Let Your Fingers Fly—At Least in North Carolina

As we discussed last summer, the North Carolina Court of Appeals issued a surprising decision that there was probable cause to pull over a driver in North Carolina after he makes "an up-and-down pumping motion with his middle finger extended."  We thought the decision was wrong, and we praised the dissent by Judge Arrowood.

Justice has prevailed. The North Carolina Supreme Court overturned the decision on May 1, 2020.  The Court explained that there were not "facts known to Trooper Stevens which would lead a reasonable officer to suspect that defendant was engaged in disorderly conduct."  And further explained that "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."  A short, sweet, unanimous 7-page opinion that avoids any First Amendment issues in a footnote.

We still don't advise flipping off a police officer—but at least in North Carolina, it appears it is not grounds for a traffic stop.  For now…