In this week’s Elon Law Now faculty commentary series, Professor Mike Rich examines legal issues involved in the nationally prominent confrontation between Sandra Bland and Texas state trooper Brian Encina. In his commentary, Rich explores whether current law relating to law enforcement powers reflects society’s moral sense on matters of police conduct.
Professor Rich’s commentary follows:
“On the afternoon of July 10, Brian Encina, a white male Texas state trooper, pulled over Sandra Bland, a black female, for failing to signal a lane change. The stop escalated into a physical confrontation, and Encina arrested Bland for assaulting a public servant. Three days later, Bland died in jail, a death that the coroner has ruled a suicide. After her death sparked an uproar, the Texas Department of Public Safety released a 52-minute dash-cam video of her arrest (https://www.youtube.com/watch?v=CBh3wzXd3vg). (Focus on the span from 8:45 to 15:00.)
“The video only added to the outrage, as viewers on one side see a citizen at fault for failing to show proper respect to authority. On the other are those who see a police officer abusing his authority as revenge for Bland’s insults to his overinflated ego. And those in the middle will find both parties to have been at fault, as either Bland or Encina could have prevented the confrontation. For her part, Bland fails to tamp down her anger or irritation over being stopped, does not comply promptly to Encina’s orders, and verbally challenges Encina throughout the video. Encina, in turn, continually escalates the confrontation by ordering Bland from her vehicle and demanding her repeated compliance with his orders, all while letting his anger be visible and failing to respond to Bland’s questions.
“Many of those outraged by Encina’s actions are sure that he must have broken the law, but they’re wrong. Simply put, Encina acted lawfully (with perhaps one exception), and Bland did not. Under the Fourth Amendment, Encina could stop Bland for a moving violation (like failing to signal a lane change) and order her out of the vehicle. Bland, on the other hand, broke the law by refusing to comply with Encina’s lawful order. Once she did that, Encina lawfully arrested her and could use the force necessary to effectuate that arrest. And again, Bland broke the law by doing anything other than acquiescing to the arrest. (Encina likely broke the law by ordering Bland to stop filming him with her cell phone, though that question is not definitively settled in Texas. Under the Supreme Court’s qualified immunity rulings, this means that Bland would have had no recourse even if the order were unlawful.)
“So what does this tell us? This case reveals a striking imbalance of power. Law enforcement officers like Encina have enormous discretion: they can stop who they want (so long as the person commits any traffic offense no matter how minor), they can order that person out of a vehicle if they want, they can issue any ‘lawful order’ they want, they can arrest the person if they want, and they can use whatever force they believe is reasonably necessary to make that arrest. Citizens like Bland have little discretion: they must do whatever the officer says or face arrest and, possibly, violence.
“Some might say that Bland was in the wrong simply because she broke the law. But that argument assumes that law and morality are equivalent when they’re not. Law is secondary to morality and should regulate conduct in a manner consistent with society’s moral sense. Yet a sizable chunk of Americans don’t agree with the system that the law has created, one in which Bland’s case is unique only because it’s gotten attention. That system is set up to lead to arrest of Bland and people like her who, for whatever reason, are not happy with acquiescing to the unexplained or even capricious ‘lawful orders’ of a police officer.
“Figuring out the right balance between officer discretion and respect for citizens won’t be easy, but the first step is to recognize that there is something wrong with a legal system that says that what Encina did was alright.”
Michael Rich began his legal career at the New York City law firm of Hughes Hubbard & Reed LLP, where his practice focused on the litigation of claims under the First Amendment seeking access to public property and public accommodations. Rich’s current research focuses on crime prevention technology, with recent publications in the Harvard Journal of Law and Public Policy and the Connecticut Law Review. His article, “Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment,” is forthcoming in the University of Pennsylvania Law Review. In addition, Rich’s scholarly interests include the philosophical boundaries of criminal law, civil and criminal white-collar litigation, police investigatory methods, and government fraud. Rich received his J.D. from Stanford Law School and a B.A., magna cum laude, in Physics and English from the University of Delaware.
Elon Law Now is a faculty commentary series on legal news and current affairs.