Arrest Archives - Columbia Law Review

Introduction In a now infamous incident, State Trooper Brian Encinia pulled over Sandra Bland for failing to signal in Waller County, Texas, in July 2015. In the dashcam video of the incident, you can see Encinia speaking briefly to Bland, taking her driver’s license back to his patrol car and, shortly after, returning to Bland’s car with a warning in hand for failing to signal.[footnote]For the video and a description of the incident, see Abby Ohlheiser & Abby Phillip, ‘I Will Light You Up!’: Texas Officer Threatened Sandra Bland With Taser During Traffic Stop, Wash. Post ( July 22, 2015), https://www.washingtonpost.com/news/morning‑ mix-wp/2015/07/21/much-too-early-to-call-jail-cell-hanging-death-of-sandra-bland-suicide-da‑says [https://perma.cc/8USX-JJJP]. For a transcript of the encounter, see Rachel Harmon, The Law of the Police 41–44 (2021) [hereinafter Harmon, Law of Police].[/footnote] But rather than give it to her and let Bland go on her way, Encinia asks, “You OK?”[footnote]Harmon, Law of Police, supra note 1, at 41.[/footnote] After she responds briefly, he adds, “[Y]ou seem very irritated.”[footnote]Id. at 42.[/footnote] Bland admits that she is, making it clear that, though the stop may have been lawful, she views it as unjust since she moved over only because the patrol car was tailing her closely.[footnote]See id. (“I was getting out of your way, you were speeding up, tailing me, so I move over, and you stop me, so yeah, I am a little irritated, but that doesn’t stop you from giving me a ticket . . . .”).[/footnote] Encinia isn’t happy, and the encounter takes a terrible turn when, responding to Bland’s annoyance, the officer asks Bland, “You mind putting out your cigarette, please, if you don’t mind?”[footnote]See id.[/footnote] When seen in writing, it looks like a polite request, but neither Bland nor Encinia treated Encinia’s question that way. Both saw it as a command. If Bland had believed in the legitimacy of the police generally or in her traffic stop that day, she might have put out the cigarette, received her warning, and been on her way. But she didn’t. Bland was a Black Lives Matter activist who thought—with some reason—that the traffic stop was bogus.[footnote]See Katie Rogers, The Death of Sandra Bland: Questions and Answers, N.Y. Times ( July 23, 2015), https://www.nytimes.com/interactive/2015/07/23/us/23blandlisty.html.[/footnote] Rather than comply immediately, Bland sought to clarify the officer’s legal authority to give her that order: “I’m in my car, why would I have to put out my cigarette?”[footnote]See Harmon, Law of Police, supra note 1, at 41–42.[/footnote] At that point, the confrontation intensifies. Encinia doesn’t answer. Instead, he orders her out of the car.[footnote]See id. (“Well, you can step on out now.”).[/footnote] Bland refuses, again doubting his authority. After all, he had previously suggested she would receive a warning or a ticket, and all she did was ask about the cigarette. Encinia escalates again and again, threatening to pull her from the car and to tase her, repeating, “I am giving you a lawful order.”[footnote]See id. at 42–43.[/footnote] Almost as often, Bland responds, “No, you don’t have the right.”[footnote]See id. at 42.[/footnote] The incident ends only after Encinia uses both force and an arrest to back up his demands. No one who sees the dash camera footage could think Bland’s arrest was anything but senseless. And, tragically, Sandra Bland died by suicide in jail a few days later.[footnote]See Ohlheiser & Phillip, supra note 1.[/footnote] Still, it is hard not to be struck by what drove the interaction off the rails. Encinia and Bland came to blows because they disagreed about the lawfulness of his directives—both his “request” to put out the cigarette and his demand that she step out of the car. Bland refused to do what Encinia wanted because of that disagreement. And Encinia used force and an arrest because she did not comply. The law governing Encinia’s directives was unclear, not only to Encinia and Bland but also to experts after the fact. Commentators disagreed about whether Encinia’s question about the cigarette was a request Bland was free to disregard or a command with which she should have complied,[footnote]Compare, e.g., Danny Cevallos, Opinion, Was the Sandra Bland Traffic Stop Legal—And Fair?, CNN ( July 23, 2015), https://www.cnn.com/2015/07/23/ opinions/cevallos-sandra-bland-traffic-stop/index.html [https://perma.cc/RPG6-LXRM] (command), and Reid J. Schar, Opinion, What Constitutes a ‘Lawful Order’, Hill: Congress Blog (Sept. 17, 2015), https://thehill.com/blogs/congress-blog/judicial/253939-what-constitutes-a-lawful-order/ [https://perma.cc/LX4Y-EY4Q] (same), with Orin Kerr, The Law of the Sandra Bland Traffic Stop, Wash. Post: Volokh Conspiracy ( July 23, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/23/the-law-of-the‑sandra-bland-traffic-stop/ [https://perma.cc/B5SL-ZUSD] [hereinafter Kerr, Law of Traffic Stop] (request), and Richard Winton, Can a Police Officer Order You Out of Your Car? Experts Weigh In on Sandra Bland Case, L.A. Times ( July 22, 2015), https://www.latimes.com/nation/la-na-sandra-bland-arrest-experts-20150722-story.html [https://perma.cc/X9SQ-GQKS] (same) (quoting former law enforcement officers Greg Meyer and Professor Seth Stoughton).[/footnote] as well as about what standard determines whether such an order is legal.[footnote]Compare, e.g., Orin Kerr, Opinion, Sandra Bland and the ‘Lawful Order’ Problem, Wash. Post: Volokh Conspiracy ( July 23, 2015), https://www.washingtonpost.com/ news/volokhconspiracy/wp/2015/07/23/sandra-bland-and-the-lawful-order-problem/ [https://perma.cc/DD5S-8PUM] (citing related Oregon cases and noting that “[a]n order is lawful if forcing compliance would not violate any law”), with Schar, supra note 12 (citing a New York case that instead concludes that “an order is lawful when that order is ‘reasonably designed to achieve’ its [law enforcement] goal” (quoting People v. Jennings, 347 N.Y.S.2d 818, 820 (N.Y. Just. Ct. 1973)).[/footnote] Their disparate views were based more on intuition than legal evidence, since nothing in Texas law makes either issue clear. By contrast, experts almost all agreed that Pennsylvania v. Mimms ,[footnote]434 U.S. 106 (1977).[/footnote] a Fourth Amendment case decided by the Supreme Court, authorized the officer to order Bland out of the car,[footnote]See, e.g., Cevallos, supra note 12; Kerr, Law of Traffic Stop, supra note 12; Mark Joseph Stern, Asking Sandra Bland to Get Out of Her Car Was Legal. What Happened Next Likely Was Not., Slate ( July 22, 2015), https://slate.com/news-and-politics/ 2015/07/sandra-bland-arrest-her-detention-was-legal-but-encinia-used-excessive-force.html [https://perma.cc/9V93-UQ9L]; Tamara Tabo, Sandra Bland and What No One Seems to Know About Their Rights, Above the Law ( Jan. 8, 2016), https://abovethelaw.com/2016/ 01/sandra-bland-and-what-no-one-seems-to-know-about-their-rights/ [https://perma.cc/ 38W9-3UXZ]; Winton, supra note 12 (quoting Ed Obayashi and Greg Meyer, a sheriff’s deputy and retired Los Angeles police captain, who agree that the officer’s actions were lawful).[/footnote] though that view is obviously wrong. Although the Constitution gives some powers to the President and Congress and reserves other powers for the states, the Fourth Amendment grants power to no one. Instead, it limits what states—which empower state and local police officers—may authorize police officers to do, something the U.S. Supreme Court frequently forgets.[footnote]See infra notes 43–47 and accompanying text. Though, by its text, the Fourth Amendment runs only against the federal government, it has been incorporated against the states through the due process clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27–28 (1949). [/footnote] Even Texas courts have relied on Mimms to find that officers have such authority as a matter of state law.[footnote]Facing challenges under both the Fourth Amendment and the Texas Constitution, Article 1, Section 9, which also protects against unreasonable searches and seizures, Texas courts regularly cite Pennsylvania v. Mimms , 434 U.S. at 111, and sometimes Texas cases relying on Mimms , to conclude that officers may order drivers out of cars. See, e.g., Hill v. State, 303 S.W.3d 863, 871 (Tex. App. 2009); Estrada v. State, 30 S.W.3d 599, 603 (Tex. App. 2000); Josey v. State, 981 S.W.2d 831, 840 (Tex. App. 1998). Texas constitutional doctrine does not follow in lockstep with federal search and seizure law. See Autran v. State, 887 S.W.2d 31, 37 (Tex. Crim. App. 1994).[/footnote] And even if Texas had given Encinia the power to order drivers out of vehicles during traffic stops, he still likely violated the U.S. Constitution—and perhaps Texas law—by ordering Bland out of the car after the traffic stop was effectively complete.[footnote]See Rodriguez v. United States, 575 U.S. 348, 357 (2015) (“[A] traffic stop ‘prolonged beyond’ that [end] point is ‘unlawful.’” (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005))).[/footnote] If Bland had lived, the legal status of Encinia’s commands still would not have been clarified. If prosecutors pursued criminal charges against her or she sued for damages, courts would have evaluated Encinia’s decision to arrest Bland and his use of force against her without much evaluation of the officer’s orders. And if Bland had cooperated instead, she might have gone on her way with a warning. At that point, she would have had little recourse to complain. After Bland’s death, Encinia was fired. But though the state trooper’s actions consisted mostly of commands and efforts to defend or enforce them, he was fired for failing to remain “courteous and tactful” and to “exercise patience and discretion.”[footnote]Letter from Steven C. McCraw, Dir., Tex. Dep’t of Pub. Safety, to Brian Encinia, Trooper, Tex. Dep’t of Pub. Safety ( Jan. 28, 2016) (on file with the Columbia Law Review ) [hereinafter McCraw January 28 Letter to Encinia] (detailing allegations against Encinia); Letter from Steven C. McCraw, Dir., Tex. Dep’t of Pub. Safety, to Brian Encinia, Trooper, Tex. Dep’t of Pub. Safety (Mar. 1, 2016) (on file with the Columbia Law Review ) (notifying Encinia of his termination).[/footnote] The department complained that he extended the stop inappropriately and did not follow the department’s stop script properly.[footnote]See McCraw January 28 Letter to Encinia, supra note 19.[/footnote] Yet it said nothing about either the scope or the manner of his commands. Officers who follow might not show such bad judgment, but they will be little better informed about when and how they may issue orders. The “pointless indignity”[footnote]Atwater v. City of Lago Vista, 532 U.S. 318, 321 (2001).[/footnote] and the subsequent tragedy of Bland’s arrest and death makes hers an egregious case, but uncertainty about and underregulation of police commands goes far beyond this incident. Scholars mostly ignore commands and, except for some broad constitutional constraints, officers get almost no guidance about what commands they may issue, how they should issue them, or what purposes they may serve. Instead, courts, legislatures, police departments, and communities misunderstand how commands function and what legal constraints exist or should exist upon them. And those subject to police commands often have little basis—or venue—for complaint. Yet commands have serious, far-reaching consequences. More than ten percent of Americans are ordered by the police to do something each year.[footnote]Data for 2020, the most recent year available, indicate that U.S. police officers initiated contact with approximately 10% of people over age sixteen, more than twenty-five million people, overwhelmingly during traffic stops. See Susannah N. Tapp & Elizabeth J. Davis, DOJ, Bureau of Just. Stat., NCJ 304527, Contacts Between the Police and the Public, 2020, at 2 fig.1 (2022) https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/ document/cbpp20.pdf [https://perma.cc/XBW5-Q598]. All these traffic stops necessarily involve at least one police command, if only to pull over a car. The data could mildly overestimate the number of people who have been commanded because respondents may experience multiple types of contact. But my 10% estimate does not include the many commands that were issued to the 14.5% of Americans over age sixteen who reported initiating contact with the police or who had contact as a result of traffic accidents. See id. Nor does my 10% estimate include those who are disproportionately likely to have been subject to commands but are systematically excluded from the Police–Public Contact Survey, including people recently admitted to corrections facilities and jail and people experiencing homelessness. Id. at 16. Most estimates put each population at more than a half a million. See, e.g., Todd D. Minton & Zhen Zeng, DOJ, Bureau of Just. Stat., NCJ 303308, Jail Inmates in 2020—Statistical Tables 1 (2021), https://bjs.ojp.gov/content/pub/pdf/ji20st.pdf [https://perma.cc/7NMQ-5QDA] (estimating 549,100 people incarcerated in local jails in midyear 2020); Bruce D. Meyer, Angela Wyse & Kevin Corinth, The Size and Census Coverage of the U.S. Homeless Population 5 (Becker Friedman Inst. for Econ., Working Paper No. 2022-78, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4142734 [https://perma.cc/BL8W-PN2Y] (estimating that there are 500,000–600,000 people experiencing homelessness in the United States). Thus, 10% is likely an underestimate.[/footnote] At best, they comply, and they are deprived only of some freedom; at worst, they refuse, and they are deprived of their lives. By many accounts, American policing is less effective and more violent, intrusive, and discriminatory than it should be.[footnote]Both President Joseph R. Biden and President Donald J. Trump said as much in executive orders. See Exec. Order No. 14,074, § 1, 87 Fed. Reg. 32,945 (May 25, 2022); Exec. Order No. 13,929, § 1, 3 C.F.R. 376 (2021).[/footnote] To address these problems, some activists and academics call for radically changing the way public safety is produced, and communities are experimenting with alternatives to policing. Still, as some reach for the “abolitionist horizon,”[footnote]Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781 (2020).[/footnote] coercive policing, the kind that seeks to control conduct,[footnote]Coercive policing might usefully be distinguished from intrusive policing, which does not attempt to control conduct but nevertheless impinges on citizens’ interests in other ways, such as by surveillance or by searching and taking property without the owner’s involvement.[/footnote] is not going away, at least any time soon; and overwhelmingly, Americans continue to support it.[footnote]See Justin McCarthy, Americans Remain Steadfast on Policing Reform Needs in 2022, Gallup (May 27, 2022), https://news.gallup.com/poll/393119/americans-remain-steadfast-policing-reform-needs-2022.aspx [https://perma.cc/4VHG-US54] (showing majorities of Americans do not support eliminating police enforcement of nonviolent crime, taking away military weapons and equipment from police, reducing police budgets, or abolishing departments).[/footnote] Whatever the future may hold for policing, the power officers continue to exercise must be regulated appropriately. That project requires strengthening the law governing police commands because, as this Article argues, both as a legal and a practical matter, police primarily compel people by issuing commands. This Article proceeds in three parts. Part I argues that we misunderstand how police officers control what people do.[footnote]Policing raises some intractable nomenclature issues. See Harmon, Law of Police, supra note 1, at xxix–xxx. First, how to name those with whom officers interact. This Article mostly uses “people” but sometimes use “citizens” to emphasize the political relationship in police encounters. In doing so, this Article does not mean to exclude noncitizens who may disproportionately encounter the police. Second, gender. This Article refers to unidentified officers by male pronouns to reflect an empirical reality: Policing remains male dominated and its practices heavily gendered. See, e.g., Frank Rudy Cooper, “Who’s the Man?”: Masculinities Studies, Terry Stops, and Police Training, 18 Colum. J. Gender & L. 671, 675–76 (2009) (arguing that male officers sometimes turn encounters with male civilians into masculinity contests that affect how law is enforced). By contrast, this Article uses the singular “they” to refer to unidentified individuals with whom officers interact. More females than males have contact with the police, though police initiate encounters with males more often. Tapp & Davis, supra note 22, at 3 tbl.1. The differences are not profound, and those data fail to capture the estimated 1% of adults who identify as neither male nor female. See, e.g., Anna Brown, About 5% of Young Adults in the U.S. Say Their Gender Is Different From Their Sex Assigned at Birth, Pew Rsch. Ctr. ( June 7, 2022), https://www.pewresearch.org/fact-tank/2022/06/07/about-5-of-young-adults-in-the-u-s-say-their-gender-is-different-from-their-sex-assigned-at-birth/ [https://perma.cc/7MRY-ZKK2]. Third, force. When this Article talks about force, it refers to physical force against a person’s body, whether directly or by a weapon. It does not include nonphysical means of compulsion or constraint, though such activities also can be coercive, harmful, or intrusive.[/footnote] In analyzing coercive policing, lawyers consider searches and seizures.[footnote]See infra section I.A.1.[/footnote] Everyone else emphasizes force.[footnote]See infra section I.A.2.[/footnote] But policing practice and the law that generates police authority suggest a different answer: Officers often exercise—and must exercise—their lawful authority by issuing commands that generate new legal duties for those subject to them.[footnote]See infra section I.B.[/footnote] Commands are the core of policing. Part II notes that despite how important commands are to policing, neither social scientists nor legal scholars have adequately studied them. Criminologists wrongly view commands as informal or as a form of force; law professors examine them only in passing.[footnote]See infra section II.A.[/footnote] As a result, no one has clearly identified where police get their power to issue commands or what limits constrain that authority. To help, Part II proposes an initial account of the law of commands. Rather than having any inherent or general power to command, officers may issue orders only because of, and within the limits of, state statutes that either specifically authorize commands or authorize stops, searches, and arrests.[footnote]See infra section II.B.[/footnote] Part III argues that this account of commands implies three sets of legal constraints, which courts have inadequately enforced: (1) Commands must be authorized; (2) commands must comply with constitutional standards; and (3) commands must provide clear notice and allow individuals an opportunity to comply.[footnote]See infra section III.A.[/footnote] Because we have failed to consider commands carefully, and the public has few mechanisms to challenge problematic commands, command law and policy remain underdeveloped, though these legal constraints are already embedded in the law.[footnote]See infra section III.B.[/footnote] Simply acknowledging these legal requirements could improve judicial and legislative reasoning about the law governing coercive policing. Beyond that, states could by statute, and police departments by policy, better ensure that commands stay within these legal bounds. Finally, as some communities rethink what coercive policing should look like, they could use police department policies and state laws to narrow police authority to issue enforceable commands. Scholars and other commentators frequently debate laws that restrict policing. Far less attention has been paid to how the law generates police power and what that means for police practice. More needs to be said about commands than can be discussed in a single paper, and law cannot fix all that is wrong with policing. Nevertheless, examining commands and the law that enables them can help us understand policing as it really is and can suggest some steps to ensure that it is appropriately guided and governed.