Swartz, et al v. Insogna, et al, No. 11-2846 (2d Cir. 2013)Annotate this Case
Plaintiff and his wife appealed the district court's grant of summary judgment to defendants, two officers. The suit sought damages for the seizure of plaintiffs who were ordered to return to their automobile, a disorderly conduct arrest, and an alleged malicious prosecution, all claimed to have been precipitated by plaintiff's "giving the finger" to a police officer. The court held that there was a question of whether a motor vehicle stop occurred; there was a question of whether there was probable cause for the arrest for disorderly conduct; and it was error for the district court to dismiss the malicious prosecution claim based on dictum in Burg v. Gosselin. Accordingly, the court vacated the judgment dismissing all three of plaintiffs' claims and remanded for further proceedings.