Did she really have to put out her cigarette? Exactly when was she arrested, and for what? Newly released dash cam footage of Sandra Bland’s arrest has raised as many questions as it has answered. To help make sense of the 49-minute video, we talked to Andrea Ritchie, a police misconduct attorney and co-author of “Say Her Name,” a recent report on black women’s experiences with state violence. Ritchie is not personally involved in the Sandra Bland investigation.
1. The arresting officer tells Sandra Bland to get out of her car after she declines to put out her cigarette. Is that legal?
Yes, unfortunately although there is no law I am aware of that says you can't smoke in your own car or have to comply with an officer's order to put out your cigarette when you are in your car waiting for them to run your license and plates, the officer can tell the driver to get out of the car. Now, whether the officer had a legitimate concern for his safety in that moment based on the fact that [Bland] was smoking a cigarette while answering his questions is another story. I didn’t see anything in that video that would give the officer a reason to ask her to step out of her car other than to punish her for asking questions and saying, “Why should I have to put a cigarette out in my own car.”
So, while technically the law permits him to order to get out of the car, from a practical perspective and from a best practices of law enforcement perspective and based on law enforcement officers being trained on how to de-escalate rather than escalate situations, it was completely unnecessary and resulted in escalation.
If an officer looks into a car and sees the driver reaching into the console or glove compartment and sees maybe a gun sticking out of a seat or sees something that could be a weapon then that would be why an officer has justification to ask a driver to step out of a car. Or if they feel like the person is about to drive away, or trying to escape. That’s a legitimate reason why an officer would ask the driver to step out of the car.
From watching that video it’s clear he mentions nowhere that he thought she had a gun, or that he saw a weapon or anything of that nature. The car was clearly stopped. It wasn’t even that the car was running and she had her foot on the brake. Her brake lights weren’t on.
So while an officer can tell a driver to get out of the car at any time, there was no practical reason to do that he articulated or that was visible. She was calm, she was in her car. She was definitely irritated. He asked her why she was irritated. She gave him an honest answer. At that point the best practices for procedure would be to just give her the ticket or walk away. Or try an de-escalate the situation - instead he clearly escalated.
2. When Bland refuses to get out of her car, is that legal?
For a driver, if you’re told to get out of the car, you have to get out of the car. She said, “Why do I have to get out of my car?” and she is entitled to ask a question. And at that moment he could have said, “You know I am worried you’re going to drive away, I think you’re reaching for a weapon, I’m afraid for my safety.” He didn’t have to answer, but he could have. Instead he just escalated the situation further by screaming at her, screaming at her, screaming at her, and continuing to detain her.
3. Was the officer allowed to pull his taser on her and threaten her with the words “I’m going to light you up?”
I don't know the excessive force policy of the department, but the best practices of law enforcement is to use the least amount of force necessary in a situation. At the time he could see all of her body; no part of her was making any contact with any part of his body. While she was verbally questioning his behavior, she wasn’t threatening him verbally in any way, she wasn’t threatening him physically in any way. The car wasn’t preparing to leave, there was no indication the car was moving. So I can see from looking at that no justification whatsoever for threatening to use force on her in that moment other than being punitive.
And to the extent that he needed to use restraint or put his hands on her in what he called a “lawful order,” the first thing you should do is try verbal communication. The next step is to try something involving using your hands, and for many departments, tasers are supposed to be a last resort, and only a substitute for lethal force. [They’re] not supposed to be something you use to get compliance when you haven’t tried anything else. And they’re not supposed to be something you use to punish people. Clearly in that situation he was threatening to use it to punish her and went straight from zero to a thousand. There was nothing in that video that shows he was under threat from her physically. Nor was she verbally threatening to him. Nor did she present any physical threat to him. There was absolutely no justification for him to threaten to “light her up” to get her to comply with an order. And I just want to point out that she voluntarily got out of the car. He did not pull her out of the car. She voluntarily got out of the car.
4. When Bland asks him 14 times what she’s being arrested for, is he supposed to tell her?
He’s not required by law to answer, but again it’s generally understood best practice of law enforcement, especially when there’s no dangerous circumstances. Obviously, the best practice is to give the person information.
5. I don’t understand how the arresting officer can tell Bland she is going to jail for resisting arrest. How can you be arrested for resisting arrest?
There has to be a lawful arrest in order to be resisting it. Unfortunately, the Supreme Court has decided that you can be arrested for a traffic violation, and that it’s entirely up to the officer’s discretion whether they’re going to give you a ticket or arrest you. It was a Supreme case called Atwater that said that. So, the moment she failed to use her turn signal, he had probable cause to arrest her.
6. Are the police allowed to search her car?
Yes. When she’s under arrest they can search the immediate area around her. And in this case they were impounding the car because she isn’t going to drive anywhere, so they’re allowed to search it before impounding it.
7. Is Bland, as far as you can tell, being arrested or being detained? Can you explain the difference between those two?
There is a point when he is telling her to get out of the car when she asks why she is being told to get out of the car if she is not under arrest, and he tells her she is under arrest. She then asks for what? For failure to use a turn signal? She was justifiably frustrated - there was no reason, he was clearly exercising his discretion in a discriminatory manner because he didn't think she, as a black woman, was entitled to ask questions or exercise her rights.
Being detained is being detained for investigation for a crime, and being arrested is being taken into custody. In a traffic stop there is a gray moment where the officer has probable cause to arrest you for a traffic violation, and you’re being detained for further investigation for whether you have warrants, whether your license is valid, whether you are driving with insurance and if the investigation for those things turns up clean then usually officers exercise their discretion to issue you a ticket.
So if I’m pulled over for a traffic stop, am I under arrest? Not unless the officer decides immediately to arrest me. Like, if I’m pulled over for a traffic ticket and I’m slurring my words the officer is immediately like “You’re under arrest for a DUI.”
8. The arresting officer is heard speaking off-camera to someone. He is trying to figure out what to charge her with. Is this typical? To try and figure out what to charge a suspect with?
You have to have reasonable suspicion to detain them and probable cause to arrest, but then afterwards yes, people do sit around and figure out what official charges to bring. But if he said “We had her on a failure to turn, what else can we charge her with?” that’s something they can do. And that’s the whole thing about racial profiling. [Police] get you on the broken tail light and now I’m going to get you on everything else.
9. At the very end of the video the arresting officer tells Bland she is under arrest. Was she not under arrest before when he told her she was going to jail?
As soon as she told her she was going to jail and had cuffs on her, she was under arrest. Basically, if you’re in handcuffs and you’re being detained for longer than it’s reasonable to investigate whether your driver’s license is good and you have insurance, you’re at least temporarily under arrest.
Why couldn’t he leave her alone? Obviously we know why. Because she didn’t show him the respect that is expected of black women which would be “yes massa, no massa.” She wasn’t a mammie. She was a sapphire. And she was asserting her rights. He asked her why she was annoyed and she answered him. And that’s it. It should have been over at that point. Anyone would have been annoyed.
10. Miranda rights: I didn’t hear the officer read them to her. Is he required to?
No. He is only required to read them to her after she is under arrest and if he is interrogating her. And he didn’t ask her “Did you or did you not fail to turn?” or “Did you kill that person last week?”
11. Off-camera, Bland is heard saying her head was slammed against the pavement, but we can’t see it. What do you make of that?
She said she can’t hear, she can’t feel her arm, he slammed her head on the pavement. Why are they not calling medical attention for her? And she said she has epilepsy. They should have been calling medical attention for her. Not assessing his cut. That was a policing moment where I was like, are you kidding me?
12. Could this all have all been avoided, and how?
This could have completely been avoided. Especially since the incident escalated after he ran her license and registration. The incident should have ended in a warning or citation. She said she was trying to sign the ticket and get on her way. He asked her why she was irritated and she told him. He shouldn’t have asked that question if he didn’t want an honest answer. And once he got the honest answer he should have let it go. Or, tried to de-escalate the situation. He escalated by asking her to put out her cigarette. It’s not illegal to smoke in your own car. And it’s not illegal to smoke during a police encounter.
Collier Meyerson is a reporter at Fusion with a focus on race and politics. She lives in Brooklyn.