North Carolina Appeals Court's Second Take On Retaliatory Arrests Just As Bad As Its First One

The North Carolina Appeals Court has revised its earlier decision finding that retaliatory arrests over free speech are a thing that is right and good and supported by case law.

A man flipped the bird at a state trooper while passing him as he performed a traffic stop. The trooper decided this needed further investigation and pursued the passing vehicle. After demanding the rude passenger's identification (and being rebuffed), the trooper arrested him on contempt of cop charges (obstructing a public officer).

The man sued. The appeals court reached the weird-as-fuck conclusion that the officer had probable cause to initiate a traffic stop because one man's extended middle finger could have conceivably resulted in an eventual disturbance of the peace.

The court had to do a lot of work on behalf of the state trooper to reach this conclusion as there were several logical and legal hurdles to jump. It released this opinion to universal derision. Seemingly chastened by the backlash (and a seething dissent), the appeals court hastily withdrew the decision.

Well, it's back now. And nothing has changed [PDF], outside of some additional text that pounds the table slightly harder during the court's re-assertion of its twisted take on free speech protections. (h/t T. Greg Doucette)

The court revamps the opening to quote from one of its own decisions -- one that decided to rewrite a state statute on the fly by determining that it may violate state law to refuse to identify yourself during a valid stop. This 2017 ruling expanded the law to cover stops instead of just arrests. It works out well for law enforcement, which now has the leverage to force anyone to ID themselves. Refusing to ID yourself is now an arrestable offense. And once you're under arrest, you're definitely obligated to cough up identification.

That's what the court hangs its new ruling on: that the arrest was due to the failure to identify, not in response to the extended middle finger. But it still has to find the stop valid. And so it does" because that's what it did last time. The court expands its rationalizing on behalf of the sued officer to ensure a future free of consequences for cops who engage in retaliatory stops/arrests.

We note that there are a number of court decisions from across the country holding that one cannot be held criminally liable for simply raising his middle finger at an officer. This gesture obviously directed at a police officer is simply an exercise of free speech and, therefore, by itself typically would not give rise to reasonable suspicion sufficient to justify a stop.

The key word is "obviously," according to the NC court. After quoting the Supreme Court's admonishment that law enforcement officers are "reasonably expected to exercise a higher degree of restraint than the average citizen" when faced with contemptuous words or hand gestures, the court decides no one needs to be held to a higher standard here.

Unlike the circumstances in those other cases, where all that was involved was an individual expressing contempt to a law enforcement officer, here, it was not clear to the trooper to whom Defendant was continuously gesturing. Indeed, Defendant was well past the trooper when he changed his gesture to a pumping motion with his middle finger extended. While it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore maybe constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating. Such continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of "disorderly conduct."

This doesn't sound like anything anyone who wants to be considered "reasonable" should claim they "suspected." Giving a cop the finger (or some sass, which I assume is a term used often in North Carolina) if there's anyone else in the conceivable vicinity is nothing more than issuing a fishing license to law enforcement officers.