If I Flip Off a Cop, Can I Get Arrested?

Giving a police officer the middle finger, by itself, is generally protected speech and is not enough to justify an arrest in New York. As frustrating as an officer may find the gesture, rudeness toward the police is not a crime, and courts have said so directly. 

That being said, it is possible for an interaction that begins with a middle finger to escalate into a lawful arrest if other conduct occurs, and a criminal defense attorney may be needed.

The Middle Finger and Protected Speech

The First Amendment protects a broad range of expression, including speech and gestures that police officers may consider rude, disrespectful, or offensive. 

However, the law does distinguish between an offensive gesture alone and the behavior that sometimes accompanies it, including:

• Threatening conduct, such as statements or actions that place someone in fear of harm
• Fighting or violent behavior
• Interfering with police activity, such as physically obstructing an arrest or investigation
• Creating an actual public disturbance 

So, the gesture itself may be protected, but the conduct surrounding it will be judged separately. In some cases, you could end up being charged with disorderly conduct or obstruction.

Court Decisions Related to This Behavior

The leading case on this exact scenario arose in New York. In Swartz v. Insogna, 704 F.3d 105 (2d Cir. 2013), a passenger traveling through the village of St. Johnsville extended his middle finger toward an officer while passing the officer’s vehicle. 

According to the court’s description of the facts, the vehicle was not speeding or committing any other traffic violation at the time. The officer followed and stopped the vehicle anyway, and the encounter that followed eventually led to the passenger’s arrest for disorderly conduct. 

The Second Circuit rejected the idea that the middle-finger gesture itself created reasonable suspicion justifying the stop. The court characterized the gesture as an established insult rather than evidence that criminal activity was occurring, and ruled that an obscene gesture alone gave the officer no basis to believe a crime was underway or that anyone was in danger. 

You Could Still Be Arrested

None of this means an arrest cannot happen. Officers make arrest decisions on the street, and a person who flips off a police officer may find themselves in handcuffs regardless of what the First Amendment says. The legal question that follows is whether the officers had lawful grounds for the arrest based on something beyond the protected gesture. 

That’s where a defense lawyer comes in. They can examine whether probable cause actually existed for the offense charged, or whether the alleged offense was simply being used to punish protected expression. Still, you should never assume that an arrest will automatically be dismissed just because it began with a middle finger. Unfair arrests are upheld more often than anyone would like to imagine.

What If You Are Arrested for Something You Said or Gestured at Police?

If an encounter over a gesture or a comment turns into an arrest, what you do in the following minutes matters more than the fact that you gave them the finger. 

Keep the following in mind: 

• Do not argue with the officer over the constitutionality of the arrest. 
• Do not physically resist the arrest. 
• Exercise your right to remain silent. 
• Do not try to explain the gesture or convince the officer the arrest is unlawful. 
• Preserve every piece of available evidence, like cell phone video, dashcam footage, the names and contact information of witnesses, and locations of nearby surveillance cameras. 
• Contact a New York criminal defense attorney before speaking with anyone else about the case. 

From there, your attorney will handle the case and do everything they can to protect you and your future. 

Contact a New York Criminal Defense Lawyer at Passalacqua & Associates, LLC Today

The First Amendment protects your right to express yourself, even when that expression is directed at law enforcement. However, encounters with police can still lead to unlawful arrests and criminal charges.

If you’ve been charged with a crime in Utica or Syracuse and need legal help, contact our skilled criminal defense attorneys at Passalacqua & Associates, LLC. Schedule a free consultation today to discuss your case and protect your rights.

Passalacqua & Associates, LLC
7 Hopper St,
Utica, NY 13501
Open 24/7
(315) 500-6425

Passalacqua & Associates, LLC
499 S Warren St #220,
Syracuse, NY 13202
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(315) 500-6425