Digitus Impudicus: The Middle Finger and the Law - Wired

1452 University of California, Davis [Vol. 41:1403
conduct or breach-of-peace convictions have resulted from the
following circumstances: a state trooper observed a garbage truck
driver giving the finger to other drivers; 356 an unruly bar patron who
had been escorted out of a nightclub by a police officer gave the finger
to the officer during a subsequent encounter; 357 an officer observed a
woman giving the finger to drivers who honked their horns when she
hesitated at a green traffic light; 358 a university alumnus gave the finger
and said “Fuck you!” to two officers in a university library; 359 and a
juvenile gave the finger and shouted “You fucker!” to officers as he
passed their parked patrol car. 360 In all but one of these cases, the
patrol car the middle finger as Cook was driving past car); see also Sandul v. Larion,
119 F.3d 1250, 1252 (6th Cir. 1997) (discussing arrest of John Sandul after police
officer observed Sandul yell vulgarities and give the middle finger to abortion
protesters). While passing a group of abortion protestors picketing outside a local
restaurant, Sandul, a passenger in a passing car, gave the finger to the group and
screamed, “F--k you.” Id. Unfortunately for Sandul, a police officer spotted the flying
bird. Id. The officer pursued the car to Sandul’s house and arrested him for “trying to
start a riot.” Id. The Sixth Circuit concluded that Sandul’s words and actions were
not likely to incite an immediate breach of the peace and therefore they did not
constitute fighting words. Id. at 1255.
356 Commonwealth v. Danley, 13 Pa. D. & C.4th 75, 77-78 (1991) (finding that
police officer’s observation of Danley giving the middle finger gesture to other drivers
did not give officer probable cause to stop Danley). After stopping Danley, the officer
noticed that Danley was driving under the influence and charged him with disorderly
conduct and driving under the influence. Id. at 76-78. The charges eventually were
dismissed because the court found that the middle finger gesture is offensive but not
obscene. Id. at 77.
357 Duran v. City of Douglas, 904 F.2d 1372, 1374-75 (9th Cir. 1990). In the
defendant’s suit against the officer and the city for an allegedly unlawful stop and
arrest, the court ruled that the defendant’s conduct could not have disturbed the peace
or incited a riot, because the officer was the only addressee. Id. at 1378.
358 State v. Rivenburgh, 933 S.W.2d 698, 700 (Tex. App. 1996). Rivenburgh was in
her car at a red light; when the light turned green people began to honk their horns at
her because she was holding up traffic. Id. A police officer testified that he saw
Rivenburgh make the middle finger gesture and mouth an obscenity in her rearview
mirror. Id. The officer stopped Rivenburgh for disorderly conduct, found that she
was drunk, and arrested her. Id. The appellate court affirmed the trial court’s
decision to dismiss the case based on its conclusion that the gesture did not tend to
incite an immediate breach of peace. Id. at 700-01.
359 State v. Wood, 679 N.E.2d 735, 735-39 (Ohio Ct. App. 1996) (finding that
Wood’s middle finger gesture to two Kent State University police officers in university
library constituted fighting words under state disorderly conduct statute). The court
acknowledged that the standard for fighting words is heightened in cases in which a
police officer is the “offended party,” because officers should expect to encounter
“some degree of verbal abuse.” Id. at 739.
360 In re Glenn, No. 35352, 1977 Ohio App. LEXIS 7217, at *1-2, 10-13 (Ohio Ct.
App. Jan. 20, 1977) (reversing lower court’s finding that juvenile engaged in