July 24, 2015

ORIN KERR: Sandra Bland and the “lawful order” problem.

Sandra Bland was pulled over for failing to signal while changing lanes. A lot of readers have watched the traffic stop which led to Bland’s arrest for assaulting an officer. If you haven’t, you should.

The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter.

The first problem is knowing what counts as an “order.” If an officer approaches you and asks you to do something, that’s normally just a request and not an order. But if there’s a law on the books saying that you have to comply with the officer’s request, then the request is treated as an order. You can’t know what is an “order” unless you study the law first, which you’re unlikely to have done before the officer approached you.

The even bigger problem is knowing when an order is “lawful.” An order is lawful if forcing compliance would not violate any law. But a citizen is in no position to assess that. Even if the police pulled over the world’s greatest legal expert, the citizen still couldn’t know what orders are lawful because the laws often hinge on facts the citizen can’t know.

Abolish governmental immunity and let the police officer bear the risk, not the citizen.

InstaPundit is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.