Hey, SCOTUS says it’s OK so it must be OK. Via Greg Doucette comes another WTF decision[PDF] — one that gives North Carolina cops the green light to engage in retaliatory arrests over protected speech.
It’s not like there’s no case law to work with. The Eighth Circuit Appeals Court denied immunity to an officer who arrested someone for shouting “Fuck you!” at him as they drove by. Other federal courts have come to the same conclusion: flipping the bird/dropping f-bombs in the direction of police officers is protected speech and cannot form the basis for traffic stops or arrests.
In the state court of appeals, North Carolina judges have come to pretty much the same conclusion our nation’s top court did: so long as an officer can imagine a crime has been committed, they’re allowed to detain and arrest people who have offended them with their words and/or hand gestures.
And what a glorious hand gesture it must have been. Even the court’s dry recounting of the event manages to paint a vivid picture of the event that kicked off this debacle.
The trooper was assisting a stalled motorist on the side of U.S. Highway 52 in Albemarle County. While assisting the motorist, the trooper noticed a group of passing vehicles, including an SUV. The trooper observed Defendant stick his arm out of the passenger window of the SUV and make a hand-waving gesture in the trooper’s general direction. The trooper then observed Defendant change the gesture to an up-and-down pumping motion with his middle finger extended. The trooper was unsure at whom Defendant was gesturing. In any event, the trooper returned to his patrol car, pursued the SUV, and pulled the SUV over.
If the trooper initiated a pursuit over a hand gesture, chances are the trooper felt very strongly the Defendant was hand gesturing at him. After some back-and-forth and background checks, the trooper decided to arrest the passenger of the vehicle for resisting, delaying and/or obstructing a public officer during a traffic stop. That’s what the court records say. In reality, it was a “contempt of cop” arrest predicated by a contemptuous — but protected — hand gesture.
The court doesn’t even discuss the fact that the trooper’s stated reason for the arrest — the passenger’s refusal to provide ID to the trooper — isn’t even a criminal act. Vehicle passengers in North Carolina are under no obligation to provide ID during traffic stops.
[I]f you are operating a motor vehicle and are stopped by a police officer, you are required to produce your driver’s name/license/identification upon request. North Carolina General Statutes 20-90. Failure to do so is punished as a Class 2 misdemeanor, which carries a maximum penalty of up to 60 days in jail. Additionally, in some cases, if you do not produce identification, you may be charged with resisting an officer, which is a Class 2 misdemeanor, which carries a maximum penalty of up to 60 days in jail. This law applies to drivers of vehicles. It does not apply to passengers. Unless other circumstances exist, officers typically cannot require a passenger to produce identification during a traffic stop.
It doesn’t appear there were any “other circumstances” during this retaliatory stop.
The trooper approached the SUV and observed Defendant and his wife, who was in the driver’s seat, take out their cell phones to record the traffic stop. The trooper knocked on Defendant’s window, whereupon Defendant partially rolled it down. The trooper asked Defendant and his wife for their identification. Defendant and his wife, however, asked the trooper why they had been stopped and stated that the trooper had no right to stop them. Eventually, Defendant’s wife gave the trooper her license, but Defendant refused to comply.
The trooper requested that Defendant step out of the vehicle, and Defendant eventually stepped out onto the side of the road. The trooper then handcuffed Defendant and placed him into his patrol car. While in the patrol car, Defendant gave the officer his name. The trooper ran warrants checks and obtained no results for Defendant nor his wife. The trooper then issued Defendant a citation for resisting, delaying, and obstructing an officer and allowed Defendant and his wife to leave.
All of this is fine with the state appeals court, which overlooks the lack of a criminal act in favor of giving the state’s law enforcement an easier way to punish people for offending them. Reasonable suspicion — at least in this court’s hands — has nothing to do with reasonableness. If the word “reasonable” is supposed to be pronounced “idiotic,” then the following paragraph makes a lot more sense.
Here, without having to determine whether Defendant’s conduct of extending his middle finger, in itself, constituted a crime, we 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.
This is quite a judicial stretch. Anyone extending a middle finger at anyone/anything within eye-shot of a cop could be on the verge of “disturbing the peace” and should probably be arrested… before the peace is actually disturbed?
When the standard for “reasonable suspicion” is “literally anything,” litigants have almost zero chance of prevailing when suing over retaliatory arrests. At least the Supreme Court demanded the higher standard of “probable cause,” which isn’t quite as flexible as “reasonable suspicion.”
The court made this determination despite the state offering up an even stupider legal rationale to excuse this bullshit arrest. The court doesn’t like it, but the state isn’t the one appealing so its meritless argument ultimately has no effect on the outcome. But here it is, along with the court’s response:
We note that the State made no argument on appeal that the trooper’s stop was justified by the presence of “reasonable suspicion.” Specifically, in its brief and during oral argument, the State essentially contends only that the trooper’s traffic stop was justified under the “community caretaking” exception, which allows an officer to initiate a stop even without the presence of reasonable suspicion of criminal conduct. State v. Sawyers, ___ N.C. App. ___, ___,786 S.E.2d 753, 758 (2016). But it is hard for us to fathom why the trooper would have believed that Defendant and his wife were in need of care at the point that Defendant refused to provide his identification. Indeed, the middle finger is, universally, not a sign of distress. And even if there was some basis to make the initial stop based on some concern for Defendant’s or his wife’s safety, any such concern rapidly dissipated when the officer observed their filming and protesting the stop as he approached the SUV, well before he asked Defendant for his identification.
That’s stupid, but the court’s findings in this case aren’t that much smarter. There is a dissenting opinion, for what it’s worth. Judge Arrowood says there’s nothing reasonable about the court’s take on “reasonable suspicion.” Nothing about a drive-by bird flip adds up to a potential disturbing of the peace.
In the case sub judice, the adult defendant was in a moving car at midday, and there was no danger of a gathering crowd creating a public disturbance. 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.
[…]
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.
Too bad it’s just a dissent. The majority should have arrived at the same conclusion, rather than give officers another way to abuse the citizens they serve.
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Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at lmoransun@gmail.com and found on Twitter @lylemoran.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
