Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1463
because many arrests occur without witnesses other than the arresting
officer and the arrestee. 422
In addition, because members of the public are conscious of police
officers’ power and mindful of the potential for abuse of that power,
officers must ensure that the public has no reason to perceive their
behavior as unethical or improper. 423 Arbitrary arrests and
prosecutions ultimately undercut the public’s perception of law
enforcement authority. When citizens perceive that police wield their
authority unfairly and begin to view law enforcement as an exercise of
unchecked executive power, they come to resent the entire machinery
of law enforcement. 424 The New York Police Department’s Police
Student’s Guide cautions that officers must be careful to use their
discretionary powers in a way that promotes public trust and upholds
the Department’s ethical standards, and notes that discretion “does not
entail using police authority . . . to punish individuals who are
discourteous or who give officers a bad time.” 425
On the other hand, some have argued that allowing police officers to
arrest individuals who use the middle finger gesture enables them to
nip a potentially more serious situation in the bud. For example, a
Texas police officer stated that his department recently cracked down
on use of the middle finger gesture because the gesture often leads to
violence. According to the officer, “Words [or gestures] lead to fists,
fists lead to some type of weapon.” 426 New York City’s former mayor
422 Id. at 135-36. Justice Powell went on to state that a breach-of-peace conviction
could be based on nothing more than the court’s acceptance of the officer’s testimony.
Id. Similarly, the drafters of the Model Penal Code acknowledged that “even the most
carefully drafted disorderly conduct statute leaves considerable room for
interpretation,” and that a judge is more likely to sympathize with the officer’s version
of the story. MODEL PENAL CODE § 250.1 cmt. 4(a) (Tentative Draft No. 13, 1961).
423 NEW YORK POLICE DEPARTMENT, supra note 362, ch. 17, at 5; see also MODEL
PENAL CODE § 250.2 cmt. 7(i) (1962) (suggesting that some groups perceive that
arrests often occur because police officer’s personal sensibilities are affronted and not
because officer is striving to protect public interest, and that “[i]t would therefore
improve police prestige if the law and police administration took a conservative
approach to penalizing petty wounds to policeman’s sensibilities”); cf. Peter
Hirschfeld, Animal Cruelty Case Yields ‘Doggone’ Dismissal, TIMES ARGUS (Montpelier,
Vt.), June 6, 2007, available at http://www.timesargus.com/apps/pbcs.dll/article?AID=/
20070606/NEWS01/706060362/1002/NEWS01 (stating that charges were dropped
against woman for “staring” at police dog in “taunting/harassing manner,” and noting
that public defender in case “likened the act to giving a police officer the finger — a
form of expression protected by rights accorded under the First Amendment”).
424 See KADISH, supra note 48, at 30-33.
425 NEW YORK POLICE DEPARTMENT, supra note 362, ch. 6, at 2.
426 Nicole Murray, Teen Arrested for Making Obscene Gesture (NBC-6 KCEN
television broadcast Mar. 31, 2005), available at http://web.archive.org/web/