Man charged after making gun gesture with finger has appeal rejected

Man 'created a hazardous condition' by raising his hand in gun shape

On a warm day in June 2018, Stephen Kirchner was walking with a fellow neighbour when they came up on Josh Klingseisen's yard.

They were not friendly with Mr Klingseisen. In fact, the woman walking with Kirchner, Elaine Natore, had a "no contact" order against Mr Klingseisen, who happened to be outside mulching in his yard in Manor Township, Pennsylvania, as the two neighbours passed. Kirchner stopped, and the two men made eye contact.

Then, Kirchner raised his arm. He pointed a finger like a gun, "made a recoil motion as if to suggest he had shot him," as the Pennsylvania Superior Court described it - and ended up charged with criminal disorderly conduct as a result.

Now, after fighting the case for more than a year, a Pennsylvania state appeals court has upheld Kirchner's conviction on the misdemeanour offence, ruling this week that the 64-year-old's finger gun-pointing "served no legitimate purpose, and recklessly risked provoking a dangerous altercation. "

"We conclude that there was sufficient evidence that Kirchner's act of mimicking his shooting Mr Klingseisen created a hazardous condition," Judge Maria McLaughlin wrote in the Tuesday opinion.

Kirchner argued his actions were so minimal that they shouldn't even be considered criminal. A mere hand gesture - "albeit in the rough form of a gun" - couldn't possibly arise to the standard of disorderly conduct, he argued, and he had no intent to cause "public alarm" or create "hazardous conditions."

But it's not uncommon for people to be arrested for making the gesture, or for schoolchildren to be disciplined for pointing finger-guns at other kids and saying, "Pow," in class, especially in the wakes of school shootings.

Finger guns might be as harmless as a corny way to say hello or to shoot some imaginary thing, but in the eyes of police or school administrators, if a person on the receiving end of the pretend-gun feels threatened, it's criminal behaviour or grounds for suspension.

Take it from the Pennsylvania Superior Court: Kirchner may not have intended to cause public alarm, but nevertheless, he did - because a woman called 911 on him, the court reasoned.

The June 7, 2018, incident was captured on surveillance video, which Mr Klingseisen had installed at his home "due to ongoing confrontations between him and Ms Natore," the court said. It's unclear what led to the rocky relationship or "no contact" order.

Still, it wasn't easy for the woman to avoid Mr Klingseisen's house. The alleyway Ms Natore and Kirchner were walking through passes by his home on the way to where she lives.

Kirchner, wearing basketball shorts and flip-flops, said that when he stopped, Mr Klingseisen flipped him the bird - "with both hands," he testified.

So Kirchner simply returned the gesture. Walking away, he seemed to be smiling, at least according to the grainy surveillance.

Stephen Kirchner lost his year-long appeal battle to get his conviction for the gesture dropped (WGAL)

But to Yvonne Rodriguez it wasn't funny. Ms Rodriguez saw the exchange from her front porch and felt "insecure," deciding to call police, she would later testify. Mr Klingseisen also said that Kirchner's gun-like hand gesture made him feel "extremely threatened," according to testimony.

"Kirchner acted with a reckless disregard of creating a risk of public alarm, as evidenced by the fact that an eyewitness on a neighbouring property contacted 911 because Kirchner's actions caused her to feel insecure," the court wrote.

This isn't the first time a court has been asked to make a ruling on the issue when finger-gun-pointers have challenged their convictions.

In 2017, a Florida court ruled that pointing a finger gun at an off-duty cop was not protected First Amendment speech. The ex-con who got arrested for disorderly conduct over the gesture had told the officer, "Officer Hernandez, I got you now!"

"As almost everyone who was ever a child can testify, no one has ever been killed or injured by forming fingers into the shape of a gun and dropping the hammer [thumb]," assistant public defender Paul Nuñez wrote in a motion asking the court to declare the disorderly conduct law unconstitutional, the Miami Herald reported. "There is no objective true threat here from that gesture."

But, again, the court found the cop felt threatened and feared for her life. Therefore, it was a "true threat" - a crime.

In other finger-gun cases, in May, a homeless man in Palm Beach, Florida, was arrested for making finger guns at passersby and mouthing the word, "Boom." The Palm Beach Daily News reports he had been previously warned that "his actions were scaring people."

In a case of road rage last year, a 58-year-old Ohio man was arrested on an aggravated menacing charge for allegedly making a finger gun at the driver in front of him, causing the man to fear he would be shot, the Mansfield News Journal reported.

In 2013, in the aftermath of the Sandy Hook shooting, play-fighting between kids at school, using imaginary guns and crossbows, was seen by school administrators as misbehaviour.

In one case in Virginia, an 8-year-old boy pointed a finger-gun at his friend in the hallway and was suspended for "threatening to harm himself or others."

The next year, the same thing happened to a 10-year-old boy in an Ohio school after he pointed a finger-gun at his friend's head and said, "boom."

"How much of a threat can it really be for a 10-year-old to hold up his fingers?" the boy's father told CNN. "I would like for somebody to explain this to me because apparently I don't get it. This is way over the boundary."

For Kirchner, the punishment for his disorderly conduct conviction was a $100 fine plus court costs, WGAL reported. His attorney told AP they did not plan to appeal after the Tuesday ruling.

The Washington Post