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Bird is the word in court ruling

Thursday, January 10, 2013 - Updated: 8:45 AM


For the C-S-E

Flipping the bird at a police officer isn’t enough reason for them to pull you over, a federal appeals court ruled in a local case Thursday.

In May 2006, St. Johnsville resident John Swartz offered then-village police Officer Richard Insogna the “gesture of insult known for centuries,” as the court dubbed it. He and his wife, Judy Mayton-Swartz were pulled over, and later arrested and charged with disorderly conduct.

The appeals court, however, determined flashing a middle finger is “not the basis for a reasonable suspicion of a traffic violation or impending criminal activity,” the decision reads.

The appeals court erased the civil right suit’s July 2011 dismissal and ordered it to be tried, as Swartz’s account of the event differs from Insogna’s.

Swartz’s attorney, Elmer Robert Keach of Amsterdam, said he’s filed paperwork to have the case scheduled on the district court calendar.

“This was a clear violation of [Swartz’s] civil rights, and I look forward to trying to case,” Keach said Thursday.

The more-than-six-year-old case started when the Swartzes were driving through St. Johnsville to visit Judy’s son on Monroe Street. John, the passenger, observed Insogna parked in a police cruiser using a radar device, and “expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof.”

“I’ve never done anything like that before, or since,” Swartz said Thursday. “It was just a situation in a small village where I saw things happen unfairly, like radar speed traps, and it boiled over that day. I’m not proud of what I did, it just happened.”

The decision says the Swartzes were not speeding nor committing any other traffic violations, but once they reached Monroe Street and parked, Insogna pulled behind them, and ordered them back into the vehicle to initiate a traffic stop.

According to the decision, Insogna decided to stop the Swartzes for three reasons: the gesture was an attempt to get the officer’s attention; he thought there might be a problem in the car; and, that he was concerned for the female driver.

The appeals court disagrees with that line of thinking.

“Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer,” the decision reads.

After the stop was initiated, Insogna reportedly called for backup, to which three officers responded, including Montgomery County Sheriff’s Deputy Kevin Collins, who is named as a defendant with Insogna.

The couple was eventually released, after which Swartz asked to speak to Insogna. He was denied, said “I feel like an ass,” after which he was arrested.

The charge remained pending for several years, during which John made three court appearances. The subsequent civil rights suit was ultimately dismissed in favor of the officers in July 2011, upon which Keach filed the appeal.

Though the appeals court ruled in Swartz’s favor, he said he’s not looking at it as an “in your face” victory, rather justice from what he deemed maltreatment from the responding officers.

“Their treatment of me was paramount of someone being a felon,” Swartz said. “The amount of ridicule and disrespect caught me by surprise. I tried to tell the officer ‘sorry.’”

Swartz said he thought important to see the case through because the incident happened in front of his grandchildren, who watched him get cuffed and taken away to the police station.

“They were somewhat distraught,” said Swartz, a retired airline pilot who moved to St. Johnsville from Long Island. “This decision teaches them two lessons, maybe more — their grandfather didn’t do anything wrong, and the police aren’t always right. They’ll see that the system works, rather slowly, but it does work.”

District court dismissed the case in agreement with Insogna’s argument about fear for Judy Swartz’s safety. Insogna and Collins’ attorney, Thomas Murphy of Albany, pointed to the fact the jury will have determine which account of the event was accurate.

“When we go back to trial, the jury determines who is telling the truth, and the jury determines which facts to believe,” Murphy said. “While we think district court was correct, and the case was correctly decided, Second Circuit disagrees and finds factual question, so that will require a trial, which we’re fully prepared to do to defend the officers.”

Undersheriff Jeffery T. Smith confirmed Collins is still an officer with the department, and that while Insogna was a deputy after working for the St. Johnsville department, he is no longer employed by the county. He referred all questions for comment to Barber.


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