John and Judy were driving peacefully along in upstate New
York when John noticed a police officer who was operating a handheld radar
device on the side of the road. John
decided to show his displeasure with the officer by extending his right arm out
the window and waiving to the officer . . . with only one finger. John and Judy were not violating any traffic
laws, but upon arriving at their destination they were immediately approached
by police officers. After checking Judy’s
license and registration, and having a short exchange with John, John was
placed under arrest for disorderly conduct.
The criminal case was eventually dismissed on speedy trial grounds.
John brought a civil action for money damages alleging that
his Constitutional rights were violated by an unlawful seizure of his
person. At the trial level, summary
judgment was granted to the defendants and the case dismissed. However, in a recent decision reversing the
summary judgment of the trial court the Second Circuit held that “[t]his
ancient gesture of insult [i.e. giving the middle finger] is not the basis for
a reasonable suspicion of a traffic violation or impending criminal
activity.” Moreover, “such a gesture
alone cannot establish probable cause to believe a disorderly conduct violation
has occurred [under the New York disorderly conduct law].”
However, while John and Judy should not have been pulled
over in New York, it is impossible to know if the result would have been the
same here in Connecticut. Under
Connecticut law, a Breach of Peace in the Second Degree is defined as, “with intent
to cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person . . . in a public place, uses abusive or obscene language
or makes an obscene gesture; . . . "[P]ublic
place" means any area that is used or held out for use by the public
whether owned or operated by public or private interests” while a Connecticut case
dealing with an “obscene gesture” indicated that “flipping [] the bird” qualifies as one. Thus, while New York’s disorderly conduct law
may not include gesturing, the status of Connecticut’s law on the subject is arguable. Nonetheless, it is always advisable that
while you’re in Connecticut, you should show your displeasure with speed traps by
simply going the speed limit!
