The law of the Sandra Bland traffic stop

http://www.washingtonpost.com/posttv/national/dashcam-video-shows-sandra-blands-arrest/2015/07/21/5464d296-3003-11e5-a879-213078d03dd3_video.html

I've been asked a lot about the law of the Sandra Bland traffic stop, and in particular whether Bland had to put out her cigarette and get out of the car. Here are a few thoughts.

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.

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.

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. "[O]nce a motor vehicle has been lawfully detained for a traffic violation," the Court held, "the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." 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.

But there's a complication. The order was lawful under the Fourth Amendment, but was it lawful under the First Amendment? Unlike the Fourth Amendment issue, the First Amendment issue can hinge on the officer's subjective intent. 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.

Big caveat here: I'm not a First Amendment expert, and the law here looks complicated and mixed. Please think of my analysis as a placeholder until Eugene or some other First Amendment pro comes along. But in general, the First Amendment can prohibit retaliation against a person's speech. According to the Fifth Circuit, where the Bland stop occurred, the First Amendment prohibits retaliation against citizens when three conditions are met:

(1) they were engaged in constitutionally protected activity, (2) the [officer's] actions caused them to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the [officer's] adverse actions were substantially motivated against the [citizens'] exercise of constitutionally protected conduct.

I would think that the first condition is readily satisfied, as Bland was engaged in First Amendment speech with the officer. We can't answer the third question with confidence, as it is a fact question of what was going through the officer's head. We just don't know.

Perhaps the most interesting condition is the second, which asks whether the officer's "actions caused [Bland] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity." As I understand this, the issue is whether the officer harmed the suspect in a way that was enough of a big deal to intimidate an ordinary person from engaging in protected speech. This is tricky because it seems to depend on how you view the relevant "action." Is the officer's action just ordering Bland out of the car? If so, it doesn't seem like being ordered out of the car would make a typical person stop speaking out against the officer. Or is the officer's action the use of force to get Bland out of the car after Bland refused? If so, it seems like that might make a typical person pipe down.

As if this weren't complicated enough, there's a circuit split about whether a retaliatory arrest violates the First Amendment when the officer has probable cause to make the arrest. It's not clear to me how this would play out in different circuits with an order to exit a car, which is is always permitted under the Fourth Amendment.

And as a practical matter, even if the officer did violate Bland's First Amendment rights by ordering her out of the car, the officer certainly won't think his order was unlawful. The officer will be thinking about the Fourth Amendment (which allows the order), not the First Amendment (which might or might not). And if the issue were litigated later, it would be very hard to prove that the officer ordered Bland out of the car to retaliate against her. It's a claim in theory, but seems awfully hard to win on in practice.

So in short: Bland did not have to put out her cigarette. She likely had to exit the car, although it's possible to that she didn't have to because the officer was ordering her out of the car for reasons of retaliation—a possibility that might have been raised later in court, but wouldn't persuade the officer.