Sandra Bland arrest: Her detention was legal, but Encinia used excessive force.

Asking Sandra Bland to Get Out of Her Car Was Legal. What Happened Next Likely Was Not.

Asking Sandra Bland to Get Out of Her Car Was Legal. What Happened Next Likely Was Not.

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July 22 2015 12:36 PM

Asking Sandra Bland to Get Out of Her Car Was Legal. What Happened Next Likely Was Not.

Screen Shot 2015-07-22 at 11.23.51 AM
A screenshot from the dashcam footage of Sandra Bland’s detention and arrest.

On Tuesday, Texas police released dashcam footage of Sandra Bland’s arrest. The video does not illuminate why Bland was found dead in a jail cell three days later. It does, however, clear up some questions about the legality of her arrest—namely, that the initial stop and detention were legal, but that everything afterward likely was not.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The rules of Bland’s stop are dictated by by the Fourth Amendment, which bars “unreasonable searches and seizures.” A traffic stop qualifies as a “seizure” of the person, so an officer can’t pull you over unless he has reasonable suspicion that you committed a crime. Here, Trooper Brian Encinia clearly had reasonable suspicion that Bland committed an offense: She changed lanes without a signal, in violation of Texas traffic law. Leaving aside the question of whether Encinia effectively forced Bland to change lanes (which she alleges in the video), the footage demonstrates that the trooper acted within the law when pulling her over.

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After detaining Bland, Encinia asked her to put out her cigarette, and Bland refused. Some outlets are reporting that Encinia arrested Bland for this refusal. But there is another reasonable interpretation of the exchange: Encinia asked Bland to put out her cigarette; Bland refused, on the grounds that she was in her own car; so Encinia asked her to exit her car in order to remove her excuse for continuing to smoke.

This interpretation keeps Encinia on the right side of the law. The trooper had every right to ask Bland to step out of her car: The Supreme Court has held that during a routine traffic stop, officers may ask drivers to exit their cars for the sake of safety, the idea being that an officer can more easily monitor someone who's standing face to face than someone who's inside a car. (In this light, it seems that Encinia probably had the right from the very beginning of the stop to expect Bland to comply with minor requests, like putting out a cigarette, that facilitated his ability to safely observe her during their interaction.) Encinia's affidavit about the arrest says his order was made so that he could "conduct a safe traffic investigation," which is legal.

When Bland refuses Encinia’s request, the tone of the encounter changes sharply. Encinia says gruffly, “Get out of the car, or I will remove you.” What was a mere detention up to this point has now almost certainly become an arrest. There is no bright-line rule to differentiate between a detention and an arrest. But the fact that Bland obviously could not voluntarily leave the encounter likely means it qualified as an arrest.

Did Encinia actually have the right to arrest Bland? Yes. The Supreme Court has found that officers may arrest people for committing the most minor of crimes, including commonplace traffic violations. And by verbally refusing to comply with Encinia’s detention, Bland resisted arrest under Texas law, thereby committing a misdemeanor. (Even if Encinia’s initial stop and detention were illegal, that wouldn’t matter: The Texas statute that bars resisting arrest declares that “it is no defense” that “the arrest or search was unlawful.”) Both of these offenses would justify Bland’s arrest. Finally, Encinia is right that he has given Bland a “lawful order”: Again, under Supreme Court precedent, he had the right to pull Bland over; to ask her to leave the car; and to formally arrest her.

But this is where Encinia’s actions veer from the lawful to the questionable—and then to the probably illegal. By leaning into Bland’s car and seemingly attempting to yank her out, Encinia initiated the use of force to “seize” her (in Fourth Amendment terms). Here, the case law is clear: The Fourth Amendment requires that the use of force during a seizure must be “objectively reasonable” and not “excessive.” To gauge reasonable force, courts weigh the severity of the alleged crime; whether the suspect poses an immediate safety risk; and whether the suspect is resisting or evading arrest.

The first two factors here weigh heavily against Encinia. As Bland repeatedly notes, her alleged crime (a failure to signal) is astonishingly minor. Moreover, Bland does not appear to pose any kind of real safety risk to Encinia or to others. Bland does verbally resist arrest, but at no point does she attempt to flee. In light of her behavior, Encinia’s actions seem objectively unreasonable. He violently grabs Bland, aims his stun gun at her, and threatens to “light [her] up,” then roughly pulls her out of her vehicle. Although part of the encounter occurs off camera, Bland verbally accuses Encinia of slamming her head into the ground.

Encinia claims he subdued Bland after she kicked him, but both the alleged kick and head-slamming occurred off-camera. If Encinia is correct, a court will have to carefully weigh the situation using all evidence available. Encinia certainly had a right to subdue Bland if she kicked him. But his response may have been so brutal as to still qualify as an excessive use of force.

Bland, of course, is now dead. Her family may still bring a federal civil rights suit against Encinia, arguing that he violated her clearly established constitutional rights. Further evidence may mitigate the apparent illegality of Encinia’s violent tactics. But the evidence so far is extremely damning.