In a decision that may unsettle many law enforcement officers, a U.S. appeals court ruled Thursday that a federal judge erred in dismissing a civil rights lawsuit filed against police by a Montgomery County man who claims he was wrongfully arrested after giving the middle finger to a cop six years ago.

The Second Circuit U.S. Court of Appeals said the "ancient gesture of insult" was not enough for police to stop the vehicle in which the man was a passenger and that the federal lawsuit, which alleges wrongful arrest and malicious prosecution, should go to trial.

The case began in May 2006 when John Swartz, 62, a St. Johnsville resident who was a passenger in a vehicle being driven by his then-fiance, Judy Mayton-Swartz, made an obscene gesture to a village police officer as the couple drove past a radar speed trap. The part-time officer, Richard Insogna, pursued the couple with his lights flashing, stopped their vehicle and had a confrontation with Swartz, who was arrested for disorderly conduct.

Insogna was assisted at the scene by a Montgomery County sheriff's deputy, Kevin Collins, and both are named as defendants in the lawsuit filed in U.S. District Court. The officers claimed Swartz used foul language and became unruly. Insogna said he stopped the vehicle because he believed Swartz's obscene gesture could have been a signal to draw his attention or an indication that the female driver was in danger. Mayton-Swartz is also a plaintiff in the federal claim.

But the federal appeals court said the stop "was not lawful."

"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 court ruled. "And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens' protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture."

Last July, U.S. District Judge David N. Hurd granted the officers' motion to dismiss the federal lawsuit. He characterized Swartz's obscene gesture as "odd and aggressive behavior" and a reasonable basis for the officer to believe Swartz "was either engaged in or about to be engaged in criminal activity, such as violence against the driver of the vehicle."

The judge dismissed the couple's claims of an improper stop, wrongful arrest or malicious prosecution, but the appeals court overruled Hurd on all three points. No trial date has been set.

The disorderly conduct charges against Swartz were later dismissed due to speedy-trial violations, according to court records. Swartz is a Vietnam veteran and retired commercial airline pilot, having worked for American Airlines based out of John F. Kennedy International Airport.

"This decision is a total victory for the plaintiff and obviously he and I are happy about it," said the couple's attorney, Elmer R. Keach III of Amsterdam.

blyons@timesunion.com • 518-454-5547 • @blyonswriter