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.