Criminal - The Finger

Episode Date: May 6, 2016

People have been giving each other "the finger" since Ancient Greece. The first documented use is said to be a photograph from 1886 in which the pitcher for the Boston Beaneaters extends his middle finger to the camera (ostensibly to the rival New York Giants). Even though it's been around for so long, many still find the gesture offensive enough to try to bring criminal charges. Courts have ruled that "flipping the bird" is a form of speech protected by the First Amendment. It's not a crime to be obnoxious. But there's a man in Oregon named Robert Ekas who tests the limits of free speech by giving the finger to every police officer that he sees. To learn more about the legalities of the middle finger, you might enjoy: "Digitus Impudicus: The Middle Finger and the Law" from the UC Davis Law Review.  Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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worth your attention, and they call these series essentials. This month, they recommend Wondery's Ghost Story, a seven-part series that follows journalist Tristan Redman as he tries to get to the bottom of a ghostly presence in his childhood home. His investigation takes him on a journey

involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts. So I was driving with my son, and there was a police officer who was traveling the opposite direction as us on the Clackamas Highway,

but he was stopped in the left turn signal, and he was going to be turning left. And so as I saw his patrol car, I rolled down the window of my vehicle and I just stuck my hand out there and gave him the finger and sped off down the on-ramp. Why did you give him the finger? That he was doing anything? He was driving a cop car. Who's it? That was it.

This is Robert Ekus. He's a 52-year-old white man, a retired cybersecurity analyst. He's talking about a day in 2007 when he was out with his son in Clackamas County, Oregon. I'll admit, I give people the finger sometimes. But I don't want them to see me doing it. I'd actually prefer they didn't. It's best to do it when you're on the phone. But Robert wanted to make a point, and he made that point very clear.

Before he knew it, the police car was following him. And I told my son, I said, looks like we got a trailer. And he immediately spins around and looks and sees the cop car, who pretty much drafted my ass like it was NASCAR. And I thought that was an aggressive sort of posture. He hadn't lit up his lights yet. My vehicle had a sunroof, so I opened the sunroof and stuck my right hand out the sunroof and gave him the finger again. And he made a high-speed lane change and sped up and went parallel to my vehicle.

And I continued to give him the finger, you know, up yours, pal. I'm not going to be intimidated by you. You can shove it. And so I turned right, and as soon as I turned off the main thoroughfare, he lit up his overhead lights and pulled me over. You'd think at this point Robert might have backed off a bit. But instead, he rolled his windows all the way up, locked the doors, and then he called 911. So you called 911 on the cops? Mm-hmm. Yes, I did. I bet that doesn't happen so much. No, they didn't really know how to take that.

He told the dispatcher that he'd been unlawfully pulled over and that they needed to send a supervisor to the scene. He refused to talk to the officer who pulled him over and who was now standing outside Robert's car, trying to speak with him through a crack in the sunroof. And I told him, your supervisor's en route. I'll speak to him. In the meantime, I will sit here in my vehicle and wait.

How old is your son? He was 12 at the time. And was he just saying, Dad, please, please don't do this? Pretty much, yeah. Yeah, he, uh, this was a sort of stress he wasn't prepared for. The supervisor showed up, and after an hour and a half of discussion, Robert ended up with two tickets. One for having a tinted cover over his license plate, and another for changing lanes without using his blinker. As you've likely figured out, Robert Ekus has a problem with the police.

Not with the individual cops themselves, so much as the institution as a whole. And he protests every chance he gets, always in the exact same way, with his middle finger. I'm Phoebe Judge. This is Criminal. This isn't the first time I've done this. It's not even the hundredth time I've done this. It's just something that I do because I have a generally contemptuous attitude towards law enforcement and the officials who prop up the institutions of our government and that is

a really long political discussion but I honestly don't want don't know why more people don't do this we've been giving each other the finger since ancient Greece the first documented use of it in the u.s. was in 1886 when a picture for the Boston Bean Eaters was photographed giving it to the New York Giants. It's kind of amazing that it's held the same meaning for more than 2,000 years. It seems like such an arbitrary, ridiculous thing to just pick a finger and you show it to the person. It's a finger. What does it mean? Someone shows me one of their fingers,

and I'm supposed to feel bad. Is that the way it's supposed to work? I think it depends on how you give the finger. You can just hold your hand out there, flip them off, and that's sort of dismissive. Like, you're a jerk off, and here you go. you know, shake your hand around while you're doing it and that's a little bit more aggressive in indicating that you're angry with them for some reason. Mine was, you know, dismissive slash, what's the word I'm looking for here?

Dissension. Dismissive and dissension. There wasn't any anger in what I did. The middle finger has been at the heart of a surprising number of court cases. Prosecutors have argued that it's disorderly conduct or disturbing the peace, even an obscene gesture.

But consistently, courts have found that the finger makes a statement and is a form of speech protected by the First Amendment. Robert was prepared to defend his right to free speech, and he felt that the two tickets he'd gotten that day in 2007 were retaliatory and had nothing to do with the way he was driving. He set out to prove it in traffic court. If you've ever been to traffic court, you know that your likelihood of winning is somewhere between zero and zero, you know. I mean,

almost nobody wins a traffic court case. He not only cross-examined the officer who pulled him over, but Robert also called his son Brandon as a witness. He said, yes, my father did in fact use his turn indicator. And I showed the judge the license plate cover and pointed out the exception in the law and asked for a dismissal. He cited a 1995 appellate court decision in Arizona in which a man had been arrested for screaming criticisms of the police at the police. The appellate court ruled that the man was allowed to exercise screaming criticisms of the police at the police. The appellate court ruled that the man was allowed to exercise his freedom of speech, no matter where it was directed. If, for example, the sole reason that a police officer initiates pursuit of a citizen is because of his taking umbrage to protected speech, then said pursuit is illegal and anything found

in the process of that pursuit is inadmissible. And so based on that, I basically told the judge he had no business following me anyway. And even if I didn't use my turn indicator, he shouldn't have been there in the first place. So the judge acquitted me on that charge. He actually acquitted me on both. He didn't dismiss like I asked. And, you know, being sort of the cocky SOB that I am, there were two sheriffs standing in the lobby, and I just couldn't help myself. So I said to them, I said, you know, that's a win for the good guys. And in case you were wondering, we're the good guys.

We made several calls to the Clackamas County Sheriff's Office, but they declined to comment. I wonder, do you see yourself as a bully? No, I don't think so. I really dislike bullies. And if I had to consider myself a bully, I'm not quite sure how I would reconcile that. But I wonder still, sometimes when I... This hasn't happened much, but I think that someone's given me the finger before and I felt really bad about myself.

And I've wondered, you know, wait a second, what did I do? Why do they think that about me? Do you ever think about that? No, I mean, Christ, I, uh, I've been given the finger so many times I can't even count. And usually what I do is shrug my shoulders and go, okay. I mean, you know, that's the way you feel about it, pal. Whatever. You know, sometimes I know why he gave me the finger. You know, I inadvertently, you know, change lanes in front of him or, or, and sometimes I don't.

I have no idea why he's given me the finger. But in all cases, it's like, OK, whatever. I don't care. State and federal courts are divided on the extent to which officers should be required to tolerate insults. The U.S. Court of Appeals for the Second Circuit held that critical speech is protected unless it rises above, quote, inconvenience, annoyance, or unrest. Some have argued that police officers have a duty to shrug off insults. They are trained not to react to provocation. On the other hand, when faced with a middle finger case,

a judge in Pennsylvania stated, we think it contrary to public policy to send out a signal to the general public that policemen are fair game for any amount of verbal abuse some may choose to heap upon them. And a judge in North Dakota said, we don't pay police officers enough to expect them to quash the same human reactions other people have. But for Robert, there's only one kind of police officer exempt from his finger. We lived near a high school. And if I saw a police officer writing somebody a ticket for speeding in the school zone, they were hands off. I wouldn't say anything out the window or I wouldn't give him the finger.

I wouldn't do anything. But pretty much every other time, his window goes down and his finger goes up. He was pulled over for it again. And this time, the officer claimed it was because the tint on his car windows was too dark. And I was like, this is complete bullshit. You know, it doesn't make any difference whether my behavior is mature or immature or kind or unkind. It's still my right to do it. And I hadn't actually made a firm decision to sue, but I knew I had the option. And when it came right down to it, as the statute of limitations was expiring, I decided, no, I'm not letting that slide. In 2010, Robert filed a lawsuit against Clackamas County for violating his right to free speech.

His wife begged him not to. You have to understand, I'm not an attorney. And, you know, I don't hold any degrees, certificates, diplomas, or anything. I'm just, you know, a regular guy like everybody else who works for a living. And so this is a fairly daunting prospect for me. I mean, there was a lot of reasons for me to say, screw it, you know, I mean, really, I mean, I won the traffic court thing. Isn't that enough? But I decided to take it on and I started to do some research and I discovered that, yeah, I think I can win this. So I went ahead and wrote the complaint and filed it with the federal district of Oregon, and the rest is history.

And so what happened? Well, they settled. For money? Yeah. How much? $4,000. The attorney for Clackamas County told the Oregonian, quote, We made a business decision. It was cheaper to settle the case than to proceed with litigation.

And Robert's not the only person to have received money. Other people have gotten a lot more of it. In 2011, a man in New York was jailed for giving a cop the finger and got $20,000. And a guy in Pittsburgh got $50,000. If I give a police officer the finger, or if anybody gives a police officer a finger, the police officer has a number of choices of response. They can wave. Hi.

They can give you a look of disgust that can only be interpreted as, I don't really care what you think. They can do nothing. Or they could pull you over. But the choice is theirs. They could give you the finger back. Sure. They could do that. Has anyone ever done that to you before?

Yes. I kind of like that response the best. I laughed at him when he did it. Traffic was kind of heavy. And I kind of rolled up alongside of him, rolled down my window. And as I got up alongside of him, I said, hey. And he turned and looked at me, and I gave him the finger. And he threw his car into gear and sped up to catch me

and gives me the finger back and says, same to you, buddy. And I just laughed my ass off as I was driving away. The funniest thing I ever saw. When was the last time you gave a cop a finger? A couple few days ago, maybe. This is ongoing. Yeah, I still do it. Well, I've been doing it since I was a child. So this is like your own one-man protest.

Well, no, it's just, it's my inability to shut up. It really boils down to that. We spoke to Robert again a couple of weeks after the interview, and he said he'd been thinking about why I asked if he was a bully. He wanted us to know that he's really not. He said, I know I'm a man full of idiosyncrasies, but unpopular speech is the most important kind there is. Criminal is produced by Lauren Spohr and me. Audio mix by Rob Byers. Special thanks to Alice Wilder, Henry Gargan, and Russ Henry. Julianne Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com.

Criminal is recorded in the studios of North Carolina Public Radio, WUNC. for each episode of Criminal. You can see them at thisiscriminal.com. Criminal is recorded in the studios of North Carolina Public Radio, WUNC. We're a proud member of Radiotopia from PRX, a collective of the 13 best podcasts around. Shows like Mortified. The Mortified podcast features adults reading aloud the embarrassing things they wrote as kids,

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