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

from the doubling-down-on-stupidity dept

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.

Filed Under: 1st amendment, free speech, north carolina, police, retaliatory arrests


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  • identicon
    Anonymous Coward, 22 Aug 2019 @ 10:18am

    it makes me wonder what the hell is the point of having people judge anyone else when all they seem to want to do is make total fuck ups but always giving cops the right to do whatever the hell they like, regardless of the Constitution and of former precedents. why not simply throw the whole law/rule book out the window and let the world's privileged few have what they have been after for decades, enslavement of the planet's peoples and make as much money as possible, being allowed to get away with everything because they are then what they think they are anyway, 'untouchable'!

    reply to this | link to this | view in chronology ]

  • identicon
    David, 22 Aug 2019 @ 10:36am

    Ok, what we said was untenable, so let's double down

    The verdict was fishy before to the degree of stinking. This is beating a dead fish with chopsticks in the hope to turn it into a delicatesse.

    Time to send those judges back to law school. That sorry excuse for a verdict would not convince a kindergarten teacher.

    reply to this | link to this | view in chronology ]

    • icon
      Hugo S Cunningham (profile), 22 Aug 2019 @ 11:53am

      Re: Ok, what we said was untenable, so let's double down

      That sorry excuse for a verdict would not convince a kindergarten teacher.

      Actually, a kindergarten teacher might embrace the reasoning. You can't have five-year-olds giving their teacher the bird with impunity...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2019 @ 10:41am

    From the opinion:

    Because Defendant fundamentally mischaracterizes the basis for the stop, we disagree.

    ...So we'll mischaracterize the basis for the stop instead in a way that allows us to disagree!

    But really, it's the higher court decision that says not to consider the subjective reason for the stop that's a problem. That decision allows any contempt of cop stop as long as a BS justification can be thought of. "I wasn't sure if the middle finger was directed at someone else." - "It looked to me like his tail light was out." - "That white spot on his hood might be cocaine" - etc.

    reply to this | link to this | view in chronology ]

  • icon
    teknosapien (profile), 22 Aug 2019 @ 11:59am

    doesn't this just stomp on The 4Th Amendment

    The right of the people to be secure in their persons, houses,papers and effects, against unreasonable searches and seizures

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Aug 2019 @ 12:05pm

      Re: doesn't this just stomp on The 4Th Amendment

      Strike out people and replace it with government, and unreasonable with any, you have how it is being interpreted by the government.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Aug 2019 @ 12:17pm

      Re: doesn't this just stomp on The 4Th Amendment

      Well, the argument of the judges is that because the officer might have thought that the middle finger was directed at someone else and that could lead to an escalated situation and/or a crime, he was justified in stopping the car to make sure everything was ok. Therefore, the "seizure" of stopping the car was "reasonable."

      It's a giant load of horse-hocky, but there you go.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 22 Aug 2019 @ 1:03pm

        Re: Re: doesn't this just stomp on The 4Th Amendment

        Well, that seems a bit backward. "The right of the people to be secure in their persons, houses,papers and effects, against unreasonable searches and seizures, shall not be violated" does not state "unless there is a plausible mistake". There are no exceptions for retarded law enforcement personnel: such mental deficiencies might save the individual law officers from personal responsibility. It does not save the government from being responsible for the result and for making amends for violating the citicens' rights.

        Currently, the government is at an advantage by hiring extraordinarily stupid and reckless officers since "qualified immunity" protects not just the officers but the government from getting sued. I think that it is a mistake to extend that protection from the individuals to the institution.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 22 Aug 2019 @ 8:38pm

    'Look, we already determined that we were right...'

    Ah, talk about the sort of ruling you get when you've got a judge(or several) who have already determined that they are right, and will absolutely not change their mind on that.

    reply to this | link to this | view in chronology ]

  • icon
    cattress (profile), 22 Aug 2019 @ 10:12pm

    Oh I see now. A reasonable officer would be unfazed by someone briefly flashing their middle finger in a discreet manner. Just a little freedom of expression is all, and everyone knows cops have such thick skin. But when someone brazenly flashes their middle finger, waving it or otherwise emphasizing their provocative behavior, as this defendant did, no reasonable officer would think that such disrespect was aimed at him; obviously the defendant was provoking a fight with an unidentified driver, who, incidentally decided not to take the bait. Nonetheless, the defendant's actions were akin to yelling "fire" in a crowded theater, meant to disrupt and provoke the otherwise peaceful public. The officer was protecting the public from a violent incident of road rage the defendant was trying to bring on himself. There's no way anyone dislikes cops that much.
    /s

    reply to this | link to this | view in chronology ]

  • icon
    JdL (profile), 23 Aug 2019 @ 12:57am

    If the courts won't deal with out-of-control cops

    ... then it falls to we the people to do so.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Aug 2019 @ 8:27am

      Re: If the courts won't deal with out-of-control cops

      Oh yeah? You and whose army?

      reply to this | link to this | view in chronology ]

      • identicon
        David, 25 Aug 2019 @ 4:29am

        Re: Re: If the courts won't deal with out-of-control cops

        The U.S. army? Like Republican president Eisenhower sent the army South to desegregate the schools when Southern courts considered locking out blacks fine?

        How times change. Obama would not have dared such a step, Trump would not dream of interfering with racism.

        reply to this | link to this | view in chronology ]

  • icon
    dsdasa (profile), 27 Aug 2019 @ 5:31am

    https://www.amazon.com/dp/B07S2ZZMG8

    YWECAN Car Cup Holder Mount for iPhone Xs/XS Max/X/8/7 Plus & 7"-10.5" Tablets, Universal Car Cradles Adjustable Gooseneck for Apple iPhone iPad Pro Air Mini, Samsung Galaxy Tab

    reply to this | link to this | view in chronology ]


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