Court upholds conviction of man who pointed "finger gun" at neighbor

By Caitlin O'Kane

/ CBS News

A Pennsylvania man broke the law when he pretended to point a gun at his neighbor, using his thumb and index finger to create the shape of the weapon, an appeals court has ruled. Stephen Kirchner was convicted of disorderly conduct last fall, but appealed the decision. This week an appeals court upheld his conviction, ruling that pointing a "finger gun" is in fact a criminal offense in this case.

The incident occurred in June 2018 and involved neighbors with a history of bad blood. When Kirchner and another neighbor, Elaine Natore, walked past Josh Klingseisen out mulching in his backyard, Kirchner made eye contact with Klingseisen, "then made a hand gesture at him imitating the firing and recoiling of a gun," according to court documents.

The gesture was caught on Klingseisen's surveillance cameras, which he had installed due to ongoing confrontations with Natore. At the time, Natore had a "no contact" order against Klingseisen.

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Klingseisen testified in a Lancaster County court that he felt "extremely threatened" when Kirchner made the gun gesture. Another neighbor who witnessed the gesture testified that she felt "insecure" after seeing it and called 911.

Kirchner admitted to making the gun gesture, but said he did so after Klingseisen "gave [him] the finger with both hands."

Kirchner was found guilty in October 2018 and ordered to pay a $100 fine and court costs.

Kirchner appealed the verdict, arguing that the evidence presented at trial was did not establish that making a hand gesture in the form of a gun creates a hazardous or physically offensive condition. Therefore, he argued, the evidence is insufficient to support the disorderly conduct charge. He also argued that his hand gesture could never be mistaken for an actual firearm, so it was no worse than any other hand gesture.

However, the Pennsylvania state appeals court ruled this week that "given the history of the parties involved," making the gesture did amount to disorderly conduct because it created a "hazardous condition … involving danger or risk," including "the risk of an altercation."

"Despite Natore's no-contact order against Klingseisen and the ongoing rift between them, Kirchner, while accompanying Natore, approached Klingseisen in his own backyard, created a gun-like hand gesture, pointed it at Klingseisen, and made a recoil motion as if to suggest he had shot him," the appeals court ruled. "This act served no legitimate purpose, and recklessly risked provoking a dangerous altercation."

First published on August 30, 2019 / 2:16 PM

© 2019 CBS Interactive Inc. All Rights Reserved.

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