Police, Politics

Sandra Bland And What No One Seems To Know About Their Rights

Traffic stops are among the most common encounters with law enforcement that most Americans will have; if the average citizen has no clue what her rights or duties are during these encounters, then we’re doing it wrong.

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Righteous-IndignationA grand jury in Texas this week indicted Brian Encinia for perjury in the case of Sandra Bland, the young black woman who allegedly hanged herself under suspicious circumstances in a Waller County jail cell after being pulled over for a minor traffic offense. Encinia, the state trooper who pulled over Bland, claimed in sworn statements that he ordered Bland out of her vehicle “to further conduct a safe traffic investigation.” Apparently, grand jurors doubted that this was true.

In July, the Texas Department of Public Safety released video footage taken by the camera mounted on the dashboard of Encinia’s police cruiser. (You can choose between version 1.0 — with suspicious glitches and loops and inconsistencies — or version 2.0, which the TDPS later released.)

The video shows the increasingly tense exchange between Bland and Encinia, beginning with a routine traffic stop, escalating to a physically forceful confrontation and arrest. The footage is most haunting because the viewer knows the young woman’s ultimate fate. Sandy Bland is, after all, dead by the time the public cares about the details of who said what to whom during what might have been a mundane transaction between motorist and law enforcement.

Even apart from concerns about what happened to Sandra Bland after her arrest, public debate over the dashcam video highlights substantially different understandings about what the law requires of police officers and private citizens during traffic stops. 

Was Bland required to extinguish her cigarette when Trooper Encinia told her to do so?

Was Bland required by law to exit her vehicle when Trooper Encinia told her to do so?

If Trooper Encinia was not acting lawfully when he asked Bland to exit her vehicle, how much, if any, physical force was she permitted by law to use in resisting him?

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Sandra Bland’s mother told the press that she believed Encinia ought to be charged with assault, battery, and false arrest. Some commentators — some of whom may be affiliated with a movement that maybe could rhyme with “Jackknives Clatter” or “Lack Drives Chatter” — insist that Sandra Bland knew her rights, stood up for her rights, and had her rights baldly violated by Brian Encinia’s string of unlawful orders.

Others countered that the video shows Sandra Bland “resisting arrest,” and if she had only behaved herself, Encinia would not have felt the need to haul her to jail.

Sandra Bland most likely erred by failing to exit her vehicle when asked. By doing so she was not “resisting arrest,” though she may have failed to comply with a lawful order. Compare Texas Penal Code Section 38.03: Resisting Arrest, Search, or Transportation with Section 542.501 of the Texas Transportation Code: Obedience Required to Police Officers and to School Crossing Guards — a good law to keep in mind next time you feel like sassin’ a crossing guard.

Moreover, whether we like it or not or most people know it or not, the U.S. Supreme Court’s opinion in Pennsylvania v. Mimms gives law enforcement officers broad discretion when it comes to ordering drivers to exit their vehicles during traffic stops. While concern for officer safety grounds the rule in Mimms, the opinion suggests that the reason in a specific case may be little more than convenience, or a universal precautionary measure, or the desire of an officer to exercise the legal option available to him. The officer does not need to perceive a specific, articulable threat.

Trumpet this legal conclusion too smugly, though, and you’ll sound like Mel Gibson opining on pedantic points of tax law under the Third Reich. Lawyers may nod in agreement or critique your argument, but most non-lawyers will look at you like (a) you’ve missed the point, and (b) you’re a monster.

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There’s nothing new about lawyers arguing amongst themselves, and getting lawyers to fit in nicely with other civilized humans is above my pay grade, if not beyond all reason. My concern here is this: The bare fact that we can have a serious, nontrivial debate about settled law in this area is troubling.

In the video, Bland and Encinia both drop legal buzzwords. One might charitably assume that both believed that the U.S. Constitution and the laws of Texas were on their side, not the other’s. So too can we charitably assume the good faith of many people who disagree about the video.

If it’s that hard to find consensus about the laws governing traffic stops in this case, do we really expect that most citizens have an easier time knowing their rights when they’re pulled over themselves?

It shouldn’t take Orin Kerr to figure out how to behave during a traffic stop. It shouldn’t even take a middling law student in the Crim Pro portion of a BarBri course. Dissecting borderline or extraordinary fact patterns is fine. Ordinary citizens not knowing whether they ordinarily have to let cops search the backseats of their cars or probe their vaginas and anuses by the side of road is decidedly not fine.

Traffic stops are among the most common encounters with law enforcement that most Americans will have. If the average citizen in our Constitutional republic has no clue what their rights or duties are during these commonplace encounters with law enforcement, then we’re doing it wrong.

My grandmother used to say, “It’s often nice to be right, but it’s always right to be nice.”

That’s sweet, though probably a bad way to organize a free and civil society.

Similarly, pragmatists argue that a prudent citizen, sufficiently interested in her own survival, ought to be calm and conciliatory to police officers during traffic stops. If she believes that a cop is violating her rights, she ought to quietly endure the indignity or inconvenience in the moment, then contact a lawyer later. She is, while in police presence, nice, even if she thinks that she is right and the officer is not.

Perhaps a nice citizen doesn’t mouth off to a cop about knowing her rights. Perhaps she tries not to be stubborn about Fourth Amendment technicalities. While she’s at it, perhaps a nice citizen tries not to be black.

These operating principles may, indeed, be adaptive, and they may, indeed, keep you out of many scrapes with cops. When you think about it, though, they’re pretty sh**ty things to have to teach kids in a civics class. Universalize that sort of obeisance and you’ll find a world with more civil rights lawsuits, but even more civil rights violations.

If a citizen chooses to stand up for her civil liberties during a traffic stop, maybe she should think twice about whether doing so might make her late getting home for dinner or have to pay a speeding ticket she could have gotten a warning for. She shouldn’t have to think twice about whether exercising her rights might get her battered or abused or arrested or worse.

Generally law-abiding citizens may never be arrested for a violent felony. But most folks will, at least once in their adult lives, be pulled over for allegedly speeding or cruising through a yellow light or driving with a blown tail light. Or, in Sandy Bland’s case, failing to signal a lane change.

When that happens, they should know what the law requires they do or not do. Not just what etiquette, expedience, or fear require.

Earlier: The Questions About The Death Of Sandra Bland That Still Need To Be Asked

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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