The Sandra Bland video demonstrates how knowing a little about your rights can be just as dangerous as not knowing them at all

Attorney Phil Gommels

sandra_blandAnother police interaction video has gone viral this week.  This time it wasn’t a cell phone camera.  Instead, the video comes from the Texas Department of Public Safety State Trooper’s own dash-mounted camera. 

The video shows Sandra Bland, a black woman, being pulled over by white State Trooper, Brian Encina for allegedly failing to signal a lane change.  The interaction seems to begin pleasantly enough.  Trooper Encina seems to notice something about Ms. Bland and asks, “what’s wrong?”  Her responses are virtually inaudible, but he asks simple questions in a pleasant manner: “How long have you been in Texas?” “Do you have your driver’s license?”

He returns to his squad car.  After a few minutes he walks back up to Bland’s car.  That’s when things start to go badly.  Trooper Encina asks, “You okay . . . You seem irritated.”  Bland responds, “I am.”  Then she does something that no criminal defense attorney would ever recommend.  She emotionally unloads on the officer.  She takes an angry tone and starts to explain why she’s frustrated with the officer. 

Bland’s abrasive response seems to wear on Trooper Encina.  He asks, “are you done?”  Then he asks her to put out her cigarette.  She tells him, “I’m in my car.  Why [do I have to] put out my cigarette?”

Trooper: “you can step on out now”

Bland: “I don’t have to step out of my car”

Trooper: “Step out of the car.  Step out of the car”

Bland: “You don’t have the right . . . ”

Trooper: [escalating]

This escalates until Trooper Encina opens Bland’s car door and reaches in to pull her out, saying, “I do have the right.  Now step out, or I will remove you.”

Bland: “Don’t touch me.”  [Trooper jumps back like he’s being attacked]  Don’t touch me.  I’m not under arrest.  You don’t have the right to touch me.”

Trooper: “You are under arrest.”

Bland: “I’m under arrest for what?”  [Trooper radios for help]

The struggle continues for another few seconds as Bland demands to know why she’s being arrested and the trooper commands Bland out of the car. 

The standoff ends with Trooper Encina pointing his tazer at Bland and screaming at the top of his lungs, “I will light you up!  Get out of the car, now!”  Bland exits the car, stunned.  “Wow!” she says as she walks past the Trooper shielding her face with her cigarette-holding hand.  As she’s ordered to step off-camera she says what everyone’s thinking: “you’re doing all of this for a failure to signal?” 

While off camera, the Trooper tells Bland to get off her phone.  She explains that she’s recording the officer and that she has a right to do that.  Shouting, he orders her to put the phone down.  Indignantly, Bland returns on screen to place her phone on the trunk of her car with a thud.  Then she disappears off-screen again while the Trooper orders her to, “come over here.”

The two get into another battle of wills as Bland first repeats to the officer, “you feeling good about yourself?” then insists on knowing why she’s being arrested.  The Trooper, equally persistent, demands that Bland turn around and put her hands behind her back. 

The two continue to argue.  At one point, Bland says, “you about to break my [expletive omitted] wrist.”  Then she appears to scream in pain. The Trooper yells, and Bland appears to cry.  “You knock [sic] my head into the ground.  I got epilepsy.”  All of this takes place off-camera. 

Trooper Encina says, “I want you to wait right here.”  Bland says, “I can’t go nowhere with your [expletive omitted] knee in my back.”

Then Trooper Encina repeatedly orders someone off camera to leave.

Finally, almost fifteen minutes into the video, Trooper Encina tells Bland that she’s going to jail for resisting arrest.

As she screams both in pain and frustration, Bland can be heard talking to someone. “Thank you for recording,” she says.

At 16:10 into the recording, Trooper Encina returns on screen with two other law enforcement officers and explains, “she started yanking away and then kicked me, so I took her straight to the ground.” 

All three start to search Bland’s car. 

One law enforcement officer asks Trooper Encina, “You hurt?”

“No,” he replies.

All this for a traffic ticket?

Generally speaking, each of us in the country has the right to freedom of movement.  (I purposely avoid here saying, “citizens,” because the Constitution applies to everyone in America, regardless of immigration status.)  If we’re walking down the street, a law enforcement officer has the same right as anybody to talk to you.  But you have the right, same as with anyone, to keep on your way and ignore him. 

That’s not true though if an officer has reasonable suspicion that you are involved in a crime that has occurred, is occurring, or will soon occur.  That crime can be something as serious as an armed robbery, or as minor as a traffic offense.  In fact, ordinarily, police detentions (and that’s an important word to know:“detention.” It means a temporary restriction of movement; you’re not free to go) begin with a traffic infraction. 

Here, Trooper Encina probably didn’t have reasonable suspicion to pull Sandra Bland over to begin with.  And she seemed to know that.  But you have to watch the video closely to see why.  Trooper Encina repeatedly cites “failure to signal a lane change” as his reason for stopping Ms. Bland.  But at one minute and fifty six seconds into the video, Bland can be seen driving through an intersection where the road goes from one lane to two.  She doesn’t signal.  But she doesn’t change lanes either.  The traffic stop is bogus.

And Bland seems to know it.  Early in the stop when she’s explaining why she’s frustrated, she tells Encina that she saw him behind her, and she got over to the right to let him pass.  And instead she found herself detained.

So what happens to the officer?  He should get in trouble for pulling her over for no reason, right?  Wrong.  The remedy for constitutional violations like this is something called the “exclusionary rule.”  It means that if a judge agrees with me that the officer lacked a Constitutional reason for pulling Bland over, he can’t use any evidence gathered afterward against her. 

Here’s how that would play out.  Bland, now charged with a crime (resisting arrest or assault on a public servant) would have to hire a lawyer, or ask for one to be appointed if she can’t afford one.  Hopefully her lawyer would snap to this issue and file a motion to suppress.  After a hearing (that usually runs together with trial), if the judge agrees with her lawyer, the judge grants the motion and the prosecution is out of evidence.  The case gets dismissed.  But nothing happens to the officer.  Usually he doesn’t even get a reprimanded). 

Bland could file a lawsuit against the Trooper and the Department of Public Safety for money damages for the temporary deprivation of her freedom under 42 U.S.C. Section 1983.  Claims under that law are often just called, “1983” civil rights claims.  They’re tough cases to win.  And damages would probably be negligible for just a temporary detention.  Often claims for something like this go unfiled. 

So what should Bland have done?  What should you do if you find yourself pulled over by the police without justification?  Be polite.  Assert your right to remain silent (politely), and remain silent.  Remember, anything you say can, and will be used against you.

But he opened her car door and dragged her out.  Can he do that?

Yes.  Weirdly, you can be arrested for every traffic infraction in Texas other than speeding and driving with an open container of alcohol.  That’s in spite of the fact that traffic-level offenses are punishable by a fine only.  They’d have to take you down to the station, book you, and release you. 

Police don’t usually do it.  Except in two circumstances: when you refuse to sign the promise to appear, and when you make them angry.  Trooper Encina should have just issued Ms. Bland a ticket.  Instead he got angry and chose to arrest her.

So what should you do?  Try not to make the police angry.  Remain calm and polite, while insisting on your right to remain silent.  (It seems like silence alone should be enough, I know.  But the Supreme Court in a relatively recent decision told us that we actually have to affirmatively assert this right by saying something.)

Hey!  But they need a warrant to open my car door, right?

Wrong.  If the officer has probable cause to believe that you’ve committed one of those arrestable offenses, he can take you in.  Additionally, if he says he had a reasonable concern for his safety, then he’s authorized to pull you out and check for weapons under the same line of cases as “stop-and-frisk”: Terry v. Ohio, 392 US 1 (1968).

That includes entering your car to get you.  He still can’t search your car without a warrant though, unless he has probable cause to believe it contains specific evidence of a crime, he sees something illegal in plain view, or he’s having the car towed—in which case he has to “inventory” the car in anticipation of possible future claims of theft or damage.

So what should you do in this situation?  If a police officer orders you out of the car, he probably believes he has probable cause for an arrest, or at least reasonable suspicion for an investigative detention that requires you to get out of the car.  But ask him anyway, politely, for an explanation.  Ask, “am I under arrest?” or “am I being detained?”  and “why?”  Be aware that many police officers take these questions as challenges to their authority. 

Bland knew just enough here to be dangerous.  Instead of asking politely whether she was being arrested, she insisted she wasn’t under arrest and resisted efforts to arrest her lawfully—overkill or not.  Don’t do that.  Cooperate with officers’ attempts to arrest you if they say you’re under arrest.  Let the lawyers sort it out later. 

He made her put her phone down and stop recording.  Can he do that?

No.  Despite the best efforts of some Texas legislators this session who tried to make it a crime to record police officers, it’s still legal—as long as you don’t “interfere with the officer’s public duties.”

You are within your rights to record the police throughout the interaction, and I recommend it.  This also often provokes officer’s anger.  Continue to be polite.  If you’re being arrested don’t resist.  If you have a friend with you, ask him to record the interaction. 

The ACLU’s California branch has developed a smartphone application (https://youtu.be/zrjJI1bBalM) that you can find here https://www.mobilejusticeca.org/.  It automatically uploads to the ACLU so that if the police take your phone and destroy it or delete the video, the evidence isn’t destroyed.  For now it’s only available in California, but I have to believe that the ACLU will expand this service soon.  Watch for updates.     

She’s being arrested for resisting arrest?

I know.  Weird, right?  Much to the disappointment of Texas criminal defense lawyers, it’s oddly common for police officers to arrest people for resisting arrest.  I wrote about it here: http://houstoncriminalattorneylawfirm.com/pool-party-in-mckinney-leave-one-man-charged-officer-out-of-work/.

Don’t the police have to tell you why you’re being arrested?

Sort of.  In Texas you have the right to be brought in front of a magistrate to be informed of the charges against you.  You should insist anyway that the police tell you why you’re under arrest.  Here, the answer to that question was sort of in flux.  At first Bland was under arrest for the little traffic violation that wasn’t: failing to signal a lane change.  Then, as she resisted, she was ironically under arrest for resisting arrest.  Finally, by the time the Waller County District Attorney’s Office made a charging decision, she was under arrest for assaulting a police officer.

Can the police hurt Bland like that?

Maybe.  The police are allowed to use force when making an arrest.  Trooper Encino was clear that Bland was under arrest.  But the force has to be proportional to the circumstance.  Officers get a lot of leeway on this, especially in Waller County.  So even though any objective viewer may be shocked by the way that Trooper Encina escalates the situation quickly—even pointing his Taser at Bland—in State court, there would probably be no help for Bland.  A federal court may see things differently in a 1983 action, but again, those cases are difficult to win.

So the baby probably gets split here—maybe 80/20 in favor of Trooper Encina.  Maybe even 90/10.  Likely no judge in Waller County would have found Encina’s force excessive—even though the video clearly shows that Encina escalated the situation rather than calming it.  But on the other hand, DPS did say publically that Trooper Encina, “violated its courtesy policy.”  Take that, Trooper Encina!

Did Sandra Bland assault Trooper Encina?

We’ll never know.  That very likely would have been the subject of a trial.  A trial in which a sharp lawyer would have filed a motion to suppress that may have prevented a jury from ever reaching that question.  But say the evidence wasn’t suppressed, and the jury did answer that question.  Here’s something to think about. 

Bland was charged with assaulting a public servant under Section 22.01(b)(1)—a third degree felony punishable by 2-10 years in prison and up to a $10,000 fine.  To prove the case, the prosecution would have had to have proven beyond a reasonable doubt that Sandra Bland intentionally or knowingly caused bodily injury to Trooper Encina, knowing that he was a public servant lawfully discharging his duty.   

A good defense might have focused on two of those elements.  First, Bland doubted whether Encina was lawfully discharging his duties.  That is evident throughout the video. 

But maybe more important, the defense might have focused on bodily injury.  In my days as a prosecutor, my colleagues and I were fond of defining “bodily injury” to a jury by saying, “ouch is enough.”  In other words, the term (defined in Section 1.07(a)(8) of the Texas Penal Code) means, “physical pain . . . “  But in direct contradiction to any claim of physical pain, when asked on video by another officer whether he was hurt, Trooper Encina said, “no.” 

Finally, whatever force was used by Bland, a jury would need to take into account the escalation and use of force by Trooper Encina.  While it’s not a legal defense, sometimes juries decide to find defendants not guilty—even though they believe the state proved the elements of the crime—for common sense reasons, or based on what they feel is the right result.  It’s called “jury nullification.”

In other words, Bland probably would have beaten the rap.  But she couldn’t beat the ride.  But for what came next, we probably wouldn’t know Sandra Bland’s name.  Instead Bland mysteriously died in the custody of the Waller County Jail three days later.  Despite First Assistant Warren Diepraam’s assurances that her death was a suicide, the death remains clouded by unanswered questions.  In tomorrow’s part two of this post, I’ll address Bland’s death and Waller County’s response. 

For now, take this as an opportunity to learn from a fallen comrade.  Know what your rights are, and what they are not.  And be prepared to assert your rights politely and respectfully.  Because the consequences couldn’t be higher.

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