The Power of Police Officers to Give 'Lawful Orders'.

• Author: Mooney, James

INTRODUCTION

Sandra Bland, a twenty-eight-year-old African American woman from Illinois, had just moved to Texas to start a new job at her alma mater, Prairie View A&M University. (1) On July 10, 2015, Texas state trooper Brian Encinia pulled Bland over for failure to signal a lane change, just outside the university's gates in Prairie View, Texas. (2) Encinia explained to Bland why he stopped her and observed that she seemed "really irritated." (3) Bland admitted her frustration and defended her driving. Encinia then asked Bland to extinguish her cigarette. When Bland refused, Encinia repeatedly demanded that she exit her car. The altercation escalated rapidly. Encinia insisted that he was giving Bland "a lawful order." (4) The officer refused to explain the reason behind his command, and he attempted to yank Bland out of her vehicle, shouting that he would "light [her] up" with his Taser. (5) The threat prompted Bland to exit the car, while yelling obscenities and questioning why the officer was treating her so aggressively over a failure to signal. As he instructed Bland to turn around, Encinia said again, "I'm giving you a lawful order." (6) After an audible struggle that occurred out of view of his dashboard camera, Encinia detained Bland for "resisting arrest." (7) Bland cried that the officer was "about to break [her] wrist," that he put his knee in her back, and that he left her unable to feel her arms. (8) Encinia told his sergeant after the arrest that Bland lacked him, adding that "I got some cuts on my hand, that's, I mean I guess it is an injury,. .. from... the handcuffs when .. . she was twisting away from me."' Three days later, a guard found Bland dead in her jail cell. (10) An autopsy suggested that her death was a suicide. (11)

The arrest of Sandra Bland raised questions about police officers' power to issue and enforce "lawful orders" in confrontations with civilians. (12) The power to give lawful orders rests on statutory or regulatory authority, depending on the jurisdiction. At least forty-four states, the District of Columbia, and the federal government make it a crime for civilians to disobey the lawful orders of officers. (13) But these laws do not make it clear what lawful orders are. Legal scholarship has devoted little discussion to this question, despite the prevalence of lawful-order statutes. The uncertainty about "lawful orders" and civilians' rights during police encounters prompted Orin Kerr to write about the '"lawful order' problem" in an opinion piece that appears to be the primary treatment of this issue. (14)

Case law has failed to address the lawful-order problem by leaving the meaning of both "lawful" and "order" uncertain. First, on whether an order is "lawful," in Pennsylvania v. Minims the U.S. Supreme Court held that the Fourth Amendment permits the police to order people out of their cars in the interest of officer safety. (15) But the lawfulness of other commands depends on the facts of the case and on the open-ended wording of statutes and regulations. (16) For example, New York criminalizes the failure to obey "any lawful order or direction of any police officer or flagperson or other person duly empowered to regulate traffic," yet the statute does not define "lawful order or direction." (17) In 1973, a trial court interpreted the New York provision to allow officers to give commands "reasonably and in a manner designated to accomplish a proper objective." (18) However, no other cases have cited that proposition, and New York's highest court has not established a standard. (19) The Oregon Court of Appeals declared that judges must evaluate the legality of an officer's instruction "on a case-by-case basis" with "few if any bright line rules," noting that "an almost infinite variety of variables" could come into play. (20)

Second, it is hard to distinguish orders (which civilians must obey) from requests (which they need not obey). (21) This determination is similarly fact specific. In the Bland case, Encinia asked, "You mind putting out your cigarette, please? If you don't mind?" (22) Many people would likely consider that a request, but Bland's refusal prompted the officer to demand that she exit her car. Encinia acted as if Bland disobeyed a binding order and her disobedience gave him cause to react aggressively. Due to the difficulty of distinguishing orders from requests, and fear about upsetting an officer, many civilians likely err on the side of doing whatever an officer says to avoid arrest. (23)

The lack of clear law leaves civilians in the dark about their rights and obligations during police encounters. This tips the balance of power in officers' favor and encourages them to escalate altercations. For instance, in 2004, Seattle police tased a pregnant woman three times for refusing to exit her car and sign a speeding ticket. (24) The woman, Malaika Brooks, mistakenly believed that signing the ticket would be an admission of guilt. She refused to leave her car and hugged the steering wheel so that the officers could not remove her. (25) The police decided to fire electricity into her body repeatedly, drag her out of the car, and handcuff her as she lay face down on the street--after she had told them she was seven months pregnant. (26) The shocks did not harm the baby. But they left Brooks with permanent scars, and she sued the police in federal court. (27)

An en banc panel of the U.S. Court of Appeals for the Ninth Circuit determined that the officers retained qualified immunity against Brooks's federal excessive-force claim despite having used excessive force. (28) The court said it could not conclude that "'every "reasonable official would have understood" . .. beyond debate' that tasing Brooks in these circumstances" was excessive. (29) The Supreme Court declined to review the decision and the parties settled Brooks's remaining state-law claims in 2014, ten years after the incident. (30)

Brooks's and Bland's cases illustrate the need to curb officers' ability to invoke disobedience of "lawful orders" as excuses for needless violence. Both women's offenses were minor enough that the authorities could have issued them summonses to appear in court at a later date. Public safety did not require immediate arrests. (31) Moreover, although officers require the ability to give commands in potentially dangerous situations, overly broad statutes and regulations create criminal liability even when civilians do not know they must obey an officer's command. Making the law more specific would mitigate the risk of unfair convictions and wrongful escalation while giving police better notice about how they should exercise power over the people they serve. (32) Such reform would also work toward avoiding tragedies that damage officer-civilian relations, particularly in communities of color whose members are more likely to be stopped, searched, and shot by police. (33)

This Comment surveys the current law on officers' power to issue binding commands and proposes a model statute that would clarify and limit police authority. Part I introduces the statutes and regulations and explains the various interpretations of similarly worded laws, the limited role that judges have played in resolving the ambiguities, and the concerns that apply nationwide. Part II introduces the model statute. The proposed law would establish (1) that a defendant may not be convicted under the statute unless the officer explicitly warns her that noncompliance may result in prosecution; (2) that liability attaches only if the officer is in uniform or explicitly identifies herself as law enforcement; (3) that civilians must obey police only in certain contexts (for example, crime investigations and traffic regulation); and (4) that an order is lawful only if it is reasonably related to the fulfillment of law-enforcement duties. Part III responds to potential objections to the Comment's proposal.

1. CURRENT LAW GOVERNING POLICE AUTHORITY TO COMMAND CIVILIANS

   1. Variations in Lawful-Order Statutes and Regulations

      At least forty-four states and the District of Columbia make it a crime to disobey the police. (34) Analogous provisions in the Code of Federal Regulations require people on federal property to obey lawful orders from federal law-enforcement and emergency personnel. (35) The two most common areas of variation in statutory and regulatory language concern culpable mental states and the range of situations in which officers may issue binding instructions.

      (1.) Culpable Mental States

      Thirty-two jurisdictions penalize only "willful" or "knowing" disobedience; two states punish people who "refuse" to obey lawful orders; two other states use the word "disobey"; and eight states, the Code of Federal Regulations, and the District of Columbia do not require a particular mental state. (36)

      Few statutes clarify whether a civilian must know that she was being addressed by an officer to be liable for failing to obey a lawful order. Even in a state that penalizes only "willful" noncompliance, it is unclear whether a person may deliberately disobey an off-duty officer whom the civilian reasonably did not recognize as a member of law enforcement. Only four states--Alaska, California, Oregon, and Pennsylvania--make some form of official identification a prerequisite to issuing binding orders. (41)

      Courts in different states diverge on whether civilians must obey police officers who are off duty. For instance, in a wrongful-arrest action against an off-duty officer, the North Carolina Court of Appeals ruled that when a statute specifically penalizes "willful" disobedience, civilians only violate it when they know (or reasonably should know) that the person issuing the command is law enforcement. (42) The off-duty officer in that case was wearing plainclothes. The court decided that because there was a triable issue of material fact about whether the plaintiff knew the officer was law...