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Thursday, August 15, 2019

N.C. court recalls opinion on the bird (updated)

Earlier this month, the North Carolina Court of Appeals held that flipping-off a police officer provided probable cause to conduct a traffic stop; it was a "rude, distracting" gesture that could cause a reasonable officer to believe a crime was being committed, such as disorderly conduct. This opinion was inconsistent with federal courts that have held that it is clearly established that flipping the bird is protected by the First Amendment. I did not blog about the case, but I had some interesting email exchanges about the case, including how it interacted with last Term's Nieves v. Bartlett.

Today, the court of appeals withdrew the opinion, with the panel retaining jurisdiction to dispose of the case. No idea what that means. It could mean a majority will hold that the officer lacked probable cause to stop the case. Or it could mean a new opinion finding a basis for probable cause that does not involve constitutionally protected expression.

While this is good for the First Amendment, it is hard not to wonder how much the universal derision the opinion received on the interwebs affected the judges and their decision to reverse course (as to reasoning if not result). And it is hard not to think that this is not a good thing for the judicial process. There are processes in place for reconsidering a decision. Those processes should not involve Twitter.

Update: I was briefly Twitter-famous last week (despite not being on Twitter) when people found this post and criticized me for "bemoaning" the restoration of rights caused by Twitter saying mean things about the decision. Other then piled on to suggest I was trying to take away their right to criticize the government. And one commenter here--in a more-thoughful and less-character-constrained way--suggested that sometimes this is necessary, if imperfect, to snap courts out of the assumption that every case is the same and routine.

I see the latter point. But if rights can  (in a tweeter's view) be "restored" by Twitter pressure on a court, then rights can be taken away by Twitter pressure on a court. I cannot remember the judge or the case. But in 1995, a judge in the S.D.N.Y.  suppressed evidence in a criminal case, saying that a person running upon seeing a police officer does not give probable cause to stop, because people of color in New York have learned from experience not to trust the police and to avoid all interactions. The judge was lambasted and threatened with impeachment; he withdrew the opinion (not sure if it was in response to a motion to reconsider) and held the search was valid. Imagine the Twitter response, had it existed.

Posted by Howard Wasserman on August 15, 2019 at 01:11 PM in First Amendment, Howard Wasserman | Permalink

Comments

New opinion filed today, same result. https://appellate.nccourts.org/opinions/?c=2&pdf=37953

Posted by: scrivener16 | Aug 20, 2019 12:32:05 PM

"But in 1995, a judge in the S.D.N.Y. suppressed evidence in a criminal case, saying that a person running upon seeing a police officer does not give probable cause to stop, because people of color in New York have learned from experience not to trust the police and to avoid all interactions. The judge was lambasted and threatened with impeachment"

Interesting, because that's the entirety of the Freddie Gray case in Baltimore.

Posted by: Brian Kemp | Aug 20, 2019 11:16:21 AM

I'm conflicted on this. From my time clerking, there were definitely moments where I felt like certain forms of cases -- appeals from denied motions to suppress, immigration review, sentencing, to name a few -- were decided more or less on auto-pilot: of course the government wins. The reason is semi-understandable: in the vast majority of those appeals, the government should win. But it meant that judges kind of got into the habit of just assuming all the appeals were non-meritorious; they weren't necessarily paying attention to the sorts of features that would make for an exception, and the opinions more went through the motions of reasoning through the relevant legal issues while knowing the end result they'd arrive at than they actually resulted from blank slate deliberation. A strong public (or even twitter-law public) backlash is one way to snap them out of their reverie and signal that no, this case really is different.

Is that the ideal way to do it? No. But we live in an imperfect world.

Posted by: David Schraub | Aug 16, 2019 3:56:23 AM

A friend was recently (and is no longer, and was not involved in this case) a clerk on the NC Court of Appeals. The friend said that this happens more often than one would think, and that it typically comes after a motion for reconsideration.

Posted by: fc22 | Aug 15, 2019 4:29:35 PM

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