Re: Sandra Bland—Mimms The Word!

By Penelope Dreadful


Hush Up About The Illegal Arrest!

Regarding the Sandra Bland death, numerous individuals are claiming that Trooper Encinia had no legal authority/right to ask Ms. Bland to exit her vehicle. They are flatly wrong. The applicable case is, Pennsylvania v. Mimms, 434 U.S. 106 (1977). The Wikipedia article about the case provides a plain English recap:

Pennsylvania v. Mimms, 434 U.S. 106 (1977), is a United States Supreme Court criminal law decision holding that a police officer ordering a person out of a car following a traffic stop and conducting a pat-down to check for weapons did not violate the Fourth Amendment to the United States Constitution.

In 1977, two police officers pulled over a vehicle driven by a young man by the name of Harry Mimms for an expired license plate. The officers instructed Mimms to exit the vehicle; when Mimms complied, an officer noticed a bulge in his pants under his jacket, conducted a pat-down, and discovered a weapon. The officer proceeded to arrest Mimms for carrying a concealed deadly weapon and unlawfully carrying a firearm without a license, charges for which Mimms was later convicted. The conviction was reversed by the Pennsylvania Supreme Court on December 5, 1977, which ruled that the evidence should have been suppressed as the police violated Mimms’ Fourth Amendment rights. The United States Supreme Court in turn reversed the PSC’s reversal, upholding the original conviction on the grounds that no violation of the Fourth Amendment had occurred.[1]

It was considered common for police officers to ask people inside their vehicle to exit it to prevent any danger that may occur to the officer. It is also much safer to avoid danger from oncoming traffic. Asking Mimms to step out of the car raised little more inconvenience and revealed a little more than what was shown before. Therefore, the bulge that the officer noticed posed as a serious threat to the officer. Anyone with this realization may have conducted a “pat down.” The Decision of Pennsylvania Supreme Court was reversed.[4]

Those wishing to read the Mimms opinion in full may find it here:

It seems pretty clear, that Trooper Encinia was on solid legal ground to ask Ms. Bland to exit the vehicle. However Ian Millhiser at Think Progress has a different view, and thinks the later case of Rodriguez v. United States, 575 U.S. ___ (2015) is more applicable. He argues:

Newly released video of Texas State Trooper Brian Encinia arresting Sandra Bland, an African American woman who was found dead in her jail cell three days later, shows the officer rapidly escalating a minor argument over a cigarette into a forcible arrest. Shortly after Encinia brings Bland a warning citation for changing lanes without signaling, he asks her to extinguish her cigarette. When Bland declines to do so, the officer opens her door and tries to physically remove her from her car. He eventually draws what appears to be a stun gun and screams at Bland that he will “light you up” if she does not exit the vehicle.

Just a few minutes later, Bland is in handcuffs and off camera. When Encinia instructs her to “wait right here,” she informs him that she “can’t go nowhere with a fucking knee on my back.”

After watching the video, Texas state Sen. Royce West (D) commented that “once you see what occurred, you will probably agree with me she did not deserve to be placed in custody.” It is likely that the United States Supreme Court would also agree. Indeed, Trooper Encinia’s conduct probably violates a decision the Supreme Court handed down just last April.

Rodriguez v. United States held that police could not extend the length of a routine traffic stop, even for just a few minutes, absent a safety related concern or reasonable suspicion to believe that the driver may have committed an additional crime. As Justice Ruth Bader Ginsburg explained in the opinion of the Court, “[t]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ — to address the traffic violation that warranted the stop, and attend to related safety concerns.” A police stop “may ‘last no longer than is necessary to effectuate th[at] purpose.’ Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.”

The officer never gives Bland a direct order to extinguish the cigarette — his exact words to her are “you mind putting out your cigarette, please, if you don’t mind?” So, even if Encinia did have the lawful authority to demand that she put out the cigarette, Bland reasonably could have viewed this as a request that she could refuse. When Bland did refuse, Encinia immediately orders her out of the car without taking the intermediate step of actually ordering her to put out the cigarette. This rapid escalation extended the length of the stop without a clear justification for doing so.

Additionally, Trooper Encinia did not mention the argument over the cigarette (or the fact that he pulled his stun gun) in his official incident report. If Encinia truly believed that the lit cigarette was a danger to his safety that offered a legal justification for his actions, then it is unlikely that he would not have mentioned it in the report.

Here is the link to the full Rodriguez case:

Where I believe Mr. Millhiser went off the rails, was his failure to fully consider that in Rodriguez, there was an act separate and distinct from, and unrelated to, the circumstances of the traffic stop; to wit, the calling in of the drug dog. That separate act unconstitutionally prolonged the duration of the traffic stop.

In the matter at hand however, there was no separate act and apart from the circumstances of the traffic stop. A legal request was made to Ms. Bland, within the purview of the trooper, and the purlieu of the stop, and she refused to comply. Both her refusal to put out her cigarette,  and her general attitude of belligerence would provide sufficient grounds for the trooper to ask her to leave the vehicle. After exiting the vehicle, she allegedly kicked, cursed, and scratched at the trooper, providing even more grounds for her subsequent arrest, and also providing post hoc, or after the fact, evidence that she was indeed a potential danger to the trooper. Should Encinia subsequently claim that his assessment of her was that she represented such a potential danger, he will be supported by the clear facts of the matter.

The fact that Encinia did not write of his pre-existing fears of officer safety are irrelevant. Similarly, “Officer Rudeness” is not a defense to anything, nor is it a cognizable cause of action. The only relevant legal question is, did Encinia have the right to ask her to leave the vehicle. He did through the auspices of Mimms.

It should also be noted that this arrest is totally separate and distinct from Ms. Bland’s suicide. It is possible that Ms. Bland’s estate could bring an action for False Imprisonment, or perhaps False Arrest, but any such action would face severe evidentiary hurdles. Ms. Bland is unable to testify, and Trooper Encinia can point to his alleged wounds as sufficient grounds for an arrest, subject to her exit from the vehicle.

According to a recent report on the Kelly File, Ms. Bland also signed a document at the booking in which she admitted that she had attempted suicide in the past, but was not currently suicidal. Outside of additional evidence, any suit for wrongful death would probably also fall short.

I have not attempted to write a full legal brief on this. This is just an outline of the major issues as I see them.

Penelope Dreadful

FootNote: The Image above is of Stan Laurel and Oliver Hardy.

About Penelope Dreadful

An attorney, with a rye sense of humor.
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1 Response to Re: Sandra Bland—Mimms The Word!

  1. Paul C. Schulte says:

    The reason he asked her to put out the cigarette was that it is a potential weapon. Whether his polite request rises to a ‘legitimate command’ which she failed to follow, is another thing. There really is no reason for her not to put the cigarette out.


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