Correction, apology and reaffirmation of my conclusion re Sandra Bland’s arrest

I write to correct a mistake I made in my article yesterday titled, Sandra Bland was unlawfully arrested. I also apologize for some harsh words I used in responding to legitimate comments. Nevertheless, I still believe she was unlawfully arrested.

I was wrong when I said that a failure to signal a lane change is a non-criminal traffic violation. It is a misdemeanor in Texas where this arrest occurred, so the officer could have lawfully arrested her for that offense. See Texas Statutes Chapter 545.104. Note that he still could have stopped and cited her for failing to signal a lane change in jurisdictions that have decriminalized traffic violations. He could not have arrested her, however, unless she had refused to sign the citation promising to appear in court on the date and time printed on the citation. Also remember that DUI, reckless driving, Hit and Run, Vehicular Homicide and Driving While License Suspended or Revoked remain criminal traffic violations in those states.

Nevertheless, he chose not to arrest her for that offense and was, instead, going to issue her a warning and let her go, until she refused to put out her cigarette. He ordered her to get out of the car when she refused.

This brings us to Pennsylvania v. Mimms, 434 U.S. 106 (1977), where the SCOTUS decided that a police officer may order someone to step out of a car for safety reasons.

Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code. Deferring for a moment the legality of the “frisk” once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment. This inquiry must therefore focus not on the intrusion resulting from the request to stop the vehicle or from the later “pat down,” but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped.

Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer’s interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently
*110 his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.

We think it too plain for argument that the State’s proffered justification—the safety of the officer—is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra, at 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93 (1963).” Adams v. Williams, 407 U. S. 143, 148 n. 3 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U. S. 218, 234 (1973). Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id., at 234 n. 5.

The officer in this case was not concerned about his safety; he was angry because Sandra Bland refused to put out her cigarette. He not only did not have a reasonable suspicion to believe that she was committing a crime, he had no suspicion. He assaulted in anger. Black lives do matter and I cannot ignore the terrifying epidemic of white cops killing unarmed blacks. Sandra Bland had good reason to fear for her safety.

Under these circumstances, where his reason to arrest had nothing to do with enforcing the law, I am sticking to my conclusion that he unlawfully arrested Sandra Bland.

UPDATE: NBC News is reporting this afternoon,

Medical examiners ruled the death of Sandra Bland a suicide by hanging, and the autopsy uncovered no evidence of a violent struggle, a Texas prosecutor said Thursday.

Warren Diepraam, the first assistant district attorney of Waller County, released the findings at a press conference. He said prosecutors had “full faith” in the state forensics agency that conducted the autopsy.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.