As we delve deeper into every minute of the infamous Sandra Bland traffic stop seen around the world, experts (as expected) are clawing into every legal nook and cranny to ask one of the most pressing questions of 2015: Exactly how many rights do you have should you see the popo’s red and blue lights flashing in the rearview?
It’s not crystal clear. While we’d like to think we have enough constitutional armor to take on a trigger-snapping squad of Boss Hog’s finest, the unfortunate reality is that we don’t. Thanks to a permanently ideological Supreme Court dominated by conservative stalwarts, the cops have even more rights than you do.
And even in the post-Bland world, you should anticipate traffic stops getting worse, since the Supreme Court is usually unmoved by current events.
To most living through the social-media-magnified #BlackLivesMatter microscope, any notion of enhanced police power seems unreasonable and unfathomable. Which is why black folks, understandably, are pushing back. Yet even with increased smartphone surveillance and hourly scrutiny of police, law enforcement seems strangely emboldened … and even dismissive.
Like the rest of us, Texas state Trooper Brian Encinia hadn’t been living in a bubble when he stopped Bland. Unless all he did was watch the Cartoon Network and read comic books on his downtime, Encinia had to have known that every random, modern traffic stop has the potential to carry heavy consequences.
More than likely he knew, thereby rendering hours of mandatory de-escalation training meaningless. But his failure to professionally deal with Bland also reflects something police culture gets that we haven’t fully grasped: that they’re already given quite a wide range of latitude to stop, search, seize and arrest.
Quite a few folks, including the Center for American Progress, have cited the Rodriguez v. United States (pdf) decision in April as good-enough reason that Bland should never have seen the inside of a jail. As Supreme Court Justice Ruth Bader Ginsburg put it, “The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns.”
In other words, since Bland didn’t represent any threat—she only failed to use a signal to change lanes and was understandably irritated at being stopped—there was no “mission” justifying any arrest in the first place.
But the problem here is that either Encinia didn’t get the memo on Rodriguez or he (as well as others) is getting mixed messages from a high court known for its scrabbled aloofness. Although Rodriguez may have resolved traffic-stop length of time, it didn’t address the much more consequential traffic-stop reasoning the same way a less-hyped Heien v. North Carolina (pdf) ruling did when it dropped last December.
Heien is like the legal Godzilla of bad cop excuses: An officer’s “mistake of law,” opined conservative Chief Justice John Roberts, can be constitutional so long as it’s all “reasonable.” In essence, it gives aggressive police officers the kind of legal elbow room they need for misconduct; or, as criminal-justice expert Lauren Kirchner explains, “[I]t essentially gives cops even more latitude than they already had, to stop whomever they want, for whatever pretext they claim.”
Heien also pretty much played backup to another little-known 1997 ruling called Maryland v. Wilson, in which the court agreed that officers can order passengers out of cars during any traffic stop, crime or no crime. Then-Chief Justice William H. Rehnquist wrote at the time that “the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger.”
This all makes Rodriguez relatively empty. Not only did Heien and Maryland make cops legally invincible and always right during traffic stops, but both cases also offer them convenient justifications, despite mountains of empirical evidence proving persistent frisk and ticket racial gaps on the side of the road.
In the final analysis, it should prompt us to think twice if stopped by the fuzz. The reasons are a mix of the political, the practical and the jurisprudence outlined above.
Politically, in both courts of law and public opinion, it’s still a world in which a cop’s word is perceived as more trustworthy than a victim’s. On a practical level, police assume that we instinctively know the unofficial code of traffic-stop interaction: Don’t beef with the armed and substantially wound-up authority figure prepared to pop off at a moment’s notice. We cringe but begrudgingly appreciate the crushing honesty in Los Angeles Police Department veteran Sunil Dutta’s revealing August 2014 post-Ferguson, Mo., essay: “[I]f you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.”
Still, we’re left hanging when it comes to whether compliance is actually safe or if we just put our lives in the hands of a split-second-reacting, judge-and-jury cop. Conventional wisdom might suggest that it’s simply a matter of being compliant; data, however, suggest that blacks in a major city like New York are, for example, 85 percent more likely than whites to be charged with “resisting arrest” for misdemeanor drug possession.
Since national studies on the outcome of compliance vs. noncompliance are kind of thin, driving, walking, running, skipping or shopping while black becomes a bewildering Vegas gamble of life and death. If you’re a parent like me, we have no choice but to pass that note along to our legal-age driving black teens.
Charles D. Ellison is a veteran political strategist and a contributing editor at The Root. He is also Washington correspondent for the Philadelphia Tribune, a frequent contributor to The Hill, the weekly Washington insider for WDAS-FM in Philadelphia and host of The Ellison Report, a weekly public-affairs magazine broadcast and podcast on WEAA 88.9 FM Baltimore. Follow him on Twitter.