As scrutiny continues of the disturbing death of Sandra Bland in a Texas jail, much public attention is rightly focused on the traffic stop that set in motion Bland’s final days. The widely viewed video of Bland’s encounter with a state trooper has prompted outrage at what many observers view as police overreaching.
But the real outrage is that the fateful stop illustrates just how much discretion police have under the law, and how limited our rights are as interpreted by the United States Supreme Court.
Consider the trooper’s order that Bland exit her car while he was apparently in the process of finishing the traffic stop. She refused, but he insisted that he gave a “lawful order.” And he’s probably right. The Supreme Court has repeatedly said that during a traffic stop police may order drivers from cars as a matter of course, because officers must have “unquestioned command of the situation.”
Even so, was the state trooper permitted to forcibly remove Bland and intemperately threaten to “light (her) up” with a Taser? As a general matter, the Supreme Court has said (in Graham v. Connor) that police are free to use force to effectuate even a minor investigatory stop, so long as the use of force is “reasonable.” Many viewers of the video from Bland’s arrest might think it is unreasonable to use any degree of force against someone not suspected of being violent or a flight risk, and who seemed at most to be verbally irate.
But the Supreme Court has made clear that our perception of the situation is not what counts. Rather, “the perspective of the reasonable officer on the scene” is what counts in determining what is reasonable.
Moreover, to hold an officer civilly liable for any constitutional violation, the law must be “clearly established” that what he was doing was illegal. Courts tend, therefore, to dismiss civil suits against officers unless prior decisions with very similar facts made clear that the conduct violated the Constitution. And many courts have blessed the use of force under arguably similar circumstances, rejecting suits by individuals pulled from cars by their arms and legs, pepper sprayed or shocked with Tasers for refusing to exit their vehicles.
What about the arrest itself, merely for failing to signal a lane change? Texas law gives officers absolute discretion to decide whether to ticket or arrest for vehicular violations, and in Atwater v. City of Lago Vista, the Supreme Court blessed that discretion as consistent with the Fourth Amendment.
To be sure, the state trooper’s conduct in the stop appears contrary to best practices in policing, in particular in the near absence of de-escalation techniques. But it is critical to see that as far as the Constitution is concerned, his conduct is exemplary of, not contrary to, the breadth of police discretion that the courts have blessed.
The truth is that when it comes to policing the police, we have relied too much on the courts. Judges are poorly situated to generate desirable norms for police and are disinclined to enforce those norms against individual officers who they view as simply doing their jobs.
But the other branches of government can do much more to ensure that police conduct exceeds the low bar that Fourth Amendment doctrine sets. For example, state legislatures can, and should, limit police discretion to arrest for minor violations.
The Texas Legislature attempted to do that in 2001 and 2003, passing one bill barring arrests for most offenses not punishable with imprisonment, and one to force police to enact rules on when arrests can occur. Then-Gov. Rick Perry vetoed both bills. The Texas Legislature should act again to prohibit arrests for minor violations, and the current governor should lend his support.
So, too, lawmakers can push for greater police professionalism (through more rigorous training requirements) and for less protective civil service laws. In contrast to the limits of rulemaking through lawsuits, the options are theoretically endless for legislatively driven police oversight. The only limit is political will.
Jennifer Laurin is a professor of law at The University of Texas at Austin.
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