Flipping off a police officer-making an obscene hand gesture, commonly known as “giving the finger”-is a provocative act, but is it illegal in New York? The answer is rooted in constitutional law, court precedent, and the realities of police discretion.
First Amendment Protection
Flipping off a cop is generally considered a form of expression protected by the First Amendment to the U.S. Constitution. Courts have repeatedly affirmed that rude or offensive gestures, including the middle finger, are protected speech.
In a notable 2013 decision, the U.S. Court of Appeals for the Second Circuit (which covers New York) ruled that simply giving the finger to a police officer does not constitute probable cause for arrest or a violation of disorderly conduct laws. The court stated, “such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred”.
This ruling means that, as a matter of law, flipping off a cop in New York is not a crime in itself. Similar decisions in other jurisdictions have reinforced that while the gesture is offensive, it is not illegal and is protected as free speech.
Disorderly Conduct and Police Discretion
Despite clear legal precedent, the situation on the street can be more complicated. Disorderly conduct laws in New York and elsewhere are written broadly, giving police significant discretion. These laws prohibit actions that disturb the peace, but courts have clarified that mere insults or offensive gestures, without more, do not meet the threshold for disorderly conduct.
However, police officers have been known to arrest individuals for disorderly conduct or similar charges after being flipped off, even if those charges do not ultimately hold up in court. For example, a New York man was arrested after giving the finger to police but later filed a lawsuit arguing that his constitutional rights had been violated. In many such cases, courts have sided with the individuals, reaffirming that the gesture is protected speech.
Legal Risks and Real-World Consequences
While flipping off a cop is not illegal, it can still result in negative consequences:
- Possible Arrest: Police may arrest you for disorderly conduct or another charge, even if it is not legally justified. Such arrests are often challenged and dismissed, but they can still lead to temporary detention, legal fees, and court appearances.
- Retaliation: Officers may find other reasons to detain or cite you, such as for unrelated infractions, especially if they feel disrespected.
- Qualified Immunity: Even if you sue for wrongful arrest, officers may claim qualified immunity, complicating your ability to recover damages.
What the Courts Have Said
- Protected Speech: Giving the finger to police is a constitutionally protected act of free speech.
- Not Probable Cause: The gesture alone does not provide probable cause for arrest or justify a stop.
- Insults vs. Threats: Insulting or flipping off a police officer is legal; making threats or inciting violence is not protected and can be prosecuted.
Flipping Off a Cop in New York
| Aspect | Legal Status in NY | Court Rulings |
|---|---|---|
| Flipping off a cop | Not illegal | Protected by First Amendment |
| Arrest for gesture alone | Not justified | No probable cause for disorderly conduct |
| Disorderly conduct charge | Unlikely to stand in court | Gesture alone insufficient |
| Threatening/violent speech | Illegal | Not protected by free speech |
| Real-world risk of arrest | Possible, but challengeable | Lawsuits often succeed |
Key Takeaways
- Flipping off a cop in New York is not illegal and is protected by the First Amendment.
- Police may still arrest you, but such arrests are often found to be unconstitutional.
- Disorderly conduct laws do not generally cover non-threatening, offensive gestures.
- Insulting a police officer is legal, but making threats is not.
You have the legal right to flip off a cop in New York, but exercising that right may still lead to temporary legal trouble. If arrested or cited, it is important to remain calm, exercise your right to remain silent, and seek legal counsel.
Sources:
- https://www.wirthlawoffice.com/tulsa-attorney-blog/2021/04/can-i-legally-flip-off-the-police
- https://lawcdh.com/if-i-flip-off-a-cop-can-i-get-arrested/
- https://www.police1.com/legal/articles/ny-court-flipping-the-bird-at-cops-not-cause-for-arrest-1DqMc8B83NxkPtRq/
- https://www.lexipol.com/resources/blog/flying-the-finger-leads-to-a-traffic-stop-then-a-lawsuit/
- https://www.findlaw.com
