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by Peter Moskos

July 22, 2015

Get out of the car when ordered

Last month I composed this haiku:
don't be so certain
if you say “I know my rights!”
you probably don't
That was cute and all, before Sandra Bland died after being arrested in what was so close to being a warning for a minor traffic violation.

Three(?) times Sandra Bland asserted her "rights." Three times she was wrong. Now she's dead. You do have to put out your cigarette as a matter of officer safety. You do have to get out of the car. During a car stop, you are being detained. The 4th amendment barely applies. This isn't my opinion. These are Court decisions regarding general concepts of officer safety -- far more pro-cop than most cops and the public realize -- that emphasize the phrase "unquestioned police command."

Ordering people out of car isn't like use of lethal force. The latter requires articulation of danger. The Court says car stops are inherently dangerous and thus gives officers the greatest amount of discretion to whatever they see fit. (In a similar way, the Court recognizes the "inherent link" between violence and the drug corner, which gives officers carte blanche to frisk almost everybody on a drug corner, no further articulation of danger required.)

The basic rule, especially in a car stop, is obey lawful orders. Period. Resistance really is futile. Force can used to ensure compliance. I'm not saying this is good. But it is established Law of the Land.

So it pains me to read a legal analysis in a respectable publication that is so patently, even dangerously, wrong.

First let's get the objective facts right. Then we can talk about the subjective issues.

Jim Harrington, director of the Texas Civil Rights Project, should know better. You gotta get this right. He is wrong:
[The cop] does not have the right to say get out of the car. He has to express some reason. "I need to search your car," or, whatever; he needs to give a reason.
Wrong, wrong, wrong.
He can’t just say "get out of the car" for a traffic offense.
Uh, yes, he can! What part of "precautionary measure, without reasonable suspicion" doesn't he understand?

Rarely is the Supreme Court so unambiguously clear. Best I can tell, it goes back to Pennsylvania v. Mimms (1977):
The order to get out of the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. The State's proffered justification for such order -- the officer's safety -- is both legitimate and weighty.
...
[T]he only question is whether he [lawfully detained driver] shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a "petty indignity." [quoted from Terry v. Ohio]. What is, at most, a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.
...
[T]he police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.
Maryland v. Wilson (1997) reaffirmed and extended this to the car's passengers as well. Brendlin v. California (2007) re-affirmed again, but added some even stronger language:
We held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that "the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." [quoting Michigan v. Summers] What we have said in these opinions probably reflects a societal expectation of "unquestioned [police] command."
And in case you're still hoping for a loophole:
Our conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question.
And no, cops don't have to tell you anything or explain why. Maybe they should, out of courtesy or politeness or tactics. But they don't have to. They order. You obey. So says the Supreme Court.

Tangentially, not that you asked, this is what bothers me the liberal emphasis on "procedural justice" (See Obama's Presidential Police Report). This was procedural justice. Nothing the cop did was illegal. Could have the cop acting differently? Sure. Should the cop have acting differently? In hindsight, yes. But did the cop have to act differently? No. The law was followed. And now a woman is dead. It's not moral justice.

Also, here's the most complete video:



This reminds me most of all of the Henry Louis Gates arrest. You get into a pissing contest with cops, odds are you'll lose. "Pick your battles," I tell my students. A car stop is great place to keep your mouth shut. Seriously, right or wrong, what do you hope to gain from pissing off a cop?

[My analysis of the car stop is here.]

29 comments:

Lee said...

Honest question: To what extent does the Pennsylvania v. Mimms ruling hinge on "officer's safety"?

What is, at most, a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety

Does this ruling not suggest that the officer needs to be concerned for his/her safety to lawfully order someone out of their vehicle? In this particular case, don't we need to know if Encinia concerned for his safety? And who decides the legitimacy of those concerns?

I realize the Brendlin v. California case you cite reaffirms the earlier rulings by stating "driver may be ordered out of the car as a matter of course". But my question here would be, is asking the detained person to get out of the car after handing that person a document to sign (which is what happened in Bland's case) really "a matter of course"? I am not a officer of the law, but this does not sound like normal procedure to me.

And this second point brings me back to the original ruling (apologies if I'm way out of depth here) but is there not something menacing about a police officer asking you to get out of your vehicle at the end of a routine stop? In which case, isn't Bland's objection to get out of the vehicle not made out of inconvenience?

Thanks for the article. I appreciate your perspective.

Peter Moskos said...

The Court (as I understand it) justified their initial decision based on concern for officer safety in the abstract. The inherent danger of car stops and unseen places people can reach. But in the later decisions they've gone even further.

The Court has also said (in many different situations) that they don't want to get in the nitty gritty of judging such situations.

Time and time again they have given broad discretion to cops on matters of officer safety. (Too much, in my opinion, but that's another matter.)

The legal standard is often "reasonableness," from a police officer's perspective. But in terms of car stops and ordering people to get out or remain in, I don't think *any* standard has to be reached. It's entirely up to the whim (we prefer "discretion") of the police officer.

For what it's worth, *had* all the final paperwork been handed to the driver, then I think it would have changed things. Then the car stop is over. Then the rules change. But the paperwork wasn't handed back, I don't think. And I wouldn't want to hand anything to a pissed-off person holding a lit cigarette.

As to your last point, between you and me? Maybe. But what we think doesn't matter. The Court is the only opinion that matters. They make the rules.

There's also a timing issue as to whether she was under arrest for failure to obey the order to put out the cigarette or failure to obey the order to get out of the car. But I don't think it matters. Both would be legit, legally. Hell, constitutionally she could even be arrested for any minor traffic violation! (Atwater v Lago Vista (2001).)

Peter Moskos said...

I think there's a distinction being lost here between an imminent threat, such as that required to use lethal force, and general police safety issues the court had recognized.

You don't have to articulate the circumstances or feel afraid when the court gives you carte blanche. The "inherent link," for instance, between drugs and violence gives you the right to frisk any suspect standing around a drug corner. You don't need any more. You don't need anything specific. Similarly a cop can simply tell people to get into or out of car during a car stop.

Dave- IL said...

"You get into a pissing contest with cops, odds are you'll lose."

Indeed. And sometimes you go home in a bag because you had a bad day and the cop decided it was your turn to be an example. Is this the kind of country we want to live in?

Aren't police supposed to de-escalate "pissing contests?" The DPS Trooper in the video may have been relatively new to the job, but he should have been used to dealing with "irritated" motorists. The trooper decided to turn on the sarcasm. Then he acted like a butt-hurt frat boy and decided to show that uppity minority who the boss was. He didn't order her out of the car because he was "in fear for his life" or because he observed a "furtive gesture." He did it to establish dominance over a citizen that didn't show the amount of respect and/or fear he expects. And he figured she wouldn't have the power and influence to do a damn thing about it. And then she died.

Peter, if I did my job this way I would have been terminated years ago. I'd be in some f'ed up retail job or working on my PhD ; ). If I flipped out every time someone scowled at me, called me names or degraded my job I would be unemployed. Or I might have a criminal record. The main differences between this trooper and I are: 1.) I know how to deflect abuse and de-escalate conflict and 2.)I am a mere private citizen and I lack the helpful little legal shields that police possess.

Keeping these differences in mind, do you understand why I have little patience and even less sympathy for alleged peace officers like Trooper Tough Guy? Even if police can concoct legal reasons for absurd behavior, does that make it right? Sometimes its the shit that's legal in this country that really pisses me off.

Peter Moskos said...

Yeah. Cops should deescalate. I agree with you. That didn't happen here.

But as I said, let's first get the facts right, then we can (and should) talk about subjective issues. People should not say you don't have to obey an lawful order because if you believe that (maybe you read it in the Texas Standard) well that can have fatal consequences (as it did here).

Maybe the $64,000 question is, "Are cops justified in demanding a certain amount of deference and respect in their interactions with the public?" As I remember it, I demanded a bit *less* respect than other cops I worked with did. And yet I often got more (funny that). But at some point even I would draw the line.

It would be nice if everyone was respectful to respectful cops. But we know that won't be the case. So then what? (And this cop was basically a class-A professional until the "put out your cig" followed by "get out of the car now" bit, right?)

I think in this case, if you're pissed off, you just give her a ticket instead of a warning and leave it at that. Let her smoke (unless you *do* really think she's going to burn you, which changes things again). Certainly I would say you tread water until backup arrives. Never arrest anybody alone, if you don't absolutely have to.

I'll probably do a proper post about all this soon, but I also have issues with the initial stop (as did Bland). Not that it wasn't legal. It was. But it was kind of what-the-fuck? I think it was a 20MPH zone and he came zipping along. Though he may have first made the U-turn because she didn't signal her right turn. That was the offense I noticed. I don't know if that's why he turned. But it must have been then or he was just Mr. Lead Foot. He said it was for the lane change. Maybe he just picked to latter of the two offenses. But she didn't signal her lane change, so the stop *is* legal.

I harp on the legal issues because too people think if we could just get cops to follow the law and punish them when they don't, things would be OK. "This cops should be arrested" I hear people say. Well that ain't gonna happen because he broke no laws. When cops are following the law and their training and (some of) the public is *still* pissed off? That's a much more dangerous disconnect.

Anonymous said...

So your basic argument here is that being an a**hole cop is legal so don't be upset about that. Because fundamentally, if how you are going to define whether this cop did something "wrong" or not is by conflating it with "illegal" then I see no way to reform the legion of a**hole cops this country suffers from. (P.S. I do not think that your legal analysis is as slam dunk as you make it out to be although I am aware of (and outraged by) Atwater and do share you concern with some of the misinformation out there. Also consider that dashcam and bodycam is going to change the rules when there is more information for individual assessments to be made by outside observers. It may not be this case (who knows if a lawsuit is filed), but some court is going to view a dashcam video at some point in the future and reverse some of this overreach.

Anonymous said...

It isn't that the Officer was un-legal in arresting Ms.Bland, or that it was illegal to detain her for three days for a failure to use turn signal correctly. It is merely that it was senseless and stupid. The officer isn't illegal: he is just stupid.

That Fuzzy Bastard said...

So this whole post is pretty much "!t is perfectly legal for a priest to be alone with a little boy!" True, but not what anyone's talking about.

People aren not mad because the cop stopped Bland. If he had stopped Bland, arrested her, and jailed her for a few days, people would be grumbling, but it would not be a big deal. People are mad because he physically forced her down when she posed no threat, because he allegedly banged her head against the curb, because he lied in the arrest report and no superior officer has done a thing about it, and most of all because she mysteriously died in custody and no one believes it was suicide.

The stop set off that whole awful chain of events, which is why people talk about it. But really, this is about the cop's tendency to get physical, the P.D.'s tendency to cover up for cops who get violent with the citizens they're supposed to protect, and the mysterious virus in the jail that causes people who mouth off to cops to suddenly get seized with the urge to commit suicide.

Talking about traffic stop rules is fine, and it's true that many people, myself included, are incorrect about the law. But you're the one saying "Well you know a landlord does have the right to evict a tenant," when we're discussing the Warsaw Ghetto.

Andy D said...

Peter, Actually the first thing I saw was that she failed to stop at the stop sign, unless "rolling stops" are legal in Texas. I'm pretty sure that was the reason he was looking at her. though I don't know why he didn't just stop her for that in the first place.

Crappy job by the trooper all around--I have had many worse and less compliant stops and never had to arrest them for it...but in MD it is a bit harder to get PC for that, at least where I work. Your point about the LEGALITY of the arrest is well taken, although I don't see the PC for the assault on the video clearly. The comment about by the Anonymous commentator that "The officer isn't illegal: he is just stupid." is accurate as well. I think that the hubbub about the officer and the arrest is just trying to find someone to blame for an awful tragedy of a person with mental and emotional problems ending her life in custody. This is a bad job by the trooper...but not the worst I have ever seen, and certainly not illegal.

john mosby said...

What ever happened to good old-fashioned civil disobedience? Put on your narrow-tied, narrow-lapeled grey flannel suit, do what you must, then respectfully take the consequences.

It seems to have been replaced by at best un-civil obedience, and at worst un-civil interference.

Yes, the DPS trooper is goaded into screaming at the offender, but if you look/listen at her walking out of the car, gesticulating and bad-mouthing him the whole time, it kind of erodes the sympathy a lot of people might have had for her.

Seriously. Imagine if in Baltimore there had been legions of silent or hymn-singing people of all ages parading thru the neighborhood in an orderly fashion, and negotiating calmly with BPD as to how many would get locked up each night.

Instead, we get the orderly, professional behavior and attire when it's too late and the lawyers are in front of the cameras....

Dashcams and bodycams may very well swing public opinion in the opposite direction intended by the regime, if enough offender behavior gets broadcast.

JSM

David Woycechowsky said...

". . . when balanced against legitimate concerns for the officer's safety."

I think that the order to get out of the car was unConstitutional because of the above quotted language of Mims. All policemen and even some criminal defense lawyers seem to ignore these key words in Mims.

To put it another way, I don't think it is Constitutional to pull someone out of their car for exercising their First Amendment rights when it is clear that there are no legit safety concerns involved. The reason I think that most commentators miss these important points is that, as a prudential matter, one always should obey a command to get out of the car. So, in order to avoid the chance of misleading somebody into thinking that it is sometimes a good idea to refuse to get out of the car, they pretend that this is what Mims says.

However, as a legal matter, Mims says that it is only Constitutional to order someone out of the car when the order is motivated by safety concerns.

This may become important when Bland's family sues. Maybe the case wil settle more generously so that we avoid upsetting the popular (mis)understanding of Mims.

David Woycechowsky said...

"they pretend that this is what Mims says"

should have been:

--they pretend that Mims gives police absolutely unfettered discretion to order detainees out of vehicles.--

john mosby said...

Ref misunderstanding of Mims: No matter what one's understanding of this or any other case law, it's not lawful for a suspect to disobey an unlawful police order. You might beat the rap for resisting, even if you're still technically guilty, but you won't beat the ride.

When presented with an unlawful order: Comply, then complain, then collect your judgment or settlement. If it's not worth your time to complain/sue, why was it worth your time to prolong the encounter by refusing simple instructions?

JSM

Andy D said...

David,
I think that Brendlin v. California (though referencing the passenger in the quote above) actually DOES affirm what you are suggesting is a misunderstanding of Mimms. I can say for certain that police TRAINING about Mimms and Brendlin states unequivocally that you have absolute control of whether the driver or passengers are in or out of the car.

David Woycechowsky said...

One more point re Constitutionality of arresting for failure to signal:

I believe that whether it is Constitutional to arrest for failure to signal depends upon whether failure to signal is classified as an infraction of misdemeanor. I am not sure what the current classification of failure to signal lane change is under Texas law, so it may or may not have been Constitutional to arrest for failure to signal.

More interestingly and more importantly: if she failed to signal to avoid the policeman rearending her as she said she did, then there may not have been probable cause (or even reasonable suspicion) to stop her car for failure to signal. This is because the imperative of avoiding a traffic accident vitiates normal traffic regulations, at least under some state laws. It might (or might not, the law is not settled) matter whether avoidance of a traffic accident is: (i) an affirmative defense under state law; or (ii) something that defeats a prima facie showing that a violation occurred.

David Woycechowsky said...

"Ref misunderstanding of Mims: No matter what one's understanding of this or any other case law, it's not lawful for a suspect to disobey an unlawful police order."

Let me be clear:

1. One should always get out of the car.

BUT

2. There may be situations where that order is unlawful and you can sue the popo for it later. In fact the Bland case may be oe of those situations. AndyD says that there is a case that says otherwise, but he didn't quote it for us. Maybe I will check it out later and see if I agree with him.

Andy D said...

David,
the quote I was referencing was from Peter's original post:
"Brendlin v. California (2007) re-affirmed again, but added some even stronger language:
We held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that "the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." [quoting Michigan v. Summers] What we have said in these opinions probably reflects a societal expectation of "unquestioned [police] command." "

Adam said...

David: Can you cite any case from any jurisdiction that says the subjective motivations of police officers are relevant to whether they can order motorists out of their cars during traffic stops?

In Mimms, safety was one of the rationales for establishing what I've always thought of as a bright-line rule. Similarly, safety was one of the two rationales for the sweeping search-incident-to-arrest rule. (Preventing destruction of evidence being the other). Courts don't ask whether individual officers are actually worried about safety or evidence; they just apply the bright-line rule. In circumstances where the rationale doesn't fit (as in Gant and Riley), the Supreme Court just tweaks the rule. They've said over and over again that the subjective motivations of police officers generally play no role in Fourth Amendment analyses. There are exceptions, as with inventory searches (though that rule makes little sense to me), so you could be right. But it would surprise me.

David Woycechowsky said...

Got a chance to review Brendlin. I don't think it is very helpful or instructive with regard to the issue of whether it is always Cnstitutional for a policeman to order a passenger / driver out of a a stopped (that is, detained) vehicle. here is why:

1. It is "dicta." The facts of Brendlin don't involve anything remotely like a situation where a driver is ordered out of a vehicle for what appear to be reasons that are not safety reasons.

2. It parenthetical characterization of Mims mis-states what Mims actually says.

3. Its comments addressing police orders into / out of vehicles merely deal with whether drivers / passengers have to obey those orders. We are all in agreement that they do. However, just because a driver needs to follow a police order, on pain of criminal punishment for disobedience or even a second's delay, does not mean that the police order is Constitutional. This is similar to laws against resisting unlawful arrests. Just because one can, should and must submit to an unlawful arrest does not make the arrest Constitutional. Brendlin is clearly pointing out that one can, should and must obey an order to get out of the car. Brendlin is not clearly contemplating the aftermath in a court of law. You can really see this where Souter's Brendlin mentions "unquestioned police command." He is talking about the side of the road. Surely, he is not suggesting that people shouldn't ever question police commands in court in due course.

4. Neither Mims, nor Brendlin, deal with retalitory conduct, in violation of 1A, by the police. Some police orders would be lawful but become unlawful because they are motivated wanting to shut down certain speech (1A) or by racial animus (14A). In Bland's case it appears that the officer was more motivated by improper motives than proper ones when he ordered her out of the car. I hope Bland goes to SCOTUS so that these issues not addressed by Mims and Brendlin can be heard in context of a case where there is video (rather than testilying).

David Woycechowsky said...

"David: Can you cite any case from any jurisdiction that says the subjective motivations of police officers are relevant to whether they can order motorists out of their cars during traffic stops?"

Hopefully Bland v. Encinia, --- S.Ct. --- (2018).

In the meantime here is a good article to read to understand the legal issues involved:

http://columbialawreview.org/between-healthy-and-hartman-probable-cause-in-retaliatory-arrest-cases/

Adam said...

If the officer ordered Bland out of the car because, at that moment, he decided he was going to arrest her for a petty traffic offense, then Mimms is irrelevant. You can always order somebody out of the car for the purpose of effecting an arrest. (Duh). So then the only question is the legality of the arrest.

I agree with Peter that the whole First Amendment/retaliation idea is pretty weak. I mean, how the hell do you prove that? If I, as a cop, am about to give you a warning for a traffic infraction, and then you start mouthing off about why it was bullshit for me to pull you over in the first place, that might indicate to me that a warning isn't going to be a very effective deterrent for you. So I decide you need a citation--or, if I'm a jerk--I decide you need to be arrested. Maybe you don't like my exercise of discretion, but I think you need a decent-sized leap to get to a First Amendment violation.

David Woycechowsky said...

Adam: Lawyers prove intent all the time. It is still part of what is required for most criminal convictions (other than those obtained by plea). In the criminal context the standard is proof of intent beyond a reasonable doubt. In the civil context, where intent is required, it is only proof by a preponderance standard. In the Sandra Bland case, with the relatively clear video and straightforward conversation, I have no problem concluding that it is more likely than not that Officer Encinia ordered her out of the vehicle for reasons other than: (i) to arrest her for failure to signal; and/or (ii) concern over his safety.

Side comment: I din't think she deserved a ticket (or an arrest) for failure to signal in the first place. After she explained to the officer why she failed to signal, I was even more sympathetic to her. Where you heard "mouthing off," I heard a pretty credible explanation of why she didn't even deserve so much as a written warning.

Anonymous said...

Blanket rules are going to be set aside when video becomes readily available. It is relatively easy to see that order was retaliatory from the video. So maybe not this case, but soon a judge is going to say, we don't have to follow a blanket rule when we have specific evidence right in front of our eyes. At that point, I think we will (finally) be on the way to reversing Atwater.

Dave- IL said...

john mosby said:
"What ever happened to good old-fashioned civil disobedience? Put on your narrow-tied, narrow-lapeled grey flannel suit, do what you must, then respectfully take the consequences."

John, with all due respect, people who talk like this are usually the least likely to be affected by state violence.

We should respect the accomplishments of the US civil rights movement. But don't you think people ever get tired of getting their asses kicked? Even after the progress made in the 60s, look at the realities we face in 2015 America. AFTER the civil rights era, we moved into a policy of mass incarceration, fueled in large part by a racist Drug War (the results are clearly racist even if the intent of individual actors is not). Black people are the number one target. They are the low hanging fruit. They represent numbers and promotion opportunities for police and job opportunities for rural whites who want to be CO's.

And you want black people to put on their Sunday best and sing church hymns AGAIN when they know from experience (not just from YouTube) that they are treated more harshly by the criminal justice system than anyone else in the US?

Let me close with an excerpt from "Between the World and Me," the new book from Ta-Nehisi Coates:

The truth is that the police reflect America in all
of its will and fear, and whatever we might make of
this country's criminal justice policy, it cannot
be said that it was imposed by a repressive minority.
The abuses that have followed--the sprawling carceral
state, the random detention of black people, the
torture of suspects--are the product of democratic
will. And so to challenge the police is to challenge
the American people who send them into ghettos armed
with the same self-generated fears that compelled the
people who think they are white to flee the cities and
and into the Dream. The problem with the police is
not that they are fascist pigs but that our country
is ruled by majoritarian pigs.

Adam said...

Fair points, David. I understand the standard of proof in civil cases but was thinking qualified immunity would make those claims difficult. Skimming the caselaw, it looks like plenty of those cases get over the qualified immunity hurdle, and the standard is whether the officer would have made the arrest even without the alleged retaliatory motive.

I still think Mimms created a bright-line rule (plenty of cases interpreting Mimms say as much), so I don't think there's much hope for that 2018 Supreme Court case. But you are right that Bland's estate might have a First Amendment retaliatory arrest claim that could make it to a jury.

And in my defense, my little hypothetical was not meant to perfectly mirror Bland's case. I very much agree with what she said during the stop, which is that the cop asked her why she was upset, and then he got angry when she told him!

john mosby said...

Some good points. I would counter-point that the abuses you mention came after the 60's riots, panthers, and other practices that scared the silent majority. Of course, the riots and armed self-defense were a reaction to MLK's assassination, which understandably knocked the wind out of the civil-disobedience movement.

But still. Bland was a college graduate enroute to a white collar job. Not too much of a burden to expect her to treat the police with respect, even though he's wrong and Mexican.

Anonymous said...

"Civil Disobedience" requires that you nonviolently submit to arrest without resistance and accept the consequences.

Preacher Cruz said...

What about people who have been drinking and are passengers? IF they get out they can then be arrested for "public intoxication"... How do you prevent that when you have a designated driver?

Peter Moskos said...

I don't know, but I would think they *could* be arrested. (Even though I can't imagine it would hold up in court.) I'm kind of surprised to find that "public intoxication" is actually still a crime in a few states.

You could certainly be arrested for being disorderly in public after being asked to get of a car. And the states that still have "public intoxication" on the books seem to define with some actual action, as opposed to just the state of being drunk.