I’m Well-Versed in Bird Law.

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Whether for work or vacation, many of us have traveled to and from North Carolina.  Some of us have seen or interacted with the state’s law enforcement officials.  I had my own interaction once; the officer and I were very cordial to one another, and the speeding ticket he issued was deserved.  But others take a different approach to dealing with North Carolina law enforcement.

The North Carolina Court of Appeals issued a ruling on August 6, 2019, in North Carolina v. Ellis, COA 18-817, which can be found here.  This non-EDVA case is too interesting to ignore.  It was an appeal from a conviction of Mr. Ellis for “resisting, delaying, and/or obstructing a public officer during a stop.”  Mr. Ellis’s criminal conduct was his refusal to provide identification to the officer and his refusal to exit the vehicle when requested.  The subject of the appeal, however, was what Mr. Ellis did before the traffic stop.

In the Court’s words, while a State trooper was assisting a motorist on the side of the highway, the trooper observed Mr. Ellis “make a hand-waving gesture in the trooper’s general direction.”  But then Mr. Ellis changed the gesture to “an up-and-down pumping motion with his middle finger extended.”  The dissent’s description is far more colorful, explaining that Mr. Ellis was “shooting him the bird.”

Both the dissent and the Court’s opinion agree on one key point: it is probably not illegal to “flip off” a law enforcement officer.  As the rap group N.W.A. would tell you, you have a First Amendment right to direct obscenities towards the police.  That said, I would not advise it, as Mr. Ellis’s case suggests.

The issue before the Court was whether Mr. Ellis’s gesture created reasonable suspicion of a crime sufficient to justify an officer instigating a traffic stop.  I cannot give much more insight into the Court’s thought process, so I’ll leave you with its reasoning:

[W]e 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. Again, the reasonable suspicion standard may be satisfied even if the trooper did not witness an actual crime but only enough to infer a need to investigate further.

The dissent by Judge Arrowood better captures my view of the issue.  As it explains:

There is also no testimony or indication that anyone other than the trooper, the person to whom the obscene gesture was directed, saw it. There was also no indication that the vehicle was creating any danger to other motorists on the road. Even viewing the evidence in a light most favorable to the State, what we have here is a passenger in a vehicle making an uncalled-for obscene gesture. While defendant’s actions were distasteful, they were, in my opinion, within the realm of protected speech under the First Amendment of the United States Constitution. Given that this was protected speech, I believe that the stop was not supported under the reasonable suspicion test of the Fourth Amendment. I do not believe that this action was sufficient to justify the trooper in becoming alert “to a potential, future breach of the peace,” because he did not see any evidence of aggressive driving or other interactions between the vehicles on the road that would suggest road rage. If that was truly his concern he could have followed the vehicle further to see if there was evidence of some road rage toward other vehicles. He did not do so, nor did he testify that he saw any improper driving. He chose not to take any actions to determine if road rage was occurring. 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.

Whatever your view of the issue, I think we can all agree that Mr. Ellis can appropriately sing loudly out his window next time he drives down the highway the great Clash lyrics “I fought the law, and the law won.”  But I’d suggest he keep his hands inside the car and out of view while he’s singing.

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