Sunday, January 20, 2013

Officer: Do You Like Birds?

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!