Give ‘Em the Finger (And Risk Arrest?) – North Carolina Court Weighs In

Does “flipping the bird” at a North Carolina State Trooper qualify as disorderly conduct?

In a 2-1 decision in early August, a North Carolina appeals court ruled that it can.

A Middle Finger. A Traffic Stop. A Conviction.

In January 2017 a trooper was helping a stalled motorist on U.S. 52 in Stanley County when he noticed a group of vehicles, including an SUV, passing by on the highway. The trooper saw the passenger in the SUV wave in his direction, then pump his hand up and down with his middle finger extended.

The officer pulled the SUV over. The passenger was Shawn Patrick Ellis, and the driver of the vehicle was Ellis’ wife.  When the trooper arrived at the vehicle, the window was partially lowered and the two immediately began recording the officer and the incident. The officer asked for identification from the pair. The driver (Ellis’ wife) handed the officer her identification, but Ellis refused.

The trooper eventually issued Ellis a citation for resisting, delaying, and obstructing an officer. Ellis eventually pleaded guilty to the charges after his motion to suppress the officer’s testimony was denied.

Freedom of Speech vs. Disorderly Conduct

Ellis appealed the decision. He argued that the stop was unlawful because raising one’s middle finger at a trooper is not a crime and it is protected free speech.

Split Decision by the North Carolina Court of Appeals

A 2-1 opinion of a North Carolina Court of Appeals, written by Judge Chris Dillion and issued on August 20, noted there are several decisions from courts across the country stating that a person can not be held criminally liable for raising his middle finger at an officer.

However, Dillon also wrote that this was not the issue at hand.

Instead, the issue was whether the officer had reason to believe that criminal activity could be occurring.  The trooper saw Ellis making rude gestures with his hand while driving down the highway, and that was adequate grounds to stop the vehicle.

Disorderly conduct includes any gesture “intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.”

Judge Dillon concluded that the trooper was justified in detaining Ellis because Ellis would not provide identification during a legitimate stop, which is a crime.  Ellis was charged and convicted for failure to identify himself, not for his hand gesture.

Dillon explained, “We do not reach whether defendant’s speech/conduct in extending a middle finger towards a trooper constitutes a crime.  However, we hold that based on the totality of the circumstances as inferred from the trooper’s unchallenged testimony, the trooper had reasonable suspicion to initiate a stop of Defendant’s SUV.  The trooper was justified in further detaining Defendant when he failed to provide his identification during the stop.  As such, we conclude that the trial court did not err in denying Defendant’s motion to suppress.”

Dissenting Opinion

Appeals Court Judge John Arrowood disagreed. In his dissenting opinion, Arrowood noted that there was no mention of the SUV speeding, the horn being honked, or any other kind of “intensified activities.” He wrote that simply waving an obscene gesture is not enough to support an objective conclusion that a public disturbance was imminent.

Arrowood concluded, that while using the middle finger is a tasteless gesture, in his opinion, it is protected speech under the First Amendment and cannot by itself justify reasonable suspicion of disorderly conduct.

The court’s original opinion was issued August 6, then withdrawn on August 13 before publishing the new opinion on August 20.

Assistant Appellate Defender Michele Goldman, representing Ellis, says they intend to appeal, and she believes Judge Arrowood has the correct analysis in the case.

This issue may be decided later by the North Carolina Supreme Court.  Stay tuned.