicated


                                           -12-
 1   where plaintiff “alleged that he was required, as a condition of his

 2   post-arraignment   release, to return to court on at least five

 3   occasions before the charges against him were ultimately dropped,” and

 4   where he was obliged by New York statute to “render himself at all

 5   times amenable to the orders and processes of the court”) (internal

 6   quotation marks omitted).   When Insogna swore out a complaint against

 7   John and filed it in a criminal court, he commenced a criminal action.
 8   See N.Y. Crim. Proc. Law §§ 100.05, 100.10.    He thus put in motion

 9   proceedings that rendered the defendant at all times subject to the

10   orders of the court, see § 510.40(2), and foreseeably required him to

11   incur the expense of a lawyer and the inconvenience and perhaps

12   expense of multiple court appearances.

13        The District Court relied on dictum in Burg v. Gosselin, 591 F.3d

14   95, 98 (2d Cir. 2010), to dismiss the malicious prosecution claim.

15   However, there was no claim for malicious prosecution in Burg, see id.

16   at 96 n.3, the plaintiff having sought damages only for the issuance

17   of a summons, see id. at 96.   We ruled “that the issuance of a pre-

18   arraignment, non-felony summons requiring a later court appearance,
19   without further restrictions, does not constitute a Fourth Amendment

20   seizure.” Id. at 98.   The plaintiff in Burg was required to appear in

21   court only once. See id.    We observed that “the number of [court]

22   appearances may bear upon whether there was a seizure,” adding in

23   dictum, however, that “it is hard to see how multiple appearances

24   required by a court, or for the convenience of the person answering

25   the summons, can be attributed to the conduct of the officer who

26   issues it.” Id.    Burg’s dictum is questionable unless the multiple


                                      -13-
1   appearances were for the arrestee’s convenience, but, in any event, we

2   decline to apply that dictum to the different context of a plaintiff

3   who was required to appear in court in connection with criminal

4   proceedings initiated by the defendant police officer.

5        Dismissal of the claim for malicious prosecution on motion for

6   summary judgment was error.

7                                 Conclusion

8        We vacate the judgment dismissing all three of the Plaintiffs’

9   claims and remand for further proceedings.




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