NC Appeals Court Withdraws Its Horrendous, Free Speech-Damaging Opinion On Retaliatory Arrests

from the ctrl-z dept

Late last week, the North Carolina State Court of Appeals released an astounding decision. Ignoring a number of precedential rulings finding otherwise, the court decided it was okay for state law enforcement officers to engage in retaliatory arrests, so long as they could find something to charge a citizen with.

In this case, a car carrying a passenger who flipped the bird to a trooper engaged in a traffic stop was pulled over for… um… “disturbing the peace.” Apparently, all hell was on the verge of breaking loose due to the enthusiastic bird-flipping in the direction of the officer. By the time the stop was over, the passenger was arrested for obstructing an officer. This was because the passenger refused to ID himself, which isn’t actually a crime in North Carolina.

The court looked at this retaliatory traffic stop and eventual arrest and said, yeah, I guess it’s “reasonable” to assume a drive-by birding is a criminal act in the making, even if the supposed initiating factor (the finger) was protected expression.

The dissenting opinion was the only reasonable thing about the decision. It pointed out one person’s obscene gesture was highly unlikely to result in disturbed peace and that the traffic stop was nothing more than a fishing expedition to find something to charge the bird-flipping passenger with.

The dissent may soon become the official opinion of the court. Owen Barcala points out on Twitter that the Appeals Court has withdrawn the opinion. Here’s what’s up at the court’s website instead of its ridiculously harmful take on the First Amendment.

IT IS HEREBY ORDERED that the opinion filed in this case on 6 August 2019 be withdrawn. The Clerk of the Court of Appeals is hereby directed not to certify said opinion. This cause is retained by this Court for disposition by the panel to which it is assigned…

So, good news is on the way, as it seems unlikely the court will reissue a new opinion that comes to the same conclusion, but with different words.

There’s a theory out there that this opinion was ratioed to death by the universal scorn heaped on it by pretty much everybody, including actual lawyers with actual law degrees. Law prof Howard Wasserman thinks Twitter may have forced the court to reconsider its hot take on retaliatory arrests. His post on the swift withdrawal by the court suggests citizens should stay in their own lane and let the courts go about the business of reshaping the contours of the public’s interactions with law enforcement without any outside input.

Today, the court of appeals withdrew the opinion, with the panel retaining jurisdiction to dispose of the case. No idea what that means. It could mean a majority will hold that the officer lacked probable cause to stop the case. Or it could mean a new opinion finding a basis for probable cause that does not involve constitutionally protected expression.

While this is good for the First Amendment, it is hard not to wonder how much the universal derision the opinion received on the interwebs affected the judges and their decision to reverse course (as to reasoning if not result). And it is hard not to think that this is not a good thing for the judicial process. There are processes in place for reconsidering a decision. Those processes should not involve Twitter.

Great idea. Let’s just silo judges off from the public they serve. They should ignore all other input but their own to maximize their ability to act as a check against government overreach. This is a ridiculous take and hopefully Wasserman will follow it with a retraction of his own.

No one’s suggesting judges should issue Twitter polls before ruling, but they’re not incapable of making mistakes. When they do, they should feel the heat. If this nudges them towards reconsideration of a controversial ruling, we’re all going to be a bit better off.

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Comments on “NC Appeals Court Withdraws Its Horrendous, Free Speech-Damaging Opinion On Retaliatory Arrests”

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Anonymous Coward says:

I wonder if this happens because judges aren’t the ones writing the opinions. Instead that’s left to clerks with guidance by judges. Which means when they may not realize how bad it is until after they’ve signed it. It shouldn’t happen, but let’s face it, it probably does far more often than we like.

Samuel Abram (profile) says:


There’s a theory out there that this opinion was ratioed to death by the universal scorn heaped on it by pretty much everybody, including actual lawyers with actual law degrees.

It’s a “theory”, but not in the legal or scientific sense. Scientifically, it would be a hypothesis. The only way to see if it’s true is to put it to the test. I await to see facts instead of hypotheses.

Anonymous Coward says:

Re: “Theory”

Thankfully, this article doesn’t use "theory" in either the legal or scientific sense.

As in aside, it would have been much more reasonable to give the definition of theory in the legal sense, as that is at least slightly relevant to the topic at hand. The scientific definition has no relevance at all.

Anonymous Coward says:

Re: “Theory”

"Scientifically, it would be a hypothesis."

So many (usually non-scientists) recognize that the term "theory" is frequently misapplied by the non-scientific community. Often, and nearly as often as the term "theory," the term "hypothesis" is misapplied as the alternative to "theory." If using scientific standards, this is not even an hypothesis. The formalism of science places more rigor on the proper formulation of hypotheses. This case falls into the bucket labelled "mere conjecture."

If we limit the term to the common usages of the legal community, which is appropriate as implied by the article’s mention of lawyers and law degrees, this "theory" constitutes unfounded speculation.

Anonymous Coward says:

Law prof Howard Wasserman thinks Twitter may have forced the court to reconsider its hot take on retaliatory arrests.

I don’t see a problem with this. If the world told me I was wrong, that would cause me to at least consider the possibility.

it is hard not to think that this is not a good thing for the judicial process. There are processes in place for reconsidering a decision. Those processes should not involve Twitter.

Even in light of my first statement above, I also get where he’s coming from on this point. I cringe at the idea of justice being subject to the whim of the mob.

Anon says:


Oliver Wendell Holmes gave the middle finger to the First Amendment when he wrote that the law "does not allow one to yell ‘Fire!’ in a crowded theatre", thus justifying stripping citizenship and deporting people for the act of protesting the war (WWI). it took decades for precedent to overturn that and for common sense to prevail, although Holmes himself later said it was among his worst decisions. We need Twitter because it is better to wait days not decades to reverse a really, really bad decision.

Rick Mercer says:

Same Result, Different Tune

The horrendous free speech damaging opinion has been reissued with the primary change that I see being to change their logic. They took out the part about how it was clearly reasonable to expect a police officer to have a violent retaliatory response to being fingered, and instead are going with the cop not being sure the finger was meant for him so he was just investigating this guy to see if he was trying to instigate something with someone else.

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