Oct. 15, 2003, 4:59PM

`Shooting the bird' rude, crude but legal

Appeals court overturns conviction

Copyright 2003 Houston Chronicle


Using the hand signal rooted in ancient times and popularly known today as "shooting the bird" may be rude, but it's not necessarily disorderly conduct, a Texas appeals court has ruled.

At issue for the 3rd Court of Appeals in Austin was whether Robert Lee Coggin incited "an immediate breach of the peace" when he allegedly gestured at a motorist with his raised middle finger two years ago as the former Lockhart resident tailgated a slow-moving vehicle in the left lane of U.S. 183.

Coggin was charged under an obscure state law that says "a person commits an offense if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace."

A jury last year convicted Coggin, 34, and fined him $250 for making "an offensive gesture by raising his middle finger in a public place," a finding that the appeals court reversed.

Coggin, an electrical engineer who now lives in Austin, denies he made the gesture, and, on the advice of his wife and a friend who urged him to "do what you got to do," spent $15,000 on attorney fees in pursuit of justice.

The quirky saga began in October 2001 on Colorado Street in Lockhart, which also is U.S. 183. Coggin, driving a souped-up Chevrolet Caprice that once did service as a police unit, came upon a vehicle driven by John Pastrano, a Caldwell County jailer. Coggin followed Pastrano's car closely, flashed his lights and motioned for the vehicle to move to the right lane.

Pastrano, thinking he was being stopped by a police car, move into the right lane, court records show. As Coggin passed Pastrano, he allegedly gestured with his raised middle finger.

Pastrano testified later that the incident angered him and he called 911. Lockhart police stopped Coggin and, after conferring with Pastrano, who was called to the scene by the dispatcher, wrote Coggin a ticket for the Class C misdemeanor of "disorderly conduct -- gesture."

Pastrano, 24, who now works for the Hays County Sheriff's Department in San Marcos, could not be reached Tuesday for comment.

Chief Justice Kenneth Law wrote in his dissenting opinion that the case did have "all of the ingredients for immediate violence" and that "one must ignore the reality of modern life to not recognize that many instances of `road rage' begin in such a manner."

His colleagues on the 3rd Court disagreed, noting "the evidence was legally insufficient to establish that (Coggin's) gesture tends to incite an immediate breach of the peace." They reversed the conviction and ordered acquittal.

But the court didn't stop there, offering context and history to the episode.

The court's majority opinion, filed Thursday, quoted a Merriam-Webster OnLine definition of the "bird" as "an obscene gesture of contempt made by pointing the middle finger up while keeping the other fingers down."

The jurists further explained that "the middle finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus.

"It was also known as the obscene finger, or the infamous finger, and there are a number of references to its use in the writings of classical authors. ... " the jurists continued. "The middle-finger jerk has survived for over 2,000 years and is still current in many parts of the world, especially in the United States."

Coggin said he felt exonerated and doesn't regret spending the money.

"It vindicates me," he said.