The Law Of The Bird

The North Carolina Supreme Court has held that a car’s passenger who had rendered a double middle finger salute passing by an officer did not create a basis for the charge of “resisting, delaying, or obstructing” the officer and that the ensuing stop was improper.

Th salute came as the trooper was rendering aid to a stranded motorist after a snowstorm. 

The following facts can be inferred from Trooper Stevens’ testimony: defendant was waving from the passenger window of an SUV and, a few seconds later, began to gesture with his middle finger; Trooper Stevens did not know whether defendant’s gesture was directed at him or at another driver; and, after pursuing the vehicle for approximately half a mile, Trooper Stevens did not observe any traffic violations or other suspicious behavior.

We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct. The fact that Trooper Stevens was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. Likewise, the mere fact that defendant’s gesture changed from waving to “flipping the bird” is insufficient to conclude defendant’s conduct was likely to cause a breach of the peace. Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.

Thus, we conclude that it was error for the trial court to find that there was reasonable suspicion of disorderly conduct to justify the stop.

(Mike Frisch)