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Can You Get Arrested for Giving the Middle Finger to a Cop?

Traffic cop standing by sports car
By Christopher Coble, Esq. on August 14, 2019 12:00 PM

Yes, we all know the First Amendment protects freedom of speech. But most of us also know there are exceptions to that general rule. Yelling, "Fire!" in a crowded theater (when there isn't one) perhaps. Or limits on profanity or pornography, for instance. And many of us wouldn't think to "stick [our] arm out of the passenger window of [an] SUV and make a hand-waving gesture in [a] trooper's general direction ... [then] change the gesture to an up-and-down pumping motion with [our] middle finger extended."

But just because we might not do it ourselves, does that make it illegal? And if not, can you still get arrested for it?

Birds Flying By

The question isn't just a hypothetical for North Carolina man Shawn Ellis. According to his criminal appeal, Ellis was a passenger in a passing SUV who flipped the bird to a trooper assisting a stall motorist on the highway. The trooper observed the gesture, proceeded to pull the car over, and asked Ellis for ID. When Ellis refused, he was arrested and charged with resisting, delaying, and obstructing an officer. He challenged both the stop and the subsequent charge, but the North Carolina Court of Appeals ruled that both were OK.

The court quickly concedes the general proposition that a person cannot be held criminally liable for simply raising his middle finger at an officer. Judge Chris Dillon goes on to cite five cases from state and federal courts supporting that proposition. Charges have been dropped for giving the middle finger to cops, those who've been arrested charged have won civil settlements, and the U.S. Second Circuit Court of Appeals (which covers Connecticut, New York, and Vermont) has even said that flipping off the police doesn't warrant a traffic stop.

Still, the stop in this case was justified. Why?

Let Me Argue That for You

Apparently, it was the trooper's contention that he "was unsure at whom Defendant was gesturing":

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." 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."

That's a nice little piece of invention, especially given, as the court admits, "the State made no argument on appeal that the trooper's stop was justified by the presence of 'reasonable suspicion.'" Instead, the State contended the stop was permitted under the "community caretaking" exception, an argument the court conceded was "hard for us to fathom." So instead it came up with a justification on its own.

Got ID?

The court does point out that Ellis wasn't charged with any offense related to his middle finger: "Having concluded that the stop was justified, we further conclude that the trooper was justified in detaining Defendant further based on Defendant’s refusal to provide identification during the lawful stop, which is a crime." Ellis was charged with a North Carolina statute that prohibits "willfully and unlawfully resist[ing], delay[ing] or obstruct[ing] a public officer in discharging or attempting to discharge a duty of his office," and the court cites a case stating "the failure to provide information about one's identity during a lawful stop can constitute resistance, delay, or obstruction within the meaning of" the statute.

However, North Carolina's law requiring a someone in a car to provide identification only applies to the "person operating or in charge of a motor vehicle," i.e., drivers, and not to passengers.

So, where does that leave us? Flipping off the cops is protected by the First Amendment. But if you're in North Carolina, you might want to make sure the cops are clear that they are the ones (and not someone else) that you're flipping off. And have your ID ready.

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