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Waving middle finger justified traffic stop 

 

A North Carolina state trooper had the right to stop an SUV after he saw a passenger extending his middle finger out the window because the gesture could have been construed as disorderly conduct, a divided North Carolina Court of Appeals has ruled in an opinion substituted in place of an opinion that the court handed down in early August. 

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

The trooper pulled the SUV over. The passenger, Shawn Patrick Ellis, and the driver, his wife, began recording the stop and partially rolled down the window. The trooper asked the pair for their identifications. The wife gave the trooper hers, but Ellis refused. He eventually stepped out of the vehicle and the trooper issued Ellis a citation for resisting, delaying, and obstructing an officer. Ellis moved to suppress the trooper’s testimony and his request was denied. He then pleaded guilty to the charges. 

Ellis appealed, contending that the stop was unlawful because raising one’s middle finger at a trooper is not a crime because it is protected free speech. The Court of Appeals, in a 2-1 opinion issued Aug. 20 and written by Judge Chris Dillion, noted that there are a number of decisions from courts across the country holding that a person can’t be held criminally liable for simply raising his middle finger at an officer.

But that was not the issue at hand, Dillon wrote. Instead, the issue was whether the trooper had reason to believe that criminal activity may be occurring. The trooper saw Ellis make rude gestures while driving down the highway with other vehicles, and that was sufficient grounds to stop the vehicle because disorderly conduct includes any gesture “intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” 

Dillon concluded that the trooper was justified in detaining Ellis because Ellis refused to provide identification during a lawful stop, which is a crime.

It was not obvious to the trooper that Ellis was simply engaging in free speech toward him when he was gesturing out of his vehicle window, Dillion wrote, saying Ellis was charged and convicted for his failure to identify himself, not for the gestures.

“We do not reach whether defendant’s speech/conduct in extending a middle finger towards a trooper constitutes a crime,” he wrote. “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.”

Judge John Arrowood dissented, writing that there was no mention that the car was speeding, that the horn was being honked, or any other kind of “intensified activities.”

“Simply changing from a waving to an obscene gesture is not enough to support an objective conclusion that a public disturbance was imminent,” Arrowood wrote. “Extending one’s middle finger to a police officer from a moving vehicle, while tasteless and obscene is, in my opinion, protected speech under the First Amendment and therefore cannot give rise to a reasonable suspicion of disorderly conduct.”

The court originally issued the opinion on Aug. 6, then withdrew it on Aug.13 before publishing the new opinion on Aug. 20.

Assistant Appellate Defender Michele Goldman represented Ellis. 

“We intend to appeal, and I believe Judge Arrowood had the correct analysis in this case,” she said.

A spokesperson for the state Attorney General’s Office said the office is reviewing the case. 

The 22-page opinion is State v. Ellis (Lawyers Weekly No. 011-219-19.) The full text of the opinion can be found at nclawyersweekly.com

 Follow Bill Cresenzo on Twitter @bcresenzonclw


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