North Carolina Supreme Court Overturns Awful Decision By Appeals Court, Says Giving The Finger To Cops Isn't A Crime

from the possibly-unwise-but-not-illegal dept

Last August, the North Carolina Court of Appeals decided it was OK for police officers to use protected speech as the basis for retaliatory stops. The stop -- and the criminal charges that followed -- originated from this interaction:

While assisting the stranded motorist, Trooper Stevens turned his attention to another car traveling on the roadway. Defendant, a passenger in a small white SUV, had his arm outside of the window and was making a back-and-forth waving motion with his hand. As Trooper Stevens turned to look towards the car, defendant’s gesture changed from a waving motion to a pumping up-and-down motion with his middle finger. Believing that defendant was committing the crime of disorderly conduct, Trooper Stevens got into his patrol car to pursue and stop the SUV.

The ensuing stop resulted in the defendant being charged with obstruction -- not because of his middle finger waving, but because he, at first, refused to present his ID to the trooper. He was never charged with the disorderly conduct the trooper felt was criminal enough to justify a stop.

Despite several other courts reaching the opposite conclusion -- that flipping the bird cannot form the basis for a lawful stop -- the NC Court of Appeals went in a different direction.

Here, without having to determine whether Defendant’s conduct of extending his middle finger, in itself, constituted a crime, we conclude that the trooper had reasonable suspicion to initiate the stop of Defendant. The trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles. A reasonable, objective officer having viewed Defendant’s behavior could believe that a crime had been or was in the process of being committed. For instance, the crime of disorderly conduct in North Carolina is committed where a person “makes or uses any . . . gesture . . . intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2) (2017). Defendant’s actions, both his waving and middle finger taken together, aimed at an unknown target could alert an objective officer to an impending breach of the peace.

And just like that, North Carolina law enforcement officers had permission to engage in retaliatory stops. This ruling was greeted with near-unanimous derision, given its hot take on the statute Trooper Stevens pulled out of his ass to justify his actions. At least one law prof speculated social media outrage had something to do with the court's decision to withdraw its opinion roughly two weeks after it had delivered it.

Whatever second thoughts the majority might have had about their conclusion, they weren't enough to overcome their first thoughts. A couple of days later, the court released an amended opinion that changed nothing but how loudly the table was being pounded. It doubled down on its bad legal rationale, claiming that the fact that the rude hand gesture continued after the car had passed the state trooper as the vehicle continued down the road changed it from protected speech (a middle finger extended to law enforcement) to a crime (a middle finger extended to no one in particular).

Unlike the circumstances in those other cases, where all that was involved was an individual expressing contempt to a law enforcement officer, here, it was not clear to the trooper to whom Defendant was continuously gesturing. Indeed, Defendant was well past the trooper when he changed his gesture to a pumping motion with his middle finger extended. While it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore may be constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating. Such continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of “disorderly conduct.”

The stupidity is finally over. The state's Supreme Court has reversed [PDF] the Appeals Court ruling, determining that an objectionable hand gesture alone cannot provide the basis for a traffic stop. (h/t Volokh Conspiracy)

We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct. The fact that Trooper Stevens was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. Likewise, the mere fact that defendant’s gesture changed from waving to “flipping the bird” is insufficient to conclude defendant’s conduct was likely to cause a breach of the peace. Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.

Thus, we conclude that it was error for the trial court to find that there was reasonable suspicion of disorderly conduct to justify the stop.

It also appears the government lost interest in defending the actions of Trooper Stevens. Its only argument was that the stop was justified under the community caretaking function, which the Appeals Court rejected in favor of the trooper's disorderly conduct theory. The Supreme Court notes it presented no arguments here at all, making it that much easier for it to overturn the lower court's decision.

In its brief here, the State acknowledges that its sole argument in the Court of Appeals involved the community caretaking exception, and that the court unanimously rejected that argument. In fact, the State agrees that the specific, articulable facts in the record do not establish reasonable suspicion of the crime of disorderly conduct.

That sends the decision back to the Appeals Court, which will have to send it back to the trial court to finally grant the suppression motion that triggered this unfortunate succession of bad decisions by North Carolina courts. Unfortunately, the Supreme Court doesn't go so far as to say giving cops the finger is always protected speech, but it does make it clear it's not a criminal act and, alone, cannot justify a stop.

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Filed Under: 1st amendment, free speech, giving the finger, north carolina, police, probable cause


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  1. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 13 May 2020 @ 4:46pm

    From the “close this shitty fucking website down” dept.

    link to this | view in thread ]

  2. icon
    Khym Chanur (profile), 13 May 2020 @ 5:01pm

    Re:

    ?????

    link to this | view in thread ]

  3. identicon
    Pixelation, 13 May 2020 @ 5:08pm

    I suppose trooper Stevens should give the judge the middle finger and see how it goes.

    link to this | view in thread ]

  4. icon
    Samuel Abram (profile), 13 May 2020 @ 6:06pm

    Re:

    link to this | view in thread ]

  5. icon
    Bergman (profile), 13 May 2020 @ 6:12pm

    Re:

    Inside the court room the judge is presiding over it would be contempt of court. Outside? Protected speech.

    But I bet he'd end up with a bench warrant for doing it outside the court house anyway.

    link to this | view in thread ]

  6. identicon
    Anonymous Coward, 13 May 2020 @ 7:21pm

    Re: Re:

    Two abuses do not make a right.

    link to this | view in thread ]

  7. identicon
    Anonymous Coward, 13 May 2020 @ 7:26pm

    Too bad it didn't get into the demand for identification without a valid crime or traffic violation. Hell, NC isn't even a stop-and-identify state.

    link to this | view in thread ]

  8. identicon
    David, 14 May 2020 @ 2:55am

    Overbroad conclusion

    North Carolina Supreme Court Overturns Awful Decision By Appeals Court, Says Giving The Finger To Cops Isn't A Crime

    I think it still depends on whose finger one gives to cops.

    link to this | view in thread ]

  9. icon
    Scary Devil Monastery (profile), 14 May 2020 @ 3:15am

    Re:

    "Hell, NC isn't even a stop-and-identify state."

    From the NC Police Departments; "Hey, NYC's stop & frisk looks like a Great Idea. Let's try it!"

    Court, appellate court, state court; "...well, being soft on crime isn't getting us re-elected..."

    State Supreme Court; "...did any of you jokers even read a book of law? What the actual fsck?"

    link to this | view in thread ]

  10. identicon
    Bobvious, 14 May 2020 @ 5:40am

    Re: Overbroad conclusion

    I think it still depends on whose finger one gives to cops.

    "Come up to the lab, and see what's on the slab"

    link to this | view in thread ]

  11. identicon
    Anonymous Coward, 14 May 2020 @ 6:57am

    NC = Mecca for West Virginians

    link to this | view in thread ]

  12. identicon
    Anonymous Coward, 14 May 2020 @ 8:45am

    Giving the Finger to Cops Isn't a Crime

    Even if it's someone else's finger that you appropriated for the purpose?

    link to this | view in thread ]

  13. identicon
    Anonymous Coward, 15 May 2020 @ 9:24am

    That sends the decision back to the Appeals Court, which will have to send it back to the trial court to finally grant the suppression motion that triggered this unfortunate succession of bad decisions by North Carolina courts.

    ...by which time the victims of this abuse of office will be bankrupted in legal fees before any justice is done. Business as usual, move along, nothing to see here.

    link to this | view in thread ]


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