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In a constitutional Catch-22, a divided N.C. Court of Appeals panel agrees motorists have a First Amendment right to flip the bird, but contends traffic cops can detain you for it anyway.
Shawn Patrick Ellis’ conviction for resisting, delaying and obstructing a public officer will stand, for now, after appellate judges decided 2-1 this week that a state trooper acted lawfully when pursuing and stopping Ellis in Stanly County.
Ellis was a passenger in an SUV who waved “and then extend(ed) his middle finger in the trooper’s general direction,” Judge Chris Dillon wrote in the majority opinion. Moments later on the roadside, Ellis’ wife cooperated and handed over her driver’s license. Ellis initially refused to show his license or give his name. After he later complied, the trooper issued him a citation for his resistance. Ellis was not charged or cited for flashing the finger.
In Stanly County Superior Court, Ellis argued that the traffic stop was illegal because his rude gesture is protected speech under the First Amendment. Judge Karen Eady-Williams denied his motion to suppress evidence and he pleaded guilty to the resist, delay and obstruct charge.
On appeal, Dillon and Judge Wanda Bryant upheld Ellis’ conviction, while Judge John Arrowood dissented.
Writing for the majority, Dillon concluded the trooper was justified in stopping Ellis’ SUV under the reasonable suspicion standard, which “does not require that there be a preponderance of the evidence that a crime has even occurred.”
“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,” Dillon wrote, relying on North Carolina’s vague and likely unconstitutional disorderly conduct statute. That law suggests making obscene gestures itself is illegal. Federal courts say otherwise.
To his credit, Dillon cited a U.S. 2nd Circuit Court of Appeals case finding that flipping the bird on its own failed to provide reasonable suspicion to effect a traffic stop and quoted a 6th Circuit opinion affirming that “Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.” The majority undermined its own argument.
Arrowood’s six-page dissent gets to the heart of the matter. The trooper was retaliating, not investigating, by choosing to hassle a motorist whose rude hand gesture offended him.
“He chose not to take any actions to determine if road rage was occurring,” like following the vehicle without immediately pulling it over, Arrowood wrote. “Instead, he initiated an improper search and seizure to engage in an improper fishing expedition to find a crime with which to charge the defendant who had directed an obscene gesture to him moments earlier.”
The majority served up a convoluted stew of half-baked jurisprudence that tries to have it both ways. If giving the finger is legal, how can it constitute reasonable suspicion of a crime? That doesn’t pass the smell test.
The N.C. Supreme Court hears all appeals from divided appellate panels. We hope Ellis exercises his right of appeal to bring some clarity to this murky matter.
Giving the finger to anyone — officer or civilian — is inadvisable. We don’t condone the behavior, but to preserve the free speech rights others exercise for nobler purposes, it must remain legal. As H.L. Mencken wrote, “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”
If authorities can detain you for a sophomoric hand gesture, that makes it easier to punish those who criticize government officials in more thoughtful and articulate ways. What’s the substantive difference between flipping the bird and holding a protest sign?
For failing to uphold Ellis’ right to give the middle finger without retaliation, the majority on this Court of Appeals panel has earned a different disapproving gesture. We give this ruling a thumbs-down.