The repercussions of a controversial traffic stop involving a woman named Sandra Bland and a state trooper in Waller County, Texas – documented in video footage – have further fueled an ongoing debate between legitimate police enforcement and its tension with citizens’ rights.

Bland was arrested on July 10 based on the traffic stop, and, after spending the weekend in jail, took her own life while still in custody.  The events that led to that tragic moment all started with the traffic stop.  From a legal perspective, the heart of Bland and the trooper’s exchange centered around individual constitutional liberties in the context of law enforcement action.  The Texas Public Safety Department has since ruled that the trooper “violated the department's procedures regarding traffic stops and the department’s courtesy policy.”   But in viewing the circumstances of the stop through the lens of the law, it is unclear where the limits of a police officer’s authority are in such encounters.

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After pulling Bland over for a failure to signal, the officer asked her to extinguish her cigarette—a product she was legally entitled to smoke at the time of the stop. When Bland declined, the officer ordered her out of the vehicle. Bland refused this order as well, and an altercation ensued.  Throughout the encounter, the officer repeated the following refrain: “I’m giving you a lawful order.” But was the officer correct? Was the officer authorized, under law, to order Bland to extinguish her cigarette? And was the officer, upon Bland’s refusal of that order, thereafter authorized to order Bland out of her vehicle? With growing public scrutiny of law enforcement conduct, it is time for legislatures and the courts alike to provide clearer guidance in defining what constitutes a “lawful order.”

In considering the limits of what constitutes a “lawful order” in the context of a traffic stop, it is important to first acknowledge several realities.  Policing is a dangerous job.  Officers regulating and directing traffic encounter people at their most intoxicated, their most disturbed, and, sometimes, their most dangerous.  It is this daily routine (and its frequent dangers) that forces law enforcement officers into high alert when they interact with drivers.  In these tense encounters, the law should be designed to ensure officer safety.

There is, however, and has always been, a need to balance officer safety against individual rights.  Between these competing goals one thing is certain: Drivers and officers alike would benefit from knowing exactly where a driver’s rights end and the officer’s ability to give a “lawful order”—and demand compliance—begins.

A number of states, including Texas, Illinois, Louisiana, Rhode Island and New York, have lawful order statutes on the books. These statutes prohibit citizens from failing to comply with lawful orders given by police officers empowered to regulate or control traffic.  Most courts, however, including those in Texas, are largely silent as to the definition of what constitutes a “lawful order” in the traffic stop context.

Indeed, one needs to go back to 1973 to find a court opining on the challenge of defining a “lawful order.” People v. Jennings, 347 N.Y.S.2d 818 (N.Y. Just. Ct. 1973). In Jennings, the court flatly rejected the prosecution’s contention that “lawful” means any order “that does not require the operator to break the law.” The court noted that accepting such a definition would “subject the passing motorist to the slightest whim” of the officer empowered to direct traffic. Unfortunately, the court then adopted the ambiguous rule that an order is lawful when that order is “reasonably designed to achieve” its goal.  The court did not further define “lawful order” or describe what legitimate goals were to be achieved by a particular order. The lack of clarity as to the definitions of these terms is precisely the problem that can lead to a driver reasonably believing she is being harassed by an officer and refusing an officer’s picayune order—particularly when the order appears to have no bearing on the traffic stop or law enforcement generally.

The pertinent question, then, is what is the “goal” of a police officer in giving orders during a traffic stop.  Perhaps the goal is to issue a warning or a citation and to do so safely.  Perhaps the goal is to enhance the safety of the public roadways generally.  Whatever an officer’s “goal” in making a traffic stop, however, it is difficult to see how the order for Bland to extinguish her cigarette was reasonably designed to achieve these or any other goal (we are not dealing with a situation in which Bland was smoking a cigarette in a car full of explosives). While one could theoretically argue that the trooper might have feared Bland would fling the cigarette at him and then pull a weapon, a review of the video of the stop offers no suggestion that the officer feared for his safety nor reasonably believed he was dealing with an individual likely to escalate the situation into an armed confrontation. And, in any event, if such subjective possibilities legitimize an officer’s order, essentially any command by an officer could be justified as safety-related, thus eviscerating any limit on what constitutes a “lawful order.”

Because of the vagueness of the law, it is not clear whether the trooper’s order to Bland to put out her cigarette constituted a “lawful order.” The trooper thought so.  It appears Bland did not. The contrasting views led to an escalated situation that resulted in arrest and confinement, and, ultimately and tragically, Bland’s death.

The law’s uncertainty, in which neither party truly knows the limits of their authority, makes these traffic stop encounters more complicated and less predictable than need be for both drivers and officers alike.

All sides to these encounters would benefit greatly if the law endeavored, either through legislation or court review, to provide clarity as to what officers may and may not lawfully order during traffic stops. An improved understanding and clearer guidelines would reduce the anxiety for both parties during these encounters. Until such clarity is achieved, we should expect continued confrontation between otherwise reasonable people imposing their own views of what is or is not permitted under the current law.

Schar, co-chair of Jenner & Block’s White Collar Defense and Investigations Practice, is a former assistant US attorney who has tried more than 20 criminal cases.  The opinions here are his own.