What everyone can learn from the disastrous Sandra Bland arrest

The dashcam video raised a lot of questions. Here are some answers.

Feb 29, 2020, 11:01 pm*

IRL

 

Aaron Sankin

Only July 10, a 28-year-old African-American woman named Sandra Bland was arrested during a traffic stop while driving through Waller County, Texas. A few days days later, she was found dead in her jail cell, reportedly having hung herself with a plastic bag. 

In an effort to quell the rage fomented on social media about Bland’s arrest and subsequent death, the Texas Department of Public Safety released the dashcam video taken from the cruiser of the arresting officer. 

It only raised more questions.

The nearly hour-long video shows Bland and officer Brian Encinia gradually escalate from a simple case of failing to signal, to a furious Bland being carted off to jail. During the course of the video Bland repeatedly asserts her right to refuse orders given by officer Encinia.

Was she right? Where did the Encia’s authority end and Bland’s rights begin?

To this end, I asked Jason Williamson, a staff attorney for the American Civil Liberties Union’s Criminal Law Reform Project about the events shown in the video. Williamson noted that many of the things Officer Encinia did that an outside observer may instinctively perceive as not possibly being legal are actually permitted under the law.

What follows is a step-by-step breakdown of the interaction between Encina and Bland.

Bland is pulled over for failing to use her turn signal.

Encina initially pulled over Bland for failing to signal a lane change. In the video, Bland says she was just trying to get out of the way of Encina, who had been tailing her.

The implication here is that Encina was using Bland’s failure to signal as a pretext to pull her over for an entirely different reason. In an area with a long, troubling history of racism, the question of whether Encina had an ulterior motive for stopping Bland seems significant. However, according to Williamson, it doesn’t actually matter.

“Even if he suspected that she was carrying drugs or some sort of contraband in the car or something else entirely different, the Supreme Court has made it clear police officers can make pretextual stops as long as the reason they’ve given for the stop is a legitimate one,” he said.

As long as Bland didn’t actually use her turn signal before changing lanes, the stop was a legitimate one. In 1996, the Supreme Court unanimously ruled in the case of Whren v. United States that “any traffic offense committed by a driver was a legitimate legal basis for a stop.”

In his Supreme Court case, Michael Whren argued that, due to the law’s litany of regulations regarding conduct in traffic and the condition of a given vehicle, it’s essentially impossible for any motorist to drive for more than a few minutes without giving an officer some excuse to pull them over. It effectively gave police officers the ability to pull over any vehicle they wished without a compelling reason, Whren reasoned. The court disagreed.

Bland tells the officer, ‘I don’t have to talk to you other than to identify myself.’

As anyone who has ever watched a cop show on TV can attest, you have the right to remain silent because anything you say can be used against you in a court of law. This is especially important in Texas, where all traffic offenses are technically arrestable offenses. It’s rare that a Texas police officer hauls someone off to jail solely for not signaling a lane change, but they have the ability to do so. “She is correct in not necessarily having to say anything more than she said,” Williamson explained

Texas law here is interesting in another respect. Texans only have to identify themselves by name, address, and date of birth if they are arrested. While many other states require that people provide identification whenever a police officer asks, Texans are allowed to refuse if they are simply being detained or questioned by police without a formal arrest.

The officer asks Bland to put out her cigarette and she says, ‘I have a right so smoke a cigarette in my car.’ She refuses.

While Bland can legally smoke in her car, Encina had broad leeway in ordering her to do things like put out a cigarette if it came in the context of a lawful order rather than just a personal request—even though, in the context of the video, the conflict over the cigarette seems to be primarily about Encia’s perception Bland isn’t giving adequate respect to his authority. 

“I’m not aware of any specific cases that address that particular question,” Williamson said. “It was unclear to me from the video whether that was just a request of his or if, from his perspective, lawful order. It’s hard to answer without know what his perspective was on giving her that order.”

Encina tells Bland to get out of the car and she refuses. He threatens to physically drag her from the vehicle.

Assuming the underlying stop was lawful, police officers have broad discretion to make someone get our of their vehicle without any specific safety concerns. In the 1997 Supreme Court case of Pennsylvania v. Mimms, the court ruled that ordering someone out of their car during a traffic stop doesn’t violate their Fourth Amendment rights.

Bland takes out her phone and starts filming. Encina tells her to put it down.

It is legal to record police officers in the course of their duties. However, when you’re the person being arrested, the technicalities of this question become a little more complicated. “The police can’t just walk up to you on the street and tell you to put out your cigarette or tell you to stop filming them with your phone,” explained Williamson. “But if you’re in the course of being arrested or given a citation, police officers are going to be given a lot more discretion to do what they need to do to control the situation.”

Bland asks Encina over and over again why she is being arrested, but he never specifies a reason.

Within 48 hours of someone’s arrest, the government has to make what’s called a probable cause determination. The government is required to explicitly spell out what someone is being charged with and why they believe law enforcement had probably cause to make the arrest in the first place. However, there’s no obligation for the arresting officer to tell the person being arrested anything as they’re being brought into custody. “The officer who is making the arrest on the scene is not required to break down for you exactly why they are arresting you,” Williamson said. “This is another place where it may be a little bit counter-intuitive. But, unfortunately, that’s the law.”

In this particular case, Bland was charged with assault on a public official for kicking Encina, which allegedly occurred after the officer said he was arresting Bland and ordered her to get our of the car. Bland was ultimately arrested for something that occurred after Encina said he was placing her under arrest.

However, Williamson notes, there’s likely a reason why Encina can be heard repeatedly telling Bland he is giving her a “lawful order” because it’s a crime to to refuse an lawful order issued by a police officer, even though Bland was never charged with that particular offense.

Encina threatened to use a taser on Bland when she refused to get out of the car, insisting, ‘I will light you up.’

While Encina never ended up using his taser, the question of whether he would have been justified in doing so isn’t particularly cut and dry. It depends on both the specific facts of the case and the judgment of either the judge or jury ultimately making the decision. Courts have recognized the ability of police officers to use some level of force with individuals who aren’t being compliant with a lawful order. However, there’s the question of whether that force is proportionate to the circumstances. Had Encina shocked Bland while she was calmly sitting in the car, it would be one thing. Had he done so while they were struggling outside of the vehicle, it would have been entirely another.

At one point in the video, Bland can be heard pleading with the officer that she has epilepsy. The officer responds, ‘good.’

I can’t say definitively, but I don’t think her disclosure of her medical condition doesn’t change anything,” Williamson said. “If she started having a seizure while this was happening, he certainly would have had a duty to provide some kind of medical assistance. But the fact that she said that she had epilepsy, I don’t know that a court is going to require police officers to know what to do when someone says they have a medical condition.”

If a person is in the midst of a potentially life-threatening episode, the officer doesn’t need to be able to diagnose it, but they do have an obligation to make an effort to ensure the person receives medical help. Although, if a court is evaluating whether a certain degree of force used was reasonable under the circumstances, disclosures about medical history could play a part. 

Over the course of interaction, the level of tension between Encina and Bland gradually increased.

“It really demonstrates the level of animosity that can develop between communities por individuals and the police. It’s important to police officers trained to deescalate situations rather than ratchet them up,” Williamson urged. “Some would certainly suggest that she also escalated the situation. But he’s the police officer, he’s the professional. I’m quite sure that’s not the first time he’s encountered someone who was annoyed or upset they were being pulled over or arrested.”

“Even though much of what the office did was probably lawful,” he continued. “I think there are things that he could have done to helped deescalate things.”

Photo via Eneas De Troya/flickr (CC BY 2.0) | Remix by Max Fleishman

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*First Published: Jul 23, 2015, 12:49 pm