By now many of us have viewed some or all of the video of the stop and arrest of Sandra Bland by a Texas law enforcement officer following Bland’s failure to signal a lane change. We now also know that Bland died in a jail cell in southeastern Texas less than three days later.
Viewing the video is an emotional experience. It makes your blood boil to witness how Bland was treated by the officer. At least it made my blood boil. Officer Encinia was rude. He was threatening. He pulled a weapon during a minor traffic stop. He lied to dispatch. He refused to answer Bland’s understandable questions. His conduct appeared to have been entirely unreasonable, over the top and designed to escalate the situation. Like many who have viewed this unprofessional exhibition, I want so badly to take Sandra Bland’s side. And, I do, emotionally. But, legally the chips may end up on the other side of the table.
Let’s begin with the reason for the stop. Some have argued that failing to signal a lane change on a quiet road during light traffic conditions should have been ignored and should not have resulted in a stop. Sorry. Making an improper lane change is a traffic violation, whether on an interstate highway or a quiet suburban street. It does not require heavy traffic, high speed or any other external circumstance. Officers have discretion in whether to make a stop for this infraction, but exercising or not exercising that discretion is up to the officer, not the chattering classes.
Bland is asked if she is irritated and responds honestly that she is. This looks like the officer is attempting to set her off, but she handles it well, and the stop proceeds. The next point of conflict is the officer asking her to put out her cigarette. Some people taking the officer’s side claim that she was blowing smoke in his face, but I see no serious evidence of this. What is of greater importance is that a burning cigarette can be used in dangerous ways to burn an officer or in an attempt to put out an eye. It is not an unreasonable request given the number of officers who have been attacked during traffic stops historically; more on that in a bit.
He then orders Bland out of the vehicle. At first blush this seems unnecessary, and it probably is. But, it is well within the law. This was decided in 1977 in Pennsylvania v. Mimms by the United States Supreme Court. The 6 – 3 decision concluded that an officer could order a driver to exit a vehicle during a routine traffic stop. Doing so, the Court reasoned, was justified by officer safety, while the inconvenience to the driver was de minimus. The Court noted the significant number of officers who had been shot, maimed or otherwise injured by people from inside cars during traffic stops, and that the officer could more clearly see the full person and assess the situation for safety reasons if the person had exited the car. Like it or not, Mimms is the law, and it has been upheld and expanded. In Maryland v. Wilson, the Supreme Court extended the Mimms rationale to include ordering passengers out of a vehicle during a traffic stop.
The point of this is that the officer’s instruction to Bland to exit the vehicle was a lawful order as he asserts in the video. Yes, his attitude sucks, but his order is lawful. It has been reported that, in Texas, failure to obey the lawful order of a law enforcement officer is a criminal offense, subjecting the person to arrest. Most states have some variant of this. Whether this should be the law, or whether this law should be subject to exceptions, is a matter of opinion. I simply inform that it is reported to be the law in Texas. So, when he tells Bland that she is under arrest, he has probable cause to do so for failure to obey.
And, he doesn’t have to tell her why she is under arrest. Actual charges are the responsibility of the prosecutor, not the police officer. In this case she was charged with assaulting a public safety officer and resisting arrest. Whether she is guilty or not guilty is a matter for the judicial process to determine. Failure to obey a lawful order was not part of the charging instrument.
Did the officer employ excessive force? This is an area where there could be some liability on his part, in my opinion. Pulling a Taser and threatening to “light you up” is clearly beyond the scope of what appeared to be necessary under the circumstances. Whether it was unlawful, given that the Taser was not used, would be a matter for a jury to decide, likely in a civil rights prosecution, or a civil rights civil lawsuit. Better practice would have been to wait for back-up to arrive and to have kept the Taser holstered. But, best practice is not required.
Does the law, as enunciated in Pennsylvania v. Mimms and Maryland v. Wilson need to be changed? Absolutely, in my opinion. There are particular concerns about persons pretending to be police officers and forcing people out of their cars to rob, beat, or more often than we like to admit, to abduct and rape female drivers. Adding a requirement that a back-up be involved before a person is ordered to exit a vehicle would do no harm to the Court’s opinion, for example. Personally, I’d like to see the Court itself re-examine the Mimms line of thinking and put in place some requirement like reasonable suspicion of a threat to officer safety as a precondition to an order to exit, though our current Supreme Court is not likely to go there.
A secondary question is whether this particular officer should remain in law enforcement. I think not. The bullying behavior and threatening seen and heard in the video speaks plainly of a person not psychologically fit to carry a badge as well the authority, and ability to abuse that authority, that goes with it.
Note: The author is not licensed to practice law in Texas and representations of Texas law are based on media reports, not personal expertise or experience.
Second Note: For a largely concurring legal analysis, see this NYT piece.
Third Note: Failure to comment on the cause of death and failure to comment on the racial implications of the case are beyond the scope of this article.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.