In dashcam video of Sandra Bland’s traffic stop and arrest, Bland and Texas state trooper Brian Encinia begin arguing after he approaches her car for the second time. After sarcastically asking her if she’s “done” explaining why she’s upset about being pulled over, he then asks Bland to put out a cigarette. When she refuses, Encinia becomes angry and demands that she get out of the car, and when she refuses to do that, he opens her door, tries to drag her out, screams at her, threatens her with a Taser, handcuffs her, and ultimately arrests her for assault because she allegedly kicked him. (The footage doesn’t show Bland kicking Encinia, but it could have happened after she got out of the car and they were outside the camera’s frame.)
Slate legal writer Mark Joseph Stern asserted Wednesday that while Encinia was likely within his rights to order Bland to put out the cigarette and get out of her car, taking such aggressive physical action against her when she refused to do so constituted an excessive use of force. And it seems clear from the video that Encinia’s actions, not to mention his initial verbal escalation of the situation, happened in large part because he took offense at what he perceived as Bland’s disrespectful attitude—what is known in legal circles as “contempt of cop”—rather than any belief that she presented an imminent threat to anyone’s safety.
In 2010, Christy Lopez, the Department of Justice official who led the federal investigation into the Ferguson, Missouri, police department after Michael Brown’s death, wrote a paper on the subject of “contempt of cop” arrests. (Lopez’s Ferguson investigation found that officers in Ferguson had a habit of making unjustified and abusive arrests.) Lopez opens her report by noting that disagreeing with, criticizing, or otherwise being verbally difficult with a police officer is behavior protected by the First Amendement. Legally, you should be able to say anything you want to an officer, or even make an obscene gesture toward the police, without fearing punishment. Practically, though, Lopez writes, “there is abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who ‘disrespect’ them or express disagreement with their actions.”
Lopez observes that since arrested suspects in “contempt of cop” cases often did very little if anything that was illegal, many of those arrests end in dropped charges and lawsuits. Some high-profile recent examples:
- A 16-year-old in Portland, Oregon, was acquitted of charges against him in March after a judge found that police had beaten him for no reason other than he had used profanity when responding to an officer who had clapped at him to get his attention.
- In 2014, the New York Post reported that only 6 percent of cases (in an unspecified time period) in which resisting arrest was the most serious charge against a suspect resulted in convictions in New York City.
- An ongoing Washington, D.C., lawsuit with multiple plaintiffs accuses police of making bogus arrests under a statute that prevents “incommoding,” or blocking a sidewalk—a statute that itself was put into place after an official 2010 report found that the city’s vague disorderly conduct laws were facilitating improper “contempt of cop” arrests.
- A D.C. woman won nearly $100,000 in a lawsuit in 2011 after police arrested her when she made a derisive comment toward them at a 7-Eleven.
- Charges were famously dropped against Harvard professor Henry Louis Gates in 2009 after he was charged with disorderly conduct following an interaction with a police officer that began when a break-in was reported at Gates’ own home.
- A 2008 Seattle Post-Intelligencer report found that nearly half of cases in the city in which the sole arresting charge was “obstructing a public officer” were ultimately dropped. (Half of the people arrested for obstruction were black; Seattle is eight percent black overall.)
As the Seattle and Gates items suggest, the targets of “contempt of cop” arrests are often nonwhite. When you consider that black drivers may also be disproportionately subject to “investigatory stops,” in which minor motor vehicle violations are used as pretexts for searches and interrogations—and that Bland herself was stopped only for failing to signal a lane change—Sandra Bland’s experience in Waller County might even be considered typical were it not for its tragic end.