Female officer: Stop resisting, ma’am.
Bland: [Cries.] For a fucking traffic ticket, you are such a pussy. You are such a pussy.
Female officer: No, you are. You should not be fighting.
Encinia: Get on the ground!
Bland: For a traffic signal!
Encinia: You are yanking around, when you pull away from me, you’re resisting arrest.
Bland: Don’t it make you feel real good, don’t it? A female for a traffic ticket. Don’t it make
you feel good, Officer Encinia? You’re a real man now. You just slammed me, knocked
my head into the ground. I got epilepsy, you motherfucker.
Encinia: Good. Good.
Bland: Good? Good?
Bland was taken into custody on felony assault charges. Three days later she was found dead
in her cell, hanging from a noose fashioned from a plastic bag. After a short investigation,
Encinia was fired on the grounds that he had violated Chapter 5, Section 05.17.00, of the Texas
State Trooper General Manual:
An employee of the Department of Public Safety shall be courteous to the public and to other
employees. An employee shall be tactful in the performance of duties, shall control behavior,
and shall exercise the utmost patience and discretion. An employee shall not engage in
argumentative discussions even in the face of extreme provocation.
Brian Encinia was a tone-deaf bully. The lesson of what happened on the afternoon of July
10, 2015, is that when police talk to strangers, they need to be respectful and polite. Case closed.
Right?
Wrong.
At this point, I think we can do better.
2.
A Kansas City traffic stop is a search for a needle in a haystack. A police officer uses a common
infraction to search for something rare—guns and drugs. From the very beginning, as the ideas
perfected in Kansas City began to spread around the world, it was clear that this kind of policing
required a new mentality.
The person who searches your hand luggage at the airport, for example, is also engaged in a
haystack search. And from time to time, the Transportation Security Administration (TSA)
conducts audits at different airports. They slip a gun or a fake bomb into a piece of luggage.
What do they find? That 95 percent of the time, the guns and bombs go undetected. This is not
because airport screeners are lazy or incompetent. Rather, it is because the haystack search
represents a direct challenge to the human tendency to default to truth. The airport screener sees
something, and maybe it looks a little suspicious. But she looks up at the line of very ordinary-
looking travelers waiting patiently, and she remembers that in two years on the job she’s never
seen a real gun. She knows, in fact, that in a typical year the TSA screens 1.7 billion carry-on
bags, and out of that number finds only a few thousand handguns. That’s a hit rate of .0001
percent—which means the odds are that if she kept doing her job for another 50 years she would
never see a gun. So she sees the suspicious object inserted by the TSA’s auditors, and she lets it
go.
For Kansas City traffic stops to work, the police officer could not think that way. He had to
suspect the worst of every car he approached. He had to stop defaulting to truth. He had to think
like Harry Markopolos.
The bible for post–Kansas City policing is called Tactics for Criminal Patrol, by Charles
Remsberg. It came out in 1995, and it laid out in precise detail what was required of the new,
non-defaulting patrol officer. According to Remsberg, the officer had to take the initiative and
“go beyond the ticket.” That meant, first of all, picking up on what Remsberg called “curiosity
ticklers”—anomalies that raise the possibility of potential wrongdoing. A motorist in a bad
neighborhood stops at a red light and looks down intently at something on the seat next to him.
What’s that about? An officer spots a little piece of wrapping paper sticking out between two
panels of an otherwise spotless car. Might that be the loose end of a hidden package? In the
infamous North Carolina case, where the police officer pulled over a driver for a broken brake
light—thinking, incorrectly, that this was against North Carolina law—the thing that raised his
suspicions was that the driver was “stiff and nervous.” The most savvy of criminals will be
careful not to commit any obvious infractions. So traffic cops needed to be creative about what
to look for: cracked windshields, lane changes without signaling, following too closely.
“One officer,” Remsberg writes, “knowing that some of the most popular dope markets in his
city are in dead-end streets and cul-de-sacs, just parks there and watches. Often drivers will get
close before seeing his squad [car], then stop suddenly (improper stopping in a roadway) or
hastily back up (improper backing in a roadway). ‘There’s two offenses,’ he says, ‘before I even
pursue the car.’”
When he approached the stopped car, the new breed of officer had to be alert to the tiniest
clues. Drug couriers often use air fresheners—particularly the kind shaped like little fir trees—to
cover up the smell of drugs. (Tree air fresheners are known as the “felony forest.”) If there are
remains of fast food in the car, that suggests the driver is in a hurry and reluctant to leave his
vehicle (and its valuable cargo) unattended. If the drugs or guns are hidden in secret
compartments, there might be tools on the back seat. What’s the mileage on the car? Unusually
high for a car of that model year? New tires on an old car? A bunch of keys in the ignition, which
would be normal—or just one, as if the car was prepared just for the driver? Is there too much
luggage for what seems like a short journey? Or too little luggage for what the motorist says is a
long journey? The officer in an investigatory stop is instructed to drag things out as long as
possible. Where you from? Where are you headed? Chicago? Got family there? Where? He’s
looking for stumbles, nervousness, an implausible answer, and whether the driver’s answer
matches what he’s seeing. The officer is trying to decide whether to take the next step and search
the car.
Keep in mind that the overwhelming majority of people with food in their car, air fresheners,
high mileage, new tires on an old car, and either too little or too much luggage are not running
guns and drugs. But if the police officer is to find that criminal needle in a haystack, he has to
fight the rational calculation that most of us make that the world is a pretty honest place.
So what is Brian Encinia? He’s the police officer who does not default to truth. Here’s a day
from Brian Encinia’s career, chosen at random: September 11, 2014.
3:52 p.m. The beginning of his shift. He stops a truck driver and tickets him for not having the
appropriate reflective tape on his trailer.
4:20 p.m. He stops a woman for an improperly placed license plate.
4:39 p.m. He stops another woman for a license-plate infraction.
4:54 p.m. He notices a driver with an expired registration, stops him, and then also cites
him for an expired license.
5:12 p.m. He stops a woman for a minor speeding infraction (that is, less than 10 percent
over the speed limit).
5:58 p.m. He stops someone for a major speeding infraction.
6:14 p.m. He stops a man for an expired registration, then gives him three more tickets for
a license infraction and having an open container of alcohol in his vehicle.
8:29 p.m. He stops a man for “no/improper ID lamp” and “no/improper clearance lamp.”
It goes on. Ten minutes later, he stops a woman for noncompliant headlamps, then two more
minor speeding tickets over the next half hour. At 10 p.m. a stop for “safety chains,” and then, at
the end of his shift, a stop for noncompliant headlamps.
In that list, there is only one glaring infraction—the 5:58 stop for speeding more than 10
percent over the limit. Any police officer would respond to that. But many of the other things
Encinia did that day fall under the category of modern, proactive policing. You pull over a truck
driver for improper reflective tape, or someone else for “no/improper clearance lamp,” when you
are looking for something else—when you are consciously looking, as Remsberg put it, to “go
beyond the ticket.”
One of the key pieces of advice given to proactive patrol officers to protect them from
accusations of bias or racial profiling is that they should be careful to stop everyone. If you’re
going to use trivial, trumped-up reasons for pulling someone over, make sure you act that way all
the time. “If you’re accused of profiling or pretextual stops, you can bring your daily logbook to
court and document that pulling over motorists for ‘stickler’ reasons is part of your customary
pattern,” Remsberg writes, “not a glaring exception conveniently dusted off in the defendant’s
case.”
That’s exactly what Encinia did. He had day after day like September 11, 2014. He got people
for improper mud flaps and for not wearing a seat belt and for straddling lanes and for obscure
violations of vehicle-light regulations. He popped in and out of his car like a Whac-A-Mole. In
just under a year on the job, he wrote 1,557 tickets. In the twenty-six minutes before he stopped
Sandra Bland, he stopped three other people.
So: Encinia spots Sandra Bland on the afternoon of July 10. In his deposition given during the
subsequent investigation by the Inspector General’s office of the Texas Department of Public
Safety, Encinia said he saw Bland run a stop sign as she pulled out of Prairie View University.
That’s his curiosity tickler. He can’t pull her over at that point, because the stop sign is on
university property. But when she turns onto State Loop 1098, he follows her. He notices she has
Illinois license plates. That’s the second curiosity tickler. What’s someone from the other end of
the country doing in East Texas?
“I was checking the condition of the vehicle, such as the make, the model, if it had a license
plate, any other conditions,” Encinia testified. He was looking for an excuse to pull her over.
“Have you accelerated up on vehicles at that speed in the past, to check their condition?” Encinia
is asked by his interrogator, Cleve Renfro. “I have, yes sir,” Encinia replies. For him, it’s
standard practice.
When Bland sees Encinia in her rearview mirror coming up fast behind her, she moves out of
the way to let him pass. But she doesn’t use her turn signal. Bingo! Now Encinia has his
justification: Title 7, subtitle C, Section 545.104, part (a) of the Texas Transportation Code,
which holds that “An operator shall use the signal authorized by Section 545.106 to indicate an
intention to turn, change lanes, or start from a parked position.” (In the event that Bland had used
her turn signal at the very last moment, just before she changed lanes, Encinia even had a backup
option: part (b) of Section 545.104 holds that “An operator intending to turn a vehicle right or
left shall signal continuously for not less than the last 100 feet of movement of the vehicle before
the turn.” He could have stopped her for not signaling and he could have stopped her for not
signaling enough.)
1
Encinia gets out of his squad car and slowly approaches Bland’s Hyundai from the passenger
side, leaning in slightly to see if there’s anything of interest in the car. He’s doing the visual pat-
down: Anything amiss? Fast-food wrappers on the floor? A felony forest hanging from the
rearview mirror? Tools on the back seat? Single key on the key ring? Bland had just driven to
Texas from Chicago; of course she had food wrappers on the floor. In the normal course of
events, most of us looking in that window would cast our doubts aside. But Brian Encinia is the
new breed of police officer. And we have decided that we would rather our leaders and guardians
pursue their doubts than dismiss them. Encinia leans in the window, tells her why he pulled her
over, and—immediately—his suspicions are raised.
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