Flipping off a police officer—making an obscene gesture such as raising your middle finger—is often seen as provocative or disrespectful. But is it actually illegal in North Carolina? Recent court decisions provide a clear answer rooted in both state and federal constitutional law.
Flipping Off a Cop: Protected Speech Under the First Amendment
The act of giving a police officer the middle finger, while certainly rude, is generally considered a form of expressive conduct protected by the First Amendment. This protection has been recognized by courts across the country, including federal appellate courts, which have held that such gestures, though offensive, are a form of free speech.
The North Carolina Supreme Court’s Ruling
The most definitive answer for North Carolina comes from the 2020 case State v. Shawn Patrick Ellis. In this case, a passenger in a vehicle made a waving gesture out the window that turned into a pumping middle finger directed at a state trooper. The officer, believing this to be disorderly conduct, pulled the vehicle over and ultimately cited the passenger for resisting, delaying, or obstructing an officer after he refused to provide identification.
The case went all the way to the North Carolina Supreme Court, which ruled unanimously that simply flipping off a police officer does not provide reasonable suspicion to justify a traffic stop. The Court explained:
“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.”
The Court further emphasized that there were no specific or articulable facts suggesting the gesture was intended to provoke violence or constituted criminal behavior. Thus, the stop was deemed unconstitutional, and the evidence obtained as a result was suppressed.
Is It Ever a Crime to Flip Off a Cop?
- Disorderly Conduct: In North Carolina, disorderly conduct can include gestures “intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” However, the courts have made it clear that the mere act of flipping off an officer, without more, does not meet this standard.
- Resisting an Officer: If you are lawfully stopped (for a valid reason unrelated to your gesture) and then refuse to provide identification or comply with lawful orders, you could be charged with resisting, delaying, or obstructing an officer. But the stop itself must be lawful in the first place.
What About the Appeals Court Decision?
Before the Supreme Court’s ruling, the North Carolina Court of Appeals had found that flipping off an officer could be enough to justify a stop, reasoning it might signal impending disorderly conduct. However, this decision was overturned by the state Supreme Court, which clarified that such expressive conduct alone is not a crime and does not justify police intervention.
Practical Considerations
- Legal but Not Advisable: While it is legal, criminal defense attorneys generally advise against making obscene gestures at police. Doing so can attract negative attention and may escalate encounters unnecessarily, even if the gesture itself is not a crime.
- If Stopped: If you are stopped by police for any reason, refusing to provide identification can lead to charges if the stop is lawful. However, if the stop is based solely on your gesture, courts have ruled that any evidence or charges stemming from that stop may be invalid.
Flipping Off a Cop in North Carolina
| Action | Legal Status | Notes |
|---|---|---|
| Flipping off a cop (middle finger) | Legal | Protected by First Amendment; not grounds for a stop or arrest. |
| Disorderly conduct for gesture alone | Not a crime | Gesture alone is insufficient for disorderly conduct charge. |
| Refusing ID during valid stop | Illegal | Can lead to charges, but only if stop is lawful for other reasons. |
| Stop based solely on gesture | Unlawful | North Carolina Supreme Court says this violates constitutional rights. |
Flipping off a police officer in North Carolina is not illegal and is protected as free speech. Police cannot lawfully stop or arrest you solely for making this gesture. However, if you are stopped for another valid reason, you must comply with lawful orders, including providing identification if required. While legal, flipping off a cop is generally unwise and may escalate interactions with law enforcement
Sources:
- https://www.carolinaattorneys.com/blog/can-you-give-police-the-middle-finger/
- https://www.carolinaattorneys.com/blog/reasonable-suspicion-middle-finger-to-police/
- https://www.techdirt.com/2020/05/13/north-carolina-supreme-court-overturns-awful-decision-appeals-court-says-giving-finger-to-cops-isnt-crime/
- https://www.greensborocriminalattorneys.com/blog/2020/05/nc-supreme-court-no-reasonable-suspicion-to-stop-vehicle-where-passenger-flipped-off-police-officer/
- https://reason.com/2020/05/01/north-carolina-supreme-court-flipping-off-cop-did-not-justify-traffic-stop/
