No Butts For Sandra Bland

Despite my extreme reluctance to delve into what I consider a sideshow to a very serious case, too much effort has been put into parsing it in extreme detail for me to ignore it.  The question of real importance is how and why Sandra Bland was found dead in a Waller County jail three days after a crap traffic stop, and instead, all eyes are focused on the stop instead of the death, which has been essentially forgotten.

Was it the cigarette?

From the transcript of the video of the stop, this is what happened:

Encinia: You mind putting out your cigarette, please? If you don’t mind?
Bland: I’m in my car, why do I have to put out my cigarette?
Encinia: Well you can step on out now.
Bland: I don’t have to step out of my car.
Encinia: Step out of the car.
Bland: Why am I …
Encinia: Step out of the car!

From Charles Blow to people on the twitters, they question whether Encinia’s asking Bland to put out her cigarette was a lawful order.  Belying the question is whether what followed, the order to step out of the car, and its ensuing force, was lawful.  Rarely do people focus so intently on such a tiny slice of a stop, but it’s happening here.

Orin Kerr does a very scholarly job of deconstructing this exchange:

First, the cigarette question is pretty easy. The officer says, “Do you mind putting out your cigarette, please? If you don’t mind.” That’s a request, not an order. There’s no law requiring you to go along with an officer’s “do you mind” requests. Bland was free to say no.

In the trenches, this cigarette question would likely not be nearly so easy. While it’s clearly framed as a request, rather than an order, there is a fairly obvious officer safety basis for doing so.  A person can easily flick a lit cigarette into an officer’s face.  The fact that Encinia was polite, it might be argued, did not alter his concern that he could be harmed by the cigarette.

But he didn’t command her to do so?  True, but police officer expect people to submit to their requests, so that they can afford to be courteous while simultaneously expecting compliance.  Do we not want them to be polite?  Should the officer be punished for showing courtesy? At the same time, is the officer not entitled to take reasonable actions to protect his safety from obvious potential risks?

So while Orin is technically correct, that having framed this as a request rather than a command, Bland was free to refuse without consequence, there is a good chance it wouldn’t play out so clearly in a courtroom, just as it didn’t on the street.

Whether it should or shouldn’t is a matter of perspective, cops will see this differently than lawprofs, perhaps. Where a judge will come out is harder to predict. But some will assuredly view her response to such a reasonable “request” as being needlessly belligerent to a polite officer.

Next, after Bland refuses to put out her cigarette, the officer says, “Well, you can step on out now.” Bland says that she doesn’t have to get out of the car, and the officer responds with a clear order: “Step out of the car,” which he then repeats a few times, getting louder and louder as Bland refuses and the exchange intensifies.

Did Bland have to comply with the order to get out of the car? Likely yes, but it’s a little complicated.

As Orin properly notes, the question appears settled by the Supreme Court’s decision in Pennsylvania v. Mimms.

It’s clear that the officer’s order was lawful under the Fourth Amendment. In Pennsylvania v. Mimms, the Supreme Court held that officers can always order a driver out of a car during a traffic stop…No cause or threat to the officer is required, and it doesn’t matter under the Fourth Amendment if the officer ordered Bland out of the car for a legitimate reason or not.

Also easy? Well, not so much from a theoretical view.

But there’s a complication. The order was lawful under the Fourth Amendment, but was it lawful under the First Amendment?

Maybe the officer ordered Bland out of the car for officer safety reasons (she wasn’t threatening him, but she was getting upset). Or maybe he did it for reasons of officer convenience (to smell less smoke). But watching the video, it’s also plausible that the officer ordered Bland out of the car just to retaliate against her for not being deferential to him. And that might mean that the order violates the First Amendment.

While the point, that Encinia can order Bland out of the car for any reason or no reason, provided it wasn’t an unconstitutional reason, is fascinating, the question unanswered is whether this position has any legs whatsoever in the courtroom.  Orin doubts it. I see no chance whatsoever of the position prevailing.

Regardless of the question of whether there is a law that would require Bland to not smoke during a traffic stop, or whether her response to Encinia’s request was deemed “contempt of cop,” there is command presence, a core component of officer safety.  Of course there is no law that says she can’t smoke, but there is no law that says officer safety trumps constitutional rights either.  And yet, caselaw is replete with it.

There are myriad arguments to be offered as to why the “request” was a command framed politely, why it was grounded in officer safety, why the response challenged the officer’s control over the situation on the street, why what followed fell well within the scope of deference to a police officer’s handling of an encounter.  And there are arguments against it, but as long as courts defer to cops on the street, they don’t stand a chance.

There is a fairly simple point that is far more valuable to remember when putting this encounter under a microscope to figure out how to survive a traffic stop.  If you want to get done as easily and painlessly as possible, be compliant up to the point of refusing consent to search, a line that should never be crossed.

If you want to use the stop as an opportunity to assert your constitutional rights — and don’t forget about your right to curse at police, as long as you’re going for broke — that’s your choice. But it is highly unlikely to get you back on the road swiftly and without risk of serious harm.

There is nothing wrong with exercising your constitutional rights, though whether they’re properly exercised is never as clear as people think, but as long as courts defer to officer safety, there will be a price to be paid. Was disagreeing over whether to snuff out a butt worth it for Sandra Bland? Choose wisely, as you life may depend on it.

 

22 thoughts on “No Butts For Sandra Bland

  1. Piedmont

    Unless a driver’s waving a lit cigarette at the cop, there’s no good reason to order her to put it out (and plenty of reason to let an agitated person have their comfort item). [This is the part where I wonder what would have happened if Ms. Bland had just gotten out of the car, as legally required and which may have de-escalated a situation that the cop seems to have created and escalated, and am told that I’m blaming the victim.]

    I wish that more people would realize that most rights can be waived, especially if you think you can get something out of it. You’re not less of a man/woman for not vociferously and zealously advocating for each one every time there’s a challenge.

    1. SHG Post author

      You ask the question backward, because of your perspective. The question should be why should people be put at risk for exercising their rights, behaving like a normal person who asks questions and expecting the officer to behave like a normal person who answers them without escalating the encounter into a life or death battle for control.

      That it is somehow the duty of the citizen to de-escalate rather than the officer is backward. But it’s also how it is, and courts have allowed and bolstered this. The choice ultimately is brutally pragmatic, but there shouldn’t have to be a choice at all.

      A cop isn’t less of a man or woman for not coercing people into submission by the use of force. It works both ways.

      The law is wrong. Police are wrong. People come first, not cops. But it does no one any good to die at the hands of a cop.

  2. Piedmont

    It’s not the duty of the citizen, but it’s the wise thing to do when confronted with an armed lunatic (cop or not). Ms. Bland did two (very minor) things that put her on the wrong side of the law. First, she committed a (ticky-tack) traffic infraction, which allowed the stop and detention. Second, she refused a lawful (if ticky-tack) order to get out of her car. The officer handled it extremely badly, and even if she’d just gotten off with a warning, I’d think the officer should be severely disciplined and probably fired. Maybe subject to a civil suit, too.

    I don’t think it’s wrong, or even unreasonable, to allow an officer to order a person to step out of their vehicle during a stop. It might even be best to have it be the standing policy that all drivers will step out of their vehicle. Officer safety is one of several concerns that are fair to consider (not just personally, but because incapacitating an officer legitimately enforcing the law job is an obstruction of justice), along with plenty of others including the rights of the citizen, in determining what’s allowable at a detention. It may be that society and technology will change this, just as the automobile exception to the requirement for a warrant is less justifiable now that we all have smartphones and iPads.

    I do think that there’s no reason that driver should be required to get rid of their cigarette unless they’re being dangerous with it.

    1. Clarence

      Sandra Bland did not put herself “on the wrong side of the law.”

      “I was getting out of your way, you were speeding up, tailing me so I moved over and you stopped me so yeah, I am a little irritated . . . ” (quote from video).

      Sandra Bland was pushed to “the wrong side of the law” – she did not put herself there. A police officer “speeding up, tailing” behind her (in a 20 mph zone) compels her to get out of the way and let him pass. And then . . . he didn’t pass.

      Since Scott acknowledges that the media simpletons will harp over shiny distractions, let me offer one that has been mostly ignored. Sandra Bland makes it clear in the above quote that she thought she should move over to let the police officer pass.

      There are two options. The officer is: 1) speeding toward some other emergency business . . . or, 2) speeding toward Sandra Bland . . . before she changes lanes.

      Scott wrote, “Focus on the death. Don’t let them win by diverting attention away from the death.”

      Piedmont, when the focus lands on the traffic stop, don’t be diverted from the multiple officer actions that compelled a citizen’s natural responses.

      Sandra Bland is dead. And it is doubtful we will ever know the reason Brian Encino decided to make a u-turn and speed in the same direction as Sandra Bland’s car, but it was NOT for an improper lane change.

  3. bmaz

    I tend to agree. But wonder if the recent SCOTUS decision in Rodriquez doesn’t come into play. Encinea was approaching the car to hand Bland the citation. His time with her was effectively done upon doing so, but he strung it out unnecessarily because an arrogance from contempt of cop. I think this is pretty weak as there is a fundamental difference between banter and bring a drug dog. But, still, the concept of not overly prolonging a stop of a motorist seems at least somewhat germane.

    1. SHG Post author

      An interesting thought. I hadn’t considered Rodriguez, and not sure it relates to this, but it’s a very imaginative approach.

  4. DHMCarver

    If we are in the business of parsing, what has struck me is that Bland never in fact refused to put out her cigarette (at least as the transcript reads). She asked, “Why”, and the officer went straight to get out of the car. She did not refuse to extinguish her cigarette (nor was she given the opportunity to refuse) — she simply did not comply immediately, and asked the officer to explain himself. His response to her Why was to tell her to get out of the car. Then when asked to get out of her car, she had the temerity to ask “Why” again. . . .

      1. Ross

        Apparently, once you are pulled over, you cease to be a normal person, and become an evil criminal person who isn’t allowed to ask why. At least in the tiny minds of some police officers.

        Or, perhaps the officers consider asking why to be a microaggression against their authority, immediately justifying a massive retaliation to maintain control.

  5. Frank

    “be compliant up to the point of refusing consent to search, a line that should never be crossed.”

    But if you do, be prepared to be left on the side of the road as your car is impounded to await a drug dog, leaving you to walk five miles home in winter weather without wallet or cell phone wearing only a sweatshirt.

    (Current lawsuit against the Vermont State Police.)

  6. David Woycechowsky

    4A law is shifting from a focus on warrants and probable cause and particularity to a focus on reasonableness.

    I think that is what makes the Bland stop video so interesting. The policeman may have had probable cause and the power of Carroll and the power of Mimms and all that 20th century jazz, but he was clearly unreasonable when you look at his course of conduct as a whole. Similar thing with the recent Deven Guilford tasering. Perhaps even Michael Brown (this week there was the first opinion in his estate’s civil suit).

    Thus far, the shift to “reasonableness” as the most important touchstone of 4a compliance has benefitted the coppers because it has mostly been used to excuse what was traditionally called “the warrant requirement.” However, there may now be blowback for the coppers both in the court of public opinion, and perhaps even in how alleged 4a violation civil suits are decided.

    1. SHG Post author

      A very interesting observation. I’m not fan of the shift to reasonableness, which I find to be a worthless, meaningless excuse for impropriety, but if it comes around to bite a cop in the ass, I wouldn’t cry too hard.

  7. Thomas

    Under UMCJ the request to put out the cigarette would have been considered an order. Saying please or phrasing it as a question would not change the fact that it is an order.

    I have found it interesting that it seems civilian laws do not make that distinction.

    1. Mr. Shotgun

      That would presume the police officer is, in fact, a citizen’s superior. While that may be the net effect of the the judicial system’s deference to their actions, I do not believe it would be a good idea to write that notion into law.

      1. Clarence

        Exactly.

        The idea that the citizenry should accept (or worse, should be mandated to follow) orders as if under a police officer’s chain of command is wrong – in so many ways – it made me want to vomit.

        Your diplomatic response saved me the burden.

        1. SHG Post author

          This is going down a rabbit hole of simplistic stupidity, and has no place in an intelligent discussion. Of course police officers have the authority to issue a command to a citizen, like drop the gun or raise your hands. What the hell are you thinking? We give them that authority, and we give it to them for a reason. This has nothing to do with their being “superior” to citizens, but with their having a responsibility to perform their duty.

          The issue is where the line is drawn between the proper exercise of lawful authority and over-reaching their authority. If that nuance is too difficult to grasp, then you have no business being here.

          1. Clarence

            That’s a straw man – I did not suggest that police have no authority to issue commands. My response addressed polite requests mandated as orders. “Drop the weapon” or “Raise your hands” are never phrased as nuanced polite requests.

            In the main, that issue – the nuance of “would you mind” – has been the discussion of this post and the comments.

            Thomas (in the above comment) suggests that civilian law would be improved if a police officer’s polite request becomes a legal order. That is an unsatisfactory solution.

            1. SHG Post author

              Thomas states that it would be an order under UCMJ (whether or not that’s correct, I have no clue), which isn’t a suggestion of anything. There are many differences between military and civilian law.

              But if a cop said, “Please put your hands in the air” as opposed to “put your hands in the air, asshole, or I’ll blow your fucking head off,” would you consider it a request? Would that mean the cop a citizen’s “superior”? These are rhetorical questions. The point is to distinguish between the commands that are within a police officer’s proper authority, regardless of the specific language used, and those that are not.

  8. BS Simon

    What the officer should have was “please put the cigarette down.” Either as a request or an order. Thus removing it from her hands and negating the “threat” it posed. It is unfortunate that many officers feel they must use maximum force even in low threat situations.

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