An eight-member jury in U.S. District Court last week dismissed a lawsuit brought by a St. Johnsville man who was arrested after he gave the finger to police.
John Swartz and his wife, Judy Mayton-Swartz, sued for unspecified damages for what they said was a malicious prosecution against the Vietnam veteran and retired pilot.
According to Thomas Murphy, the attorney who represented the defendants, the jury found probable cause for Swartz’s arrest after the incident.
“Their verdict demonstrates that the stop of the Swartz vehicle and the arrest of Mr. Swartz for disorderly conduct were lawful and were not in retaliation for Mr. Swartz having extended his middle finger at Officer (Richard) Insogna,” a statement issued by Murphy and the St. Johnsville Police Department read.
“In fact, the jury was instructed by Judge (David) Hurd that the mere act of Mr. Swartz exercising his First Amendment rights by gesturing toward the officer with his middle finger was not a sufficient legal basis for the stop of the Swartz vehicle,” the statement continued. “The jury accepted the testimony of Officer Insogna and determined that there were numerous other factors present that provided the legal basis for the stop.”
The 2nd U.S. Circuit Court of Appeals in January restored the claim brought by Swartz and his wife after their May 2006 encounter with police.
A lower-court judge in Albany had tossed out the couple’s claim prior to trial after police maintained they stopped Swartz’s car, which his wife was driving, because they feared the gesture was a sign of a domestic dispute. The appeals court said such a conclusion was unreasonable given “the nearly universal recognition that this gesture is an insult.”
According to court documents, Swartz was arrested after he reached his arm out the passenger side of the vehicle and over its roof and gave the finger to Insogna after he saw the officer using a radar detector. Swartz and his wife continued to the home of the wife’s son, the documents read. Once there, they got out of the car, and a police car arrived, its lights flashing. As Swartz walked to the car’s trunk, he was ordered back in the car. He initially refused but later complied, the documents read. After collecting a driver’s license and a vehicle registration, Insogna returned to his car and summoned backup, prompting three more officers to arrive at the scene. Insogna then returned to the car, gave back the documents and told Swartz and his wife they could leave. Swartz got out of his car and asked to speak to Insogna, but other officers blocked his path, the documents read.
Swartz was arrested after he either muttered or shouted that he felt humiliated, the documents read. A charge of disorderly conduct brought against him was dismissed.
Page 2 of 2 - The trail was conducted over three days before Judge Hurd in U.S. District Court in Utica. The jury returned a verdict in favor of Insogna and Montgomery County Sheriff’s Deputy Kevin Collins, who was named in the lawsuit, after two hours of deliberation.
“In reaching their verdict the jury rejected the testimony of the plaintiffs, who denied all allegations of improper conduct, and found the testimony of the officers wholly credible,” the statement issued by Murphy and St. Johnsville police read.
Attorney Elmer Robert Keach III, who told the Gloversville Leader-Herald his client was disappointed with the verdict, represented Swartz.
Contributing: Associated Press