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.
But rather than give it to her and let Bland go on her way, Encinia asks, “You OK?”
After she responds briefly, he adds, “[Y]ou seem very irritated.”
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.
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?”
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.
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?”
At that point, the confrontation intensifies. Encinia doesn’t answer. Instead, he orders her out of the car.
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.”
Almost as often, Bland responds, “No, you don’t have the right.”
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.
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,
as well as about what standard determines whether such an order is legal.
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,
a Fourth Amendment case decided by the Supreme Court, authorized the officer to order Bland out of the car,
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.
Even Texas courts have relied on Mimms to find that officers have such authority as a matter of state law.
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.
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.”
The department complained that he extended the stop inappropriately and did not follow the department’s stop script properly.
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”
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.
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.
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,”
coercive policing, the kind that seeks to control conduct,
is not going away, at least any time soon; and overwhelmingly, Americans continue to support it.
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.
In analyzing coercive policing, lawyers consider searches and seizures.
Everyone else emphasizes force.
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.
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.
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.
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.
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.
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.