What happened to Sandra Bland? This is a question many Americans (particularly, and rightfully, black American women) are asking, following the death of a young civil rights activist in a Waller County, Texas jail cell two weeks ago. Was any of it—her arrest after a traffic stop by state trooper Brian Encinia, her three-day detention, the neglect that resulted in her alleged suicide by hanging—legal?
Bland’s death remains under investigation, but the dashboard camera footage of her interaction with Encinia shows the escalation of a warning for the failure to signal into the forceful detention of an epileptic woman. Surprisingly, much of what occurred between Encinia and Bland appears to have been legal, if imprudent. Encinia’s tactics could be called “brutality-adjacent policing,” in which the standard for behavior is the bare legal minimum rather than actively good policing.
The phrase comes from Leah Libresco’s reflection on California’s “affirmative consent” law, which Libresco called an attempt to minimize “rape-adjacent sex”—the “gray area” into which many rape cases fall, in which one partner believes he or she is behaving appropriately, while the other partner experiences the interaction as rape. Libresco continues, “Rape-adjacent sex gives cover to serial predators, who are believed to be the main driver of sexual assaults on campus, since the kind of sex they’re trying to have doesn’t look very different from the sex everyone else is already having.”
Brutality-adjacent policing works in much the same way: the officer believes he or she is behaving appropriately, while the civilian experiences the interaction as brutality. This way of policing gives cover to bad actors, because the kind of policing they are exercising doesn’t look very different from the policing everyone else, “good cops” and “bad cops” alike, is exercising.
For instance, the major legal quandary in Encinia’s arrest of Bland arises from the point at which he asked her to put out her cigarette. When she refused, he ordered her to exit her vehicle. The former order was in fact a request, which Bland was within her rights to decline, but the latter was a command that Encinia had the legal authority to enforce. Encinia was not required to justify his command, and the impression that he gave the command in service of his ego rather than his safety is legally irrelevant—though socially damaging. When a police officer chooses to force compliance (giving a command) rather than encourage cooperation (writing warnings, ignoring frustration, explaining good safety habits), he or she not only wastes police resources on inconsequential issues, but also breaks down trust between police and civilians in a very tangible way. It is legal policing, but it is not good policing. (It is worth noting that most relevant authorities, including the local district attorney and mayor, seem to agree. The State Department of Public Safety is currently conducting an inquiry, having stated that the trooper violated unspecified protocol.)
The obvious, but faulty, assumption is that the civilian side of the encounter could easily be improved. After all, it is fairly clear that Sandra Bland was arrested for an “unwritten crime … contempt of cop,” a phenomenon more or less avoidable by deference to the police. It is true that Bland could have responded more “respectfully” (that is, quietly) to Encinia’s actions. In fact, Orin Kerr explains, the way the law is structured would have pressured her to do so: it is often impossible for a citizen to know when an officer is giving a lawful order, either because of unfamiliar laws or uncontrollable circumstances such as unknown evidence. “Faced with this, a citizen’s cautious strategy might be just to do everything the officer says regardless of whether the officer’s command is lawful.”
In reality, Charles M. Blow is right to say that the parameters of “respectable behavior” vary from person to person, and, crucially, those parameters are informed by race, gender, and circumstance. Everything from Encinia’s mood that day to his socialized expectations of a black female civilian is beyond prediction, and those factors proved just as crucial for Bland’s fate. Her safest option, legally and otherwise, would have been total deference to the police, but this is unreasonable to demand in a democratic society—not to mention impractical, since police, not civilians, are the ones trained to anticipate and resolve conflict.
That training is where concrete progress can be made. Former police officer and legal scholar Seth Stoughton has called the tragic police-civilian encounters propelling the #BlackLivesMatter movement “symptoms of a systemic problem: a police culture that trains and encourages officers to adopt a ‘warrior mindset.’” The “warrior” mindset trains officers to prioritize personal survival in each encounter, as if in response to a uniformly hostile environment. The highly-publicized murders of police officers, such as recent killings in California and New York, illustrate the very real nature of the danger faced by police officers in their day-to-day work.
But when danger and defense are the only factors informing a police officer’s default attitude toward civilians, it is easy to lose sight of the power dynamic at play. As Lonnae O’Neal has reported, police officers are, by the numbers, significantly more of a threat to civilians than civilians are to them: according to the FBI, 51 officers were killed in the line of duty in 2014, while according to a Washington Post database of police shootings, police have shot and killed 544 people this year thus far. (“Of that number, 76 people were unarmed or had a toy weapon and at least 34 of them were driving a vehicle,” O’Neal notes.)
Without minimizing the occasional necessity of a “warrior” mindset in the face of life-or-death situations, Stoughton proposes an alternate model for everyday use and emphasis in modern policing: that of the community “guardian.” The “guardian” takes a long-term view of how to achieve the goal of community protection, prioritizing “service over crime-fighting.” Training officers to be “guardians,” Stoughton suggests, could involve encouraging more non-enforcement encounters in order to build relationships in the community; training in de-escalating conflict and tactical restraint; and incorporating analysis of police-civilian encounters gone wrong in early training.
In short, better policing requires the recognition that Brian Encinia’s actions would have been devastating even if Sandra Bland were alive. It requires hearing the #BlackLivesMatter movement’s call not just to protect black lives from police brutality, but black living from brutality-adjacent policing. It requires raising the necessary but insufficient standard of legality to a stronger standard of guardianship, and shifting the focus from officer safety to community protection.
Catherine Addington is an editorial fellow for The American Conservative.