Sandra Bland Was Arrested Because She Failed the “Attitude Test”

August 16th 2015

This week protests were held in front of the Waller County Jail in Waller County, Texas, where Sandra Bland was found dead last month after being arrested during a routine traffic stop. Bland was found hanged in her jail cell three days after she was arrested.

After dashcam video of Sandra Bland’s arrest was released, ATTN: asked criminal defense attorney John Hamasaki for help understanding what it showed. Walking through the video, Mr. Hamasaki gave us his analysis of the situation.

When discussing Bland’s arrest, Mr. Hamasaki brought up the term "attitude test." The quote is below:

"Then the question becomes, what happened there? What happened is, there’s a term we hear in the criminal law field-- 'somebody failed the attitude test.' And when somebody fails the attitude test, things escalate. Again, there is no 'attitude test' that’s permissible as a basis for police encounters, meaning police officers don’t get to harass you because you have a bad attitude, or you don’t show them the proper deference."

We decided to dig further into this concept, and how it relates to the conversation surrounding policing in America, in a follow-up interview with Mr. Hamasaki.


ATTN: How is the term “attitude test” used? How is it used in the criminal justice field?

JH: As a criminal defense attorney, you encounter people who’ve been arrested and charged with a criminal offense. When you start looking at the police reports, the discovery, the evidence underlying the offense—and these cases are usually resisting arrest cases, or battery or assault on an officer cases—you may see an interaction that started out as either not a crime, or a minor crime and ended up with the individual facing serious charges and often injuries as a result.

It commonly arises in the case of a stop-and-frisk, where somebody is being detained and searched based on the officer’s belief that stopping and searching this person might lead to evidence of criminal activity, or in a case similar to Sandra Bland’s, where it’s a really low level traffic offense, and it escalates to something else. You see in these police reports, or other evidence, the situation go from something where everybody should have been able to walk away to somebody being arrested, charged, facing minor or more serious criminal charges based on something that occurred—a moment that occurred where things escalated to the point of criminal charges, where otherwise they wouldn’t have. As an attorney, you have to ask yourself how did this person end up in custody, facing charges and possibly injured. The answer is simple: they failed the "attitude test" with a police officer. They didn’t show the proper deference to the officer, and the officer used his power to impose his authority over them.

ATTN: Where does the “attitude test” come from?

JH: The “attitude test” does not exist independent of historical context in which it is imposed and the way it is imposed on different people. It is a test of whether or not an individual is willing to comply and show an officer the proper deference—and the rules of engagement arose from the difficult racial history of this country. Meaning, the “attitude test” is different for different people. The “attitude test” for a white suburban housewife is different than the one for a young black male in the inner city. What may be accepted from one person from one background may not necessarily be accepted from a different person from another background.

There have been some articles, about the history of Waller County—where Sandra’s stop took place. It had one of the highest rates of lynching, historically, in Texas.

Historically, the offenses that could give rise to lynchings, were simply failings of the “attitude test.” When black people behaved in a way that was not accepted by white society at the time, they could be lynched. We saw this with Emmett Till and countless others. In some cases, the perceived slights were so minor that it seems almost laughable at this time that anybody could even be offended by them, much less gather the town up and then kill somebody over them. Hopefully we’ve moved into an age where lynching is no longer acceptable—but, in the view of certain people, there still has to be punishment when someone, fails to comply with the "attitude test," or fails to show proper deference to law enforcement.

So, the "attitude test" comes out of our unique and dark and troubled American history and it’s still being enforced through law enforcement today.

That’s the "attitude test" that we deal with in the criminal justice world. But it was developed through slavery and then emancipation as codes of conduct that were imposed on Black people separate and distinct from the law. Blacks who didn’t follow these codes were referred to as “uppity” and were accused of not knowing their place. Not knowing their role in white society. And just as it has been punished historically, it’s punished today, through law enforcement.

ATTN: So the punishments might look different, but they happen for the same or similar reasons?

JH: That’s true. The fact that people don’t understand this, or don’t see this, is frustrating. They don’t see the way that what’s past is prologue—that the “attitude test” arose out of our troubled racial history— and that we’re still living with that past, and how it’s enforced today.

I saw a commercial recently for a show on MTV called “White People” which has Jose Antonio Vargas interviewing white people about issues of race. There was this one person who said something along the lines of, “You know, I grew up, and I was raised not to see color. I don’t even see race.” I’m thinking, that’s great, but that not having to see race is kind of the ultimate privilege. The not having to be aware that you have to talk to cops in a certain way.

ATTN: Because some people have to talk to cops in a certain way?

JH: Over the last few years there has been some really powerful, moving writing around the conversation that black parents have to have with their children—especially young black males. It’s the, “You don’t get to be like everybody else,” talk. “You don’t get to have the privilege to engage in a debate with a police officer, or assert your rights with a police officer because that may be the last thing you do.”

There’s so much surrounding this, but I think all of it comes back to the fact that there are different rules for how each of us is allowed to engage in a multitude of contexts. And here, especially with law enforcement, there are consequences of not following those rules.

ATTN: So, it seems, privilege has a lot to do with the way certain people are allowed to interact with the police.

JH: Right, absolutely. You really see that in the criminal justice context. A lot of these stop-and-frisks, or even what the police will call “consensual encounters,”—“Oh you know, I just came up and talked to him and then he started acting nervous, and I decided I needed to search him to make sure he didn’t have a weapon on him, and he became aggressive and irrational…” and it goes on from there—have another side to them. The other side is often that the individual shouldn’t have been stopped to begin with—he didn’t need to be stopped. White people in the suburbs as they go about their business don’t get stopped, or maybe they’d understand this.

But people get tired. That’s one of the reasons we get these failures of the "attitude test"—it happens when people are done. They’re like, “Again? Really? I don’t get to go to the store? I don’t get to walk my kid to school? I don’t get to live in the world that everybody else lives in in a normal way without getting harassed, without getting hassled, without getting searched?” And you can be nice 364 days of the year and have one bad day, and you go to jail. Or you die. Because people just get tired. That’s what I see with clients. They’re just tired. They’re tired of it. And it’s like, how much more can you expect?

And I think we saw that with Eric Garner. His words, which were incredibly powerful, were just words of frustration. Of being tired. Being tired of just being hassled, being harassed, being searched, being arrested—over, nothing? Over selling loose cigarettes, really?

I think the first thing you learn in criminal defense is not to accept what you’re told by police. Sometimes they might be right, sometimes they may be wrong, and sometimes they may be concealing the truth to justify wrongful behavior.

ATTN: So obviously criminal defense attorneys are familiar with the term the “attitude test,” but what about others? Do cops think that they perform the “attitude test?” Do they know the term?

JH: That’s a good question. I would assume so, the term is used pretty openly in the criminal justice field. Are they going to admit that someone got arrested for failing it, for not showing proper deference to their authority? I highly doubt it. But it doesn’t necessarily need to be spoken, because everyone understands it. When you read the police report, before even talking to your client, you understand what might have happened.

I think that ties back around to what we were talking about earlier, about the difficult conversation that Black parents are forced to having with their children. People understand that there are cops and law enforcement imposing this test on people, and it’s primarily on people of color, and that the punishment for failing this test can be serious -- up to and including imprisonment and death.

But is law enforcement conscious and aware of the historical nature of the “attitude test”? That’s a good question. I dont know. And remember, this is not all cops—not all cops are doing this. You see it more in certain districts and geographical areas, jurisdictions where it’s accepted, and where it’s part of the culture. And not surprisingly, some of these same areas fought to keep black people as slaves, fought desegregation and had high rates of lynchings, now have high rates of arrest and prosecution of black people. So the history is there, whether or not people want to own up to it, take responsibility for it, is altogether another question.

ATTN: Does the use of video come into play here?

JH: Imagine any of the recent incidents that had been caught on video; imagine what the police report would have looked like without the video. Take the Sandra Bland case, I know people who aren’t as involved in these issues, but who have watched the video and are just shocked, dismayed, appalled, and offended at how this woman was treated. In the past, if it came down to the words of a police officer versus an ordinary civilian, the question always was, who is the jury going to believe? And the officer will come in to testify wearing their uniform, have their badge and gun on. They will have undergone training on on testifying, how to answer questions, to make eye contact with the jurors, to be a good witness. So you have your client’s word, which may be the absolute truth against an uniformed officer who may have lied every step of the way, from police report to the witness stand. And who does the jury believe?

Because there are expectations that the law is imposed fairly and without prejudice, that it isn’t imposed on certain populations in discriminatory ways, that those imposing it don’t believe it’s acceptable to treat people of different races differently, but that’s not the case. So with the rise of video and camera phones, I think that people are starting to re-think whether or not they should always accept the police narrative—whether the words of a police officer should be given any more credibility because of their uniform. Because legally, that is impermissible, but we know it happens every day.

That is the hope. That ordinary citizens are watching all of this unfold and start to question their government, whether the laws are being imposed fairly and whether the police are stopping crime or creating it.

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