Shooting an Officer the Bird

Editor’s note: The opinion analyzed in this post was withdrawn shortly after publication and replaced with this opinion reaching the same outcome.

Last week, in State v. Ellis, __ N.C. App. __, __ S.E.2d __, 2019 WL 3559644 (N.C. Ct. App. Aug. 6, 2019), a divided panel of the court of appeals held that a trooper properly stopped a vehicle “after witnessing . . . a passenger in [the] vehicle . . . extend his middle finger in the trooper’s general direction.” The majority acknowledged that “there are a number of decisions from courts across the country [holding] that one cannot be held criminally liable for simply raising his middle finger at an officer.” Yet it ruled that the defendant’s conduct provided reasonable suspicion of criminal activity, namely, disorderly conduct. See generally G.S. 14-288.4(a)(2) (making it unlawful to make a gesture “intended and plainly likely to provoke violent retaliation”). Let’s take a closer look at Ellis.

Facts. A trooper was assisting a stalled motorist on the side of a highway when an SUV passed by. The defendant stuck his arm out of the passenger window of the SUV, waved, and then shot the bird in the trooper’s direction, though the trooper testified that he “was unsure at whom Defendant was gesturing.” The trooper pursued the SUV and pulled it over. The defendant’s wife was driving, and she provided her ID to the trooper. The defendant refused to provide his, and the trooper cited him for resisting a public officer.

Reasonable suspicion? The defendant moved to suppress, arguing that the stop wasn’t supported by reasonable suspicion. The trial judge denied the motion, and a majority of a court of appeals panel likewise ruled that the stop was properly based on reasonable suspicion of disorderly conduct.

I’m skeptical. The state didn’t even try to argue that the stop was justified on that basis. It argued only that the stop was proper under the community caretaking doctrine, a contention that didn’t persuade any of the judges on the court of appeals. More importantly, as the majority acknowledged, there is a substantial amount of case law holding that flipping off an officer isn’t criminal. See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494 (6th Cir. 2019) (an officer stopped a motorist for speeding and ticketed her for a lesser offense; “[a]s she drove away . . . she made an all-too-familiar gesture . . . with her hand and without four of her fingers showing”; the officer stopped her a second time and upgraded the ticket; the motorist “did not break any laws that would justify the second stop and at most was exercising her free speech rights”); Swartz v. Insogna, 704 F.3d 105 (2d Cir. 2013) (“This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”); People v. Fassinger, 975 N.Y.S.2d 602 (City Court of Auburn 2013) (an officer had no basis for charging disorderly conduct where the defendant “displayed her two middle fingers to the officer” and then “grabbed her crotch and pulled up with her hand”; her gestures were “crude and disrespectful” but not likely to incite violence).

The majority points out that conduct that isn’t itself criminal may provide reasonable suspicion of criminal activity. Certainly, sometimes an investigation of ambiguous conduct unearths additional evidence of a crime. But what’s to investigate in a case like this one? The officer saw all the pertinent facts unfold before his eyes. Either shooting an officer the bird is a crime or it isn’t, and further investigation seems extremely unlikely to uncover new evidence to support or dispel the possible disorderly conduct charge.

In my quick research, I did find a few cases finding that it was proper to charge a person with disorderly conduct or a similar offense based in part on a display of the middle finger. But those cases typically involved shooting the bird plus taking other menacing actions. See, e.g., Credico v. West Goshen Police, 574 Fed. Appx. 126 (3d Cir. 2014) (officer had probable cause to cite the defendant for disorderly conduct where the defendant gave the officer “the middle finger with both hands,” said “fuck you, asshole,” and got very close to the officer while clenching his fists in an agitated manner; the defendant testified that he “purposely sets up officers by giving them the finger and cursing at them in order to provoke them into stopping him so he can sue them”); Favata v. Seidel, 511 Fed. Appx. 155 (3d Cir. 2013) (officer had probable cause to charge the defendant with disorderly conduct where the defendant engaged in aggressive driving, nearly causing a wreck, then flipped off an angry motorist and laughed at him). As far as I can tell from the Ellis opinion, nothing similar happened in that case — the defendant and his wife continued speeding down the highway.

Did the defendant resist? The defendant in Ellis pled guilty to resisting a public officer, and the appeal didn’t focus on the merits of that charge. But I have my doubts there too. Granted, he refused to produce his identification when the officer requested it. However, he wasn’t driving, so the requirement in G.S. 20-29 that an operator of a motor vehicle produce his or her license to an officer upon request didn’t apply to him. The court of appeals stated that his “refusal to provide identification during the lawful stop . . . is a crime,” citing State v. Friend, 237 N.C. App. 490 (2014). But Friend isn’t on all fours. The reason that the defendant in that case could properly be charged with R/D/O after refusing to produce his ID was because his refusal made it impossible for the officer to write him a citation that he was legally entitled to write. The defendant in Friend told the officer “that he did not have identification and refused to provide the information the officer needed” to complete the ticket. By contrast, in Ellis, if the trooper didn’t have probable cause to charge the defendant with a crime, there was no ticket to write, and the defendant’s refusal to produce his identification didn’t delay or obstruct the officer in the performance of his duties.

Conclusion. The fact that there was a dissent in the court of appeals means that the defendant is entitled to have the state supreme court review the suppression issue. So stay tuned. In the meantime, you can read up on the history of the one-finger salute, which dates all the way back to ancient Greece.