Arguments about legal rights are best conducted in court, not at roadside
So there’s another notable arrest in the news, that of black woman Sandra Bland by white Texas patrol officer, and thus we have yet another “teachable moment” in non-compliance to lawful police orders. (Note that I address here only Bland’s arrest–I’ve no particular insight into her death three days later while in custody. Also, I limit my points to the issue of legality, as opposed to procedure or policy.)
Thanks to the officer’s dash-cam, almost all of the interaction between him and Bland is captured on video. If you haven’t seen it, here it is:
Now that is a free lesson in how not to act during a traffic stop if you don’t want to get yourself arrested.
As usual, there’s a considerable amount of outrage being expressed by people who possess a very limited practical and theoretical understanding of the laws and dynamics governing arrest.
First, there’s the stop. As discussed at length in the context of the Freddie Gray arrest, as well as the McKinney pool arrest, an officer requires some reasonable suspicion of unlawful conduct in order to stop someone.
In the case of Bland, the “reasonable suspicion” is actually a certainty–she committed a moving violation while driving, and never herself contests this violation. Thus there is no question that the officer had the authority to stop Bland. The relevant US Supreme Court decision on this issue is Terry v. Ohio, 392 U.S. 1 (US Supreme Court 1968).
Second, there’s the request (order?) for Bland to put out her cigarette and (after she refused to do so) order to her to step out of the vehicle. I’ve read many objections to both of these, including many claims that they were unlawful conduct by the officer.
Once the officer has made a lawful stop he is permitted to take whatever steps may be reasonably necessary to ensure the safety of himself, the suspect, and the general public while the stop is taking place. This includes asking the driver of a stopped vehicle to step out of the vehicle, and would even authorize the officer to handcuff the suspect during the duration of the stop. The relevant US Supreme Court decision on this issue is Pennsylvania v. Mimms, 434 U.S. 106 (US Supreme Court 1977).
The fact that officers making a traffic stop rarely take these additional cumbersome steps does not change the fact that they have the authority to do so.
In the case of the request (order?) that Bland extinguish her cigarette, the request (order?) was consistent with officer safety, as a lit cigarette is a potential weapon. (If you don’t believe me, go ahead and light one up and press it against your skin. If that’s an unattractive option, ask to see my cigarette burn scar should we ever meet up.)
In the case of asking Bland to exit the vehicle, that again was consistent with officer safety, and perfectly acceptable law enforcement doctrine, as it separates the suspect from any weapons they may have concealed in an immediately accessible place inside the vehicle. Indeed, the officer is also permitted to search those easily accessible areas of the car for a prospective weapon, with no requirement for a search warrant.
The moment Bland refused to comply with the officer’s lawful order to exit the vehicle, the officer had the legal authority to use reasonable force to compel her compliance.
In this case, the officer moved incrementally up the use-of-force continuum, consistent with the duration and intensity of Bland’s non-compliance, from simple verbal commands, to increasingly strident verbal commands, to warning of imminent non-deadly force, to threatening non-deadly force, to use of non-deadly force, to handcuffing and restraining the violently non-compliant suspect, and then (I’m speculating based on audio) using routine (albeit definitely painful) handcuff-control techniques on Bland as she continues to be non-compliant.
Bland, in turn, engages in explicitly criminal conduct in resisting the lawful arrest and committing a simple assault/battery on a law enforcement officer (e.g., kicking him).
It’s worth keeping in mind that at any instant the use of force against Bland would have discontinued had she simply complied with the officer’s lawful orders. However much force was used on her ,on these facts that’s on her. Once Bland became violently non-compliant there was no scenario under which she was simply going to be sent on about her day with a warning.
There has already been some learned pondering on when and whether various statements by a police officer constitute a mere request, a lawful order, or an unlawful order–one such I’ve seen is a very good blog post by law professor Orin Kerr over at the always excellent Volokh Conspiracy: The law of the Sandra Bland traffic stop.
The legal issues Professor Kerr explores are important ones, and he approaches them with a very high degree of insight and knowledge.
Nevertheless, as a simple practical matter such questions of law are best decided in a court room, after the stop is long over, not on the side of the road while the stop is taking place.
Few police are themselves lawyers, much less expert law professors steeped in Constitutional law and criminal procedure. Those they pull over are likely to know even less about the actual laws governing stops and arrests than does the officer, and in any case the officer did not pull them over to receive a law lecture from them.
If you find yourself struggling to choose whether to politely comply with an officer’s requests/orders at a traffic stop and perhaps pursue legal action afterwards on the one hand, or alternatively to be violently non-compliant with those requests/orders while the stop is taking place on the other, I humbly suggest that the former option will prove the less painful and disruptive.
Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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