Justice

A Lawyer Gave Us the Blunt Truth About Sandra Bland's Arrest

On July 10, Sandra Bland was pulled over by Texas state trooper Brian Encina, for failing to signal a lane change. On July 13, while in police custody as a result of said stop, she was found dead.

Officials from the Waller County jail where she was being held say she hanged herself in her cell. Her family disputes the claim, saying Bland wouldn’t have killed herself. She had recently landed a new job at her alma mater, Prairie View A&M University, and was in good spirits.

For many, the details of Bland’s death don’t seem to add up. Waller County’s long history of racial tension only complicates the matter—raising the question of whether Bland was a victim of discriminatory practices.

On Tuesday, dashcam video of the July 10 stop was released. Following the release of the footage, ATTN: spoke with California-based attorney John Hamasaki for his particular analysis of the video from the viewpoint of a criminal defense lawyer. Hamasaki specializes in defending those who are facing criminal charges or an investigation; he has built his practice with a focus on defending constitutional protections in criminal cases implicating civil rights and civil liberties.

 
Here is the dashcam video footage of Sandra Bland's arrest.

New police dashcam video reveals how the Sandra Bland arrest escalated. The full video can be viewed here: http://bit.ly/1MHb4IZ

Posted by ATTN: on Tuesday, July 21, 2015

It is important to note that Hamasaki, like the rest of us, is responding to the dashcam video made available, and he is not making a judgment based on any potential state-specific laws.

This interview has been edited for length and clarity.

ATTN: Can you walk me through the video? What are a citizen’s rights during a routine traffic stop?

John Hamasaki: The principal right that controls all police-civilian encounters is the Fourth Amendment right to be free from unreasonable searches and seizures. It’s essentially the right to be left alone. The stopping of a vehicle is a seizure of your vehicle and your person, and therefore officers have to fulfill certain legal obligations in order to detain you. They can’t just stop you, and harass you--even though they sometimes do--legally without reasonable suspicion that a crime has occurred or is occurring.

However, if they have reached that threshold of reasonable suspicion, they do have the right to conduct a temporary investigative detention. So if police see somebody doing what they believe is a violation of the traffic law, they have the right to stop you, detain you--but they only have the right to detain you for the time that it’s necessary to execute the duties relating to the investigation of the traffic incident. For the detention to extend beyond that point, there needs to be additional reasonable suspicion to prolong the detention or probable cause to eventually arrest you.

If an officer tells you to pull over; you’re required to pull over. Whether or not they’re acting lawfully is a secondary question. Sandra pulled over; she followed the law; she did what she was supposed to do. She provided her information-- and you are required to identify yourself so that the officer can conduct the investigation.

Again, there are different laws throughout the country regarding some of these issues, so what I’m going to speak to is over general constitutional principles, and not specific state laws.

After Officer Encina pulls her over, he has the right to resolve the issues of the traffic violation he observed. That’s through identifying her, and she cooperated in that. That’s through writing her the ticket, or the warning, which he was able to do. He ran her for any wants or warrants, and he returned and issued the citation.

At that point, the question is, what’s his legal right to continue her detention? Why is he allowed to keep her there by the side of the road? So, the first problem that I see-- and I’ve watched it twice, but I may have missed some details or intricacies-- but I don’t know what exists at the point where the confrontation begins that allows him to continue the detention. Meaning, why is he allowed to keep her there? There’s no basis under the facts as seen in the dashcam video to order her to put out her cigarette. Then the question becomes, what happened there? What happened is, there’s a term we hear in the criminal law field-- “somebody failed the attitude test.” And when somebody fails the attitude test, things escalate. Again, there is no “attitude test” that’s permissible as a basis for police encounters, meaning police officers don’t get to harass you because you have a bad attitude, or you don’t show them the proper deference.

You see in that moment where he orders her to put out her cigarette, a breakdown in police training. Basically, being a police officer, you’re going to run into people having a bad day, not wanting to engage with you, not wanting to chat and not wanting to continue an encounter beyond the legally permissible scope of the encounter. And that’s what happened here. She’s allowed to leave at that point, and he’s like "hey put out your cigarette." He has no lawful basis to order her to do so under the facts of this case. If she was doing something that was interfering with him conducting the traffic stop, the officer may issue a lawful order for her to stop doing that. But officers continue encounters with people smoking cigarettes all the time. She’s not doing anything unlawful, she’s not doing anything that increases the danger to the officer. But beyond that, the question becomes, why is he telling her that? Why is he telling her to put out her cigarette? What is his lawful authority to do so? Because his right to detain her ended the minute he was done with his traffic investigation and written the ticket or warning. At that point, the detention became unlawful. At that point, he is no longer acting in his capacity as a police officer, rather he is just a man in uniform harassing a woman stopped alone in her car by the side of the road.

Again, this is where the Fourth Amendment controls the encounter. Once the investigative detention relating to the traffic stop was complete, he had no basis to detain her, no basis to order her to put out her cigarette, and no lawful basis to order her out of her vehicle.

ATTN: So Ms. Bland was not in the wrong by refusing to get out of her car?

JH: The question there becomes, is the officer’s order lawful? What crime is he investigating, is there a lawful basis to detain her there by the side of the road at this point? If it is a lawful order for her to step out of the vehicle, she does have to follow it. But I haven’t seen any basis in the dashcam video for the detention to continue at this point.

So breaking it down further, we have a woman stopped by the side of the road. Alone with a police officer who is making unlawful demands of her. You dont have to obey an unlawful order, but on the other side of it, with what amount of force can you resist an unlawful order? Because, it is important to remember that you still have the right to defend yourself against a police officer’s unlawful actions.

ATTN: Really?

JH: Yes. If an officer is behaving unlawfully, you can use a reasonable amount of force to defend yourself. You can’t punch an officer in the face if he tries to handcuff you--that’s not reasonable. But your ability to defend yourself exists regardless of an officer’s badge. The issue that always comes up with that is that whatever your right, it’s a hard right to enforce. There’s usually not a video tape, and there’s usually an officer saying, “this person resisted,” or something like that and it can get rather challenging in law enforcement cases.

Then, he starts pulling a Taser and threatening to tase her.

ATTN: Can I just back up one second? Referring to the moments before she actually gets out of the car-- when he is trying to physically remove her, and from what we can see it seems that she’re resisting. If this is an unlawful arrest, and it seems as though it may have been--she’s allowed to resist, or she’s allowed to defend herself from his attempted physical removal. Is that right?

JH: The question there is, what is he doing? What is his lawful justification to drag this woman out of the car? Why did each step of the way have to escalate to that point? Can she use physical force to resist? Yes. The officer lost control, and I think that’s the overarching issue and the core of where things went wrong. Officers ostensibly go through training to deal with the potentially stressful situations in which they find themselves-- when they may feel disrespected or demeaned, when they don’t feel like people show them the right amount of deference-- and they’re required to conduct themselves with professionalism. This officer lost his professionalism, and began behaving unlawfully, starting with the order to put out the cigarette.

When she would not submit to his unlawful order, he escalated the situation to the point of using unlawful force. He has no right to put his hands on her, and I’m speaking from my view. I haven’t heard his justification yet, but there doesn’t seem to be any basis for him to put his hands on Sandra Bland. Yes, she talked back to him, maybe she made him feel bad. You know what, you’re a professional; that’s your job.

Whether or not it’s a department wide issue, or a city wide issue, or a cultural issue, or if it’s just one officer-- this officer is clearly in the wrong.

ATTN: In terms of professional conduct?

JH: In terms of professional conduct, but also in terms of putting your hands on somebody who does not want hands put on them. That is a crime. He does not have the right to put his hands on her. Because he’s an officer, you have to go through the legal justification at every step of the process, at each action that takes place, and that’s why it is important to break things down step by step.

If he saw a traffic violation, and he wanted to issue a citation or a warning, he had a right to do that. Beyond that, he had no right to escalate things, and he had no right to put his hands on her. And I think that’s how we need to reorient the thinking. Officers putting their hands on citizens is something that, historically-- and because it’s mainly citizens of color who police put their hands on-- has been to a degree accepted by society as a whole. I think that’s something we need to rethink as a society. To what point is it acceptable? And if it’s not acceptable, what do we do about it?

But here, I can’t figure out what right he had at every point starting when he begins to tell her to put out her cigarette. Take a moment to imagine that is just another person at that point. Not a law enforcement officer, but just a man trying to order a woman to put out her cigarette. And when she won’t submit to his authority, going into the car and attacking her.

It’s hard, because I feel like as a society we’ve been trained to be obedient to law enforcement, but the idea with that is that the officers are going to treat people fairly, they’re going to maintain professionalism, and they’re going to obey the law themselves and enforce the law fairly. But when that’s not being done, does she have a right to be upset? Yes. Does she have a right to speak out? Absolutely. Did she use the best words? You know what, they were the words that came out of her mouth at the time, and she had just been jacked up, pulled out of the car, probably had her cigarette mashed up in that process, and the officer threatened to “light her up.” People say, “but it was a taser.” Well, I don’t know if she knew that, but “lit up” can mean “shot up,” so I don’t know what impression was given to her. But she went through, I think, a traumatic experience. People want to say, “look how rude and mean she was.” You know what? She just got pulled out of her car for no reason.

Cases like that happen all the time--somebody talks back to an officer, all of the sudden the officer says, “get out of the car,” and the person refuses. These things can start over nothing. I think one of the things we need to think about is, what is the “nothing?” Why do they escalate?

And that’s what is kind of hard for people who are law enforcement inclined and in law enforcement themselves to understand. We as citizens--we are not required to be polite to police. We should be polite to everybody just because I think it’s nice to be nice to people.

If a cop’s having a bad day, and imposes it on you, then you don’t have to bow and submit. You’re within your rights to express yourself as long as you do it lawfully. And the submission to authority I think is sort of a broader problem--the idea that we would accept that. In this case, though, I think it’s pretty clear. What’s the rationale? And there’s not one. You have no right to put your hands on me.

People accept that, even though it’s not lawful. You know, “he’s an officer,” “officers have hard jobs,” which may be true in certain circumstances, but that’s why they’re trained, that’s why they’re supposed to be professional.

ATTN: That expectation of compliance is a pervasive mentality. I think it’s important that people who are involved in the criminal justice system acknowledge that, for example there is no legal reason for compliance in unlawful arrests. Then, the way we think about power and control might shift.

JH: The Fourth Amendment is essentially the right to be left alone. We have a right to go about our days and live our lives, but that right seems to be accorded in different ways to different populations. It’s nice to talk about compliance from the safety of your suburb when you’re not the one getting searched and harassed, and when people say, “Oh well she shouldn’t have talked back to the officer!” you know what, at a certain point, everybody has had enough. That’s a harder discussion to have. It’s something that, perhaps, certain people can’t see.

The question of whether or not police killed her--I don’t know that there’s any evidence that anything happened other than what’s been told, because nobody has said anything. They said she hung herself. So let’s ask a question we can answer: Why was she in jail? She was in that position, in that jail cell, because of unlawful police action. She spent three days in there that she didn’t need to spend, in a jail, in a cell, which is not a pleasant place to be, and if she took her own life--which again, I don’t have any evidence one way or the other--who put her there? Who put her through this ordeal? Why did all of this have to happen? Because she didn’t properly show the amount of deference and respect the officer wanted.

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