I was just…gestur’n…


On 9 January 2017, a day after Elvis’s Birthday (and my mom’s), a North Carolina State Trooper kindly responded to a stranded motorist who had run out of gas.  It was winter in Stanley County, North Carolina, and it was cold.  The Trooper, with the assistance of a local police officer, was rendering aid to the motorist on the side of the road when a SUV with two occupants passed them.  The passenger, Mr. Ellis, whose arm was waiving out the open window, modified his gesture when passing the officers, and began pumping his arm up and down with his middle finger raised. This is sometimes referred to as “flipping the bird.”  The Trooper noticed this particular bird and, believing he had observed the crime of disorderly conduct, got in his vehicle and pursued the SUV.  While in pursuit, the SUV made no observable traffic violations and was pulled over a short distance later.   

Mr. Ellis initially refused to provide his identification to the Trooper, but eventually did.  The Trooper charged Mr. Ellis with a citation of resisting, delaying and obstructing an officer under N.C.G.S. § 14-223.  At trial, Mr. Ellis moved to suppress the traffic stop as lacking reasonable suspicion and thus violative of his Fourth Amendment rights prohibiting unreasonable seizures. The trial court denied Mr. Ellis’s motion. On appeal from his conviction, the North Carolina Court of Appeals found there was reasonable suspicion that criminal activity was afoot, and the Trooper lawfully stopped Mr. Ellis.  However, one appellate judge dissented, and the matter was automatically reviewable by the North Carolina Supreme Court. 

  Before the North Carolina Supreme Court, the American Civil Liberties Union of North Carolina Legal Foundation filed a friend of the court brief on behalf of Mr. Ellis’s middle finger. The North Carolina Supreme Court FRIDAY reversed the matter, finding indeed that “flipping the bird” at law enforcement alone does not trigger reasonable suspicion you are engaged in a particular criminal activity. See State v. Ellis.  https://appellate.nccourts.org/opinions/?c=1&pdf=39340.  

The N.C. Supreme Court’s holding seems to assert that flipping a general bird, not necessarily directed at an individual or another driver, is not evidence of disorderly conduct where it was not likely to provoke a violent retaliation causing a breach of the peace.  I guess none of our justices drive the streets of my hometown, St. Louis. But there is precedent for this holding (though not cited by the Court). We can all (that is, men over 40) recall when Maverick made his inverted, mid-1980’s gesture of international communication to the Russians, which even then did not breach a fragile peace or cause violent retaliation (beyond the nuclear arms race).      

Tom Wilson