Changing Lanes

There used to be a crosswalk near a park in South Pasadena that generated a lot of income for the city. A few days a week a patrol car would be parked nearby, and one of the local cops, dressed as a civilian, would stand on the curb, and as a likely looking car slowed for the crosswalk, and the driver looked each way to see if anyone was about to cross the street, that cop would just stand there – and as the car moved on, he’d simply put one foot in the street at the very last moment. That parked patrol car was on your bumper in an instant. You’d get an expensive ticket for failing to yield to a pedestrian at a crosswalk, and the locals knew this and avoided that stretch of road. Others, once they understood what was going on, would play games with that cop on the sidewalk. They’d come to a complete stop. The cop would stand still. They’d inch forward just a bit. The cop would move to step into the crosswalk – then the driver would hit the brakes and stop cold – the cop would pull his foot back – the driver would inch forward again, the cop would move his foot forward again, then the driver would stop cold again, and the cop would pull his foot back again. By this time you were both grinning – but you were going to get the ticket anyway. At least you could make the guy dance – but you were going to get the ticket anyway.

Everyone knows the cops always win. You pay the fine and move on. You certainly don’t get out of your car and get in the cop’s face – you might end up dead. You submit to the inevitable. Life is like that. Move on – but of course you’ll harbor a bit of rage. The trick is to swallow your rage, all of it, from every hour of every day, and to die peacefully in your sleep before the sheer mass of it makes you explode. If you’re driving through Waller County, Texas, and a cop, in a hurry flashes his lights and you move over to let him by, and he suddenly pulls you over for failing to use your turn signal to signal a lane change, you sit meekly, hands on the wheel where he can see them, making no sudden moves, and let him write you up. You thank him. Don’t thank him and he won’t like your attitude. Then you’ll really be in trouble. Everyone knows this.

Sandra Bland didn’t know this – she was pulled over in Waller County, Texas, on July 10, 2015, for failing to use her turn signal when she moved right to get out of that cop’s way – the same sort of trap those guys in South Pasadena set up long ago. Force people to get out of the way. Ticket those who don’t use their turn signal. But Sandra Bland, a twenty-eight-year old black woman, who had been a bit of a civil rights activist in Chicago, and a part of the Black Lives Matter campaign, thought this was bullshit – and said so – and she wouldn’t put out her cigarette. State trooper Brian Encinia didn’t like her attitude. He told her to get out of the car. She refused. He said he’d “light her up” with his Taser – so she ended up outside her car, on the ground, with his knee in her back. Encinia slammed her head in the ground a few times – it’s all on the dash-cam tape – but she was charged with assaulting a public servant. They took her to the county jail and placed her in a cell alone, because she was a “high risk” to others.

On Monday, July 13, 2015, they found Sandra Bland dead in her cell. Police said that she had hanged herself – their own autopsy eventually showed that, maybe. Results from a second, independent autopsy are pending. Texas and the FBI announced a joint investigation. Something odd was going on here. The Waller County district attorney’s office said that her death would be investigated as a possible murder – but a motion-activated camera outside her cell showed no recording in the hallway for ninety minutes before they found her dead. There’s not much to go on, other than she had an attitude. Encinia was placed on administrative duties for failing to follow proper traffic-stop procedures. Sandra Bland is still dead.

Heather Parton takes it from there:

The arrest and resultant death of Sandra Bland in Texas after a petty traffic stop has justifiably caught the imagination of the American public. The video of this young woman’s treatment at the hands of police – by all indications for failing to be verbally submissive – is terrifying. National reporters are shocked, and wondering just how something like this could happen in the good old USA.

But those of us who follow these stories all the time know very well that this sort of altercation happens every day in America and often results in tasering, physical violence and worse, as police officers demand total deference in both word and deed in their presence.

When citizens attempt to assert their rights, argue with officers or demand justification for being taken into custody, cops move to immediately establish their dominance and often physically force the citizen to comply, regardless of the pettiness of the alleged crime.

She then cites this:

If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you.

Parton:

That’s from an Op-Ed by a former police officer and current criminal justice professor by the name of Sunil Dutta. His argument is, of course, complete nonsense. Yes, on a practical level, knowing what we know about how police behave in this country, one would be wise to just try to get out of any dealings with a cop alive. Here’s a stop that ended with the police breaking a window and tasering a black male passenger inside the car while his kids screamed in the backseat. Here’s one in which the police thought a bike-riding black man (who happened to be a firefighter) was “throwing signs” at them. (He was just waving hello.) In the end, he got lucky. They only threatened to Taser him.

But I sure hope all those nice white conservatives who back this police behavior don’t have the misapprehension that the same thing couldn’t happen to them. This stop ended in violence between a police officer and a young white dad who was just disputing what the sign on the highway said. Here’s one with an elderly white woman who mouthed off to the cop when he stopped her for speeding. This one has disturbing parallels with the recent Walter Scott murder in South Carolina – a police officer shot a Taser in the back of a handcuffed suspect who was fleeing the scene. As with most Taser victims, she went down very hard and later died from the head injuries.

And there’s this:

A mentally ill woman who died after a stun gun was used on her at the Fairfax County jail in February was restrained with handcuffs behind her back, leg shackles and a mask when a sheriff’s deputy shocked her four times, incident reports obtained by The Washington Post show.

Natasha McKenna initially cooperated with deputies, placed her hands through her cell door food slot and agreed to be handcuffed, the reports show. But McKenna, whose deteriorating mental state had caused Fairfax to seek help for her, then began trying to fight her way out of the cuffs, repeatedly screaming, “You promised you wouldn’t hurt me!” the reports show.

Then, six members of the Sheriff’s Emergency Response Team, dressed in white full-body biohazard suits and gas masks, arrived and placed a wildly struggling 130-pound McKenna into full restraints, their reports state. But when McKenna wouldn’t bend her knees so she could be placed into a wheeled restraint chair, a lieutenant delivered four 50,000-volt shocks from the Taser, enabling the other deputies to strap her into the chair, the reports show.

Parton notes that these are just the incidents that make it to videotape, bit it’s more than that:

This happens far more often to African-Americans, who are also stopped more often and taken into custody more often on bogus charges. But it can happen to anyone, even a privileged white male who naturally thinks that it’s okay to argue and otherwise interact with a cop because: rights. Well, we all have rights, in theory. In practice, in the presence of a police officer we have none.

That’s just the way it is:

The events of the last year, starting with Ferguson, have brought into sharp focus what some of us have been observing for years, and African-Americans and other people of color have been experiencing forever. Law enforcement in this country is dysfunctional. The Black Lives Matter movement and the national attention it has brought to the issue has finally awakened the press, the political establishment and, perhaps most important, the law enforcement community. But change isn’t going to come easily.

And there is the matter of who should change:

It’s stressful to be stopped by a cop, and we don’t always behave with perfect control when we feel we’re being treated unjustly. When we have mental and physical problems, we aren’t always able to properly follow orders. And yet it’s the citizens who are being told they must behave with perfect emotional control, lest they provoke the anger of officers, who are supposed to be professionals.

Well, forget that:

When police adopted the “broken windows” strategy of citing people for lane changes without signaling and the like, they lost focus on teaching de-escalation methods. They also lost interest in professionalism, patience and psychology as necessary tools in the police arsenal. In fact, they came to believe they only need loud voices, Tasers and guns (maybe in a pinch some body armor, Humvees and some tear gas). They certainly lost sight of the common sense understanding that authoritarian tactics are anathema to a free society.

Police officers have tough jobs, nobody disputes that. Our streets are flooded with guns, which police officers’ fiercest defenders don’t seem to care about. But to paraphrase “Mad Men’s” Don Draper, that’s what the great benefits, early retirement and generous pensions are for! They deserve everything they earn and more. But the fact that the job is tough does not mean they are entitled to make citizens grovel before them and offer them unquestioning obeisance.

In fact, it’s the other way around. It’s people like Sandra Bland who are entitled to their rights, which are guaranteed under the Constitution. None of us should have to give them up simply because we’re in the presence of an officer of the law. It was to protect us from exactly that sort of abuse that the founders wrote down the Bill of Rights in the first place.

The Bill of Rights, you say? Mark Joseph Stern looks into that:

The rules of Bland’s stop are dictated 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.

Score one for the cops:

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.

Score two for the cops, but only two after Bland refuses Encinia’s request:

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.

That’s where this all falls apart:

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.

There is that, but Ben Mathis-Lilley gets to the heart of the matter:

It seems clear from the video that Encinia’s actions, not to mention his initial verbal escalation of the situation, happened in large part because he took offense at what he perceived as Bland’s disrespectful attitude – what is known in legal circles as “contempt of cop” – rather than any belief that she presented an imminent threat to anyone’s safety.

In 2010, Christy Lopez, the Department of Justice official who led the federal investigation into the Ferguson, Missouri, police department after Michael Brown’s death, wrote a paper on the subject of “contempt of cop” arrests. (Lopez’s Ferguson investigation found that officers in Ferguson had a habit of making unjustified and abusive arrests.) Lopez opens her report by noting that disagreeing with, criticizing or otherwise being verbally difficult with a police officer is behavior protected by the First Amendment. Legally, you should be able to say anything you want to an officer, or even make an obscene gesture toward the police, without fearing punishment. Practically, though, Lopez writes, “there is abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who ‘disrespect’ them or express disagreement with their actions.”

Lopez observes that since arrested suspects in “contempt of cop” cases often did very little if anything that was illegal, many of those arrests end in dropped charges and lawsuits.

And of course there are examples:

A 16-year-old in Portland, Oregon, was acquitted of charges against him in March after a judge found that police had beaten him for no reason other than he had used profanity when responding to an officer who had clapped at him to get his attention.
In 2014, the New York Post reported that only 6 percent of cases (in an unspecified time period) in which resisting arrest was the most serious charge against a suspect resulted in convictions in New York City.
An ongoing Washington, D.C., lawsuit with multiple plaintiffs accuses police of making bogus arrests under a statute that prevents “incommoding,” or blocking a sidewalk—a statute that itself was put into place after an official 2010 report found that the city’s vague disorderly conduct laws were facilitating improper “contempt of cop” arrests.
A D.C. woman won nearly $100,000 in a lawsuit in 2011 after police arrested her when she made a derisive comment toward them at a 7-Eleven.
Charges were famously dropped against Harvard professor Henry Louis Gates in 2009 after he was charged with disorderly conduct following an interaction with a police officer that began when a break-in was reported at Gates’ own home.
A 2008 Seattle Post-Intelligencer report found that nearly half of cases in the city in which the sole arresting charge was “obstructing a public officer” were ultimately dropped. (Half of the people arrested for obstruction were black; Seattle is eight percent black overall.)

And so it goes:

As the Seattle and Gates items suggest, the targets of “contempt of cop” arrests are often nonwhite. When you consider that black drivers may also be disproportionately subject to “investigatory stops,” in which minor motor vehicle violations are used as pretexts for searches and interrogations – and that Bland herself was stopped only for failing to signal a lane change – Sandra Bland’s experience in Waller County might even be considered typical…

And that attitude is real:

CNN contributor and former NYPD detective Harry Houck argued on Tuesday that a Texas woman would not have died in police custody if she had not been “arrogant from the very beginning.”…

“An officer does have the choice to bring anyone out of the vehicle when he stops them for his own safety,” Houck told CNN’s Don Lemon on Tuesday. “The whole thing here is that she was very arrogant from the beginning, very dismissive of the officer, alright?”

CNN political contributor Marc Lamont Hill pointed out that Bland did not have a legal responsibility to “kiss the officer’s butt.”

“She has a right to be irritated,” Hill said. “A lot of us get irritated when we get pulled over. This officer comes to her and says, ‘Is there something wrong? You seem like you have an attitude.’ He’s trying to pick a fight with her.”

“Sometimes police officers act as if you’re not completely kowtowing and deferential, that somehow you’re violating a law,” he continued. “This is a perfect example of how vulnerable black women are in public spaces to law enforcement.”

Houck interrupted: “Even if he de-escalated that whole situation, she would have kept coming at that officer the way she did.”

“I don’t think he baited her at all. She just wanted to be uncooperative,” Houck continued. “She had a problem with the officer, she had a problem with being stopped, she didn’t like the fact that she was being stopped. Her whole arrogant attitude.”

“I refused to legitimize police violence against people by telling them that if they behave differently, maybe they won’t die,” Hill insisted. “Harry said maybe you won’t end up on the ground. Yes, there are strategies we can use to survive. But the fact that we live in a world where we have to deploy strategies not to be murdered or killed or assaulted by police unlawfully is absurd.”

“What Harry is calling arrogance, I’m calling dignity,” Hill declared. “Black people have a right to assert their dignity in public. And just because it doesn’t cohere with what police want doesn’t mean they are being arrogant or dismissive.”

“There’s no indication that this is racial at all,” Houck shot back. “None whatsoever.”

“This happens to white women all the time,” Hill quipped sarcastically.

And so on and so forth – but the cops always win. You submit to the inevitable. Life is like that. Move on – and of course you’ll harbor a bit of rage. The trick is to swallow your rage, all of it, and hope to die peacefully in your sleep before the sheer mass of it makes you explode. But it may be too late for that now. There will be an explosion soon.