"What happened is, there’s a term we hear in the criminal law field-- “somebody failed the attitude test.” And when somebody fails the attitude test, things escalate.
Again, there is no “attitude test” that’s permissible as a basis for police encounters, meaning police officers don’t get to harass you because you have a bad attitude, or you don’t show them the proper deference.
You see in that moment where he orders her to put out her cigarette, a breakdown in police training. Basically, being a police officer, you’re going to run into people having a bad day, not wanting to engage with you, not wanting to chat and not wanting to continue an encounter beyond the legally permissible scope of the encounter. And that’s what happened here. She’s allowed to leave at that point, and he’s like "hey put out your cigarette."
He has no lawful basis to order her to do so under the facts of this case. If she was doing something that was interfering with him conducting the traffic stop, the officer may issue a lawful order for her to stop doing that. But officers continue encounters with people smoking cigarettes all the time. She’s not doing anything unlawful, she’s not doing anything that increases the danger to the officer.
But beyond that, the question becomes, why is he telling her that? Why is he telling her to put out her cigarette? What is his lawful authority to do so?
Because his right to detain her ended the minute he was done with his traffic investigation and written the ticket or warning. At that point, the detention became unlawful.* At that point, he is no longer acting in his capacity as a police officer, rather he is just a man in uniform harassing a woman stopped alone in her car by the side of the road.
Again, this is where the Fourth Amendment controls the encounter. Once the investigative detention relating to the traffic stop was complete, he had no basis to detain her, no basis to order her to put out her cigarette, and no lawful basis to order her out of her vehicle.
ATTN.COM
What Sandra failed was the Uppity N-Word Test. It's 2015. It is decades past the time that this test was abolished
The lawyer interviewed here follows up by saying Bland had the right to resist an assault, even if someone wearing a uniform is doing the assaulting.
Read The Entire Conversation Here
http://www.attn.com/stories/2498/sandra-bland-arrest-lawful
* * * * *
THIS SUPREME COURT CASE DESCRIBED BELOW IS JUST ONE OUTCOME OF THE BLACK LIVES MATTER PROTESTS FROM FERGUSON TO STATEN ISLAND. THIS CASE REPRESENTS THE SUPREME COURT IS TAKING STEPS TO POLICE THE POLICE.
OUR VOICES MATTER
THE APRIL 2015 DECISION THAT MADE BRIAN ENCINIA'S ORDERS TO GET OUT OF THE CAR UNLAWFUL IS:
*Rodriguez vs. United States (April 2015)
The court took the case Rodriguez v. United States ...Ginsburg got to write the majority opinion. She didn't overturn the 2005 Caballes case, in which she had dissented -- doubtless she didn't have the votes to do so. Instead, she noted that Stevens, writing in Caballes, had said that a traffic stop could become unlawful “if it is prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket.”
Ginsburg was this time prepared to concede that an officer could perform “certain unrelated checks” during a traffic stop. But, she said, the officer could not perform unrelated checks “in a way that prolongs the stop.”
Bloomberg View
http://www.bloombergview.com/articles/2015-04-21/the-supreme-court-is-worried-about-the-police
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