As Ed Krayewski noted yesterday, a Texas grand jury has declined to indict employees at the Waller County jail for failing to prevent Sandra Bland's death from an apparent suicide on July 13. But Darrell Jordan, one of the special prosecutors assigned to the case, has indicated (without saying so explicitly) that grand jurors will consider charges against Brian Encinia, the state trooper who arrested Bland after a routine traffic stop on July 10, when they reconvene next month. Yesterday a lawyer for Bland's family, Cannon Lambert, suggested that Encinia should be charged with false imprisonment for arresting Bland without probable cause and assault and battery for using excessive force.
The New York Times reports that Lambert "said he believed that Trooper Encinia never had probable cause to make the traffic stop." But the standard for pulling someone over is reasonable suspicion, not probable cause. In any case, dashcam video of the incident shows Bland did change lanes without signaling, which was Encinia's justification for the stop. It is less clear, both in the video and in Encinia's arrest report, exactly why he decided to arrest her.
At one point, after Encinia has handcuffed and tackled Bland, he says she is being charged with resisting arrest, but that makes sense only if there was some reason to arrest her in the first place. She was ultimately charged with assaulting a public servant, but the altercation in which she allegedly assaulted Encinia occurred after he declared that she was under arrest, which happened while she was still sitting in her car.
Although changing lanes without signaling, like many other minor traffic violations, is technically an arrestable offense in Texas, that clearly was not the justification, since Encinia says he planned to let her off with a warning. What set him off, judging from the video, was her refusal to comply with his request (and it was phrased as a request, not an order) that she put out her cigarette. At that point, he ordered her out of her car, and she objected, saying he had no authority to do so. "I'm giving you a lawful order," he insisted.
According to the Supreme Court, Bland was wrong, and Encinia was right. In the 1977 case Pennsylvania v. Mimms, the Court said a police officer may order a legally detained motorist out of his car at will. Although the general rationale is officer safety, police need not show that concern actually applies in any particular situation.
It was when Bland refused to get out of her car that Encinia first declared she was under arrest. Although he did not say why, failure to comply with a police officer's lawful order (another traffic violation) is the only charge that seems to make sense.
In his arrest report, Encinia dances around the issue. "I had Bland exit the vehicle to further conduct a safe traffic investigation," he writes. "Bland became combative and uncooperative. Numerous commands were given to Bland ordering her to exit the vehicle. Bland was removed from the car but became more combative. Bland was placed in handcuffs for officer safety."
Encinia thus obscures the fact that he had no real justification for ordering Bland out of her car (aside from the general license granted by Mimms) and that he easily could have avoided the altercation that followed—during which he grabbed her, threatened her with a Taser, and wrestled her to the ground—if he had simply kept his cool and behaved professionally. Encinia's own employer, the Texas Department of Public Safety (DPS), has said his escalation of the traffic stop violated DPS policy.
But DPS has not said Encinia broke the law, and it looks like his initial decision to arrest Bland was legal, albeit gratuitous and rash. Whether the assault charge against Bland was legally justified depends on the details of what happened after he forced her out of her car, some of which cannot be seen on the video.
"Bland began swinging her elbows at me and then kicked my right leg in the shin," Encinia says in the arrest report. According to a lawsuit that Bland's mother filed in August, that's a lie: Encinia claimed Bland assaulted him when in fact it was the other way around. After handcuffing her, the complaint says, Encinia "wrestled Sandra Bland to the ground," "slammed Sandra Bland's head to the ground," and "kneeled on the body of Sandra Bland." The wrestling, slamming, and kneeling cannot be seen on the video, but Bland can be heard complaining about them. The suit says the force used by Encinia, including grabbing Bland and threatening her with a Taser while she was still in her car, "was not necessary under the circumstances" and amounted to assault and battery.
It should be clear to any fair-minded person who watches the video and reads the arrest report that Encinia started this fight for no good reason. In that sense, Bland's family is right: Encinia was the aggressor. But in light of Mimms and the wide latitude that Texas law gives police to arrest people for minor traffic offenses, that aggression was arguably legal, at least initially. It still seems likely that Encinia used excessive force while arresting Bland and that the assault charge was a bogus, ex post facto excuse for his failure to control his temper. Whether the grand jurors will see it that way is another question. Given our legal system's tendency to give cops a much bigger benefit of the doubt than ordinary citizens get, I'd say probably not.