The Finger | Criminal Podcast | Forensic Files

Robert Ekas: 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. Phoebe Judge: Why did you give him the finger? Was he doing anything? Robert Ekas: He was driving a cop car.
Phoebe Judge: That was it. [Laughs.] Robert Ekas: Yeah, that was it. Yeah. Phoebe Judge: This is Robert Ekas. He's a 52-year-old white man, a retired cyber security
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. Robert Ekas: And I told my son, I said, "Well,
it looks like we got a trailer." [Laughs.] 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, but my vehicle had a sunroof,
so I opened the sun roof 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, 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. Phoebe Judge: You'd think at this point,
Robert might've 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? Robert Ekas: Yes, I did.
Phoebe Judge: I bet that doesn't happen so much. Robert Ekas: No. [Laughs.] He didn't
really know how to take that. Phoebe Judge: 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. Robert Ekas: And I told him, "Your supervisor is en route, I'll speak to him. In the meantime,
I will sit here at my vehicle and wait." Phoebe Judge: How old is your son? Robert Ekas: He was 12 at the time. Phoebe Judge: And was he just saying,
"Dad, please, please don't do this?" Robert Ekas: Pretty much. Yeah. [Phoebe laughs.]
This was a sort of stress he wasn't prepared for. Phoebe Judge: The supervisor showed 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 Ekas 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. [Plodding, mysterious piano and guitar music.] Robert Ekas:
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 know why more people don't do this.
Phoebe Judge: 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 pitcher for the Boston Beaneaters 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. Jerry Seinfeld: 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 mean... [Fades out.]
Robert Ekas: 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.
Or you can shake your hand around while you're doing it, and that's a little bit more aggressive,
and indicating that you're angry with them for some reason. Mine was dismissive slash...
What's the word I'm looking for here? Dissension, dismissive and dissension. There wasn't any anger in what I did. Phoebe Judge: 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. Robert Ekas: If you've ever been to traffic court,
you know that your likelihood of winning is somewhere between zero and zero. I mean,
almost nobody wins a traffic court case. Phoebe Judge: He not only cross-examined
the officer who pulled him over, but Robert also called his son, Brandon, as a witness. Robert Ekas: Who 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. Phoebe Judge: 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 his freedom
of speech, no matter where it was directed. Robert Ekas: 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
being sort of the cocky S.O.B. 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, "That's a win for the good guys. And in case you
were wondering, we're the good guys." [Laughs.] Phoebe Judge: 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? Robert Ekas: 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. Phoebe Judge: I wonder still, sometimes
when I... This doesn't happen much, but I think that someone's given me the finger before, and I
felt really bad about myself. And I've wondered, "Wait a second, what did I do? Why do they think
that about me?" Do you ever think about that? Robert Ekas: No. I mean, Christ, [Phoebe laughs]
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, that's the way you feel about it, pal, whatever."
Sometimes I know why he gave me the finger — I had inadvertently changed lanes in front of
him — or sometimes I don't. I have no idea why he's giving me the finger. But in all cases,
it's like, "Okay, whatever, I don't care." Phoebe Judge: 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, "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. Robert Ekas: We live 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 them the finger. I wouldn't do anything. Phoebe Judge: 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.
Robert Ekas: And I was like, "This is complete bullshit." 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." Phoebe Judge: In 2010, Robert filed a lawsuit
against Clackamas County for violating his right to free speech. His wife begged him not to.
Robert Ekas: You have to understand, I'm not an attorney. And I don't hold any degrees,
certificates, diplomas, or anything. I'm just 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. 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. Phoebe Judge: And so, what happened?
Robert Ekas: Well, they settled. Phoebe Judge: For money? Robert Ekas: Yeah. Phoebe Judge: How much?
Robert Ekas: $4,000. Phoebe Judge: The attorney for Clackamas County told the Oregonian, "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. Robert Ekas: If I give a police officer the
finger, or if anybody gives a police officer the 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. Phoebe Judge: They could give you the finger back. Robert Ekas: Sure. They could do that.
Phoebe Judge: Has anyone ever done that to you before? Robert Ekas: Yes. Phoebe Judge: I
kind of like that response the best. Robert Ekas: I laughed at him when he did it.
Traffic was kind of heavy, and I kind of rolled up along the side of him, rolled down my window,
and as I got up alongside 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." [Laughing.] I just laughed my ass off as I was driving away. The
funniest thing I ever saw. [Upbeat, hard-rock-style guitar music.] Phoebe Judge: When was the last time
you gave a cop the finger? Robert Ekas: A couple, few days ago, maybe. Phoebe Judge: [Laughs.] This is ongoing.
Robert Ekas: Yeah. I still do it. Well, I've been doing it since I was a child. Phoebe Judge:
So, this is like your own one-man protest? Robert Ekas: Well, no, it's just my inability
to shut up. It really boils down to that. Phoebe Judge: 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."
[Bouncy guitar and drum music.] Criminal is produced by Lauren Spohrer and me. Audio mix by Rob Byers. Special thanks to Alice Wilder, Henry Gargan, and Russ Henry.
Julienne Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com.
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People have been giving each other “the finger” since Ancient Greece. 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. http://www.wired.com/images_blogs/threatlevel/2010/03/middlefinger.pdf

Music in the episode: “Slow Strutt” by Blue Dot Sessions “Great is the Contessa” by Blue Dot Sessions “Mknt” by Blue Dot Sessions “Midnight Stone” by VYVCH “Radio Heart” by Marcos H. Bolanos “Big Because” by Minden

Criminal is a show about people who’ve done wrong, been wronged, or gotten caught somewhere in the middle. Hosted by Phoebe Judge. Part of the Vox Media Podcast Network.

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Episode 42 originally published 5/6/2016 https://thisiscriminal.com/episode-42-the-finger-5-6-2016

Brief Summary

Robert Ekas shares his experiences giving police the finger and discusses free speech rights and a lawsuit against law enforcement.

Key points

The Finger Incident. Robert Ekas recounts a bold act of defiance against a police officer while driving with his son.
Calling 911 on the Police. After being pulled over, Robert Ekas calls 911 to report the officer, leading to an unusual standoff.
Winning in Traffic Court. Robert Ekas successfully defends himself in traffic court, challenging the police's actions.
Settling for Free Speech. Robert Ekas files a lawsuit against Clackamas County for violating his free speech rights and wins a settlement.

Episode highlights

Episode quotes

I told my son, "Well, it looks like we got a trailer.".

Robert Ekas recounts the moment he noticed the police car following him.

WatchNov 18, 2022

Tension

60/ 100Some tension

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