Radiolab - Graham

Episode Date: June 7, 2020

If former Minneapolis police officer Derek Chauvin’s case for the death of George Floyd goes to trial, there will be this one, controversial legal principle looming over the proceedings: The reasonable officer. In this episode, we explore the origin of the reasonable officer standard, with the case that sent two Charlotte lawyers on a quest for true objectivity, and changed the face of policing in the US. This episode was produced by Matt Kielty with help from Kelly Prime and Annie McEwen. Support Radiolab today at Radiolab.org/donate.  

Wait, you're listening. Okay. All right. Okay. All right. You're listening to Radio Lab. Radio Lab. From W. N. Y. Se.

See? Yeah. Hey, I'm Chad Abumrah. This is Radio Lab. It has been an intense week. Just a horrible, hard, difficult week. felt like the world cracked open, to be honest. Protest around the world. Violence.

Just some really shocking moments. But also, and this is what I don't want to lose sight of, moments of stillness, and respect, and silence. I want to have a moment of silence for George Floyd. People have come to a stop. Fists in the air. What we do know right now from our reporters on the ground is that this is a moment of silence. And we would like to honor that as well. Been thinking a lot about those silences, all the silences that led to this silence.

Honestly, there is so much behind what is happening. It's hard to find the words. Hard to know what is useful right now. But I want to offer some small things that we can share. One of those is that, amidst all the pain and outrage, there is one thing that is about to happen, that is sure to happen. Derek Chauvin, the police officer who put his knee on George Floyd's neck, will be going to court. He's been charged with second-degree murder and manslaughter, and there will almost certainly be a trial. The outcome of that trial will have a lot to say about how we as a nation moved through this moment.

And the argument that inevitably is going to get made in that courtroom is an argument that has been made over and over again. And we had the chance a few years back to take a deep dive into the legal standard that sits at the heart of so many of these cases. Now, knowing that what's happening in the world has so much more, it's so much bigger than just what will happen in court. Still, we figured we could share and illuminate this one small corner of what is happening to all of us right now. And what might happen to Derek Chauvin when he goes to trial for killing George Floyd. This story was originally released on our sister's show More Perfect a couple of years ago. It was produced by Matt Kielte and Kelly Prime. At the end of this piece, we'll talk a little bit about how the current situation with George Floyd might test the legal standard a little bit.

Okay, here's Matt with the story. I think we might as well to start... Should I try to sound Southern? With a guy named Woody Connett. I'm a lawyer with Essex Richards, a law firm in Charlotte, North Carolina. We'll pick it up in 1985. Back in 1985, I was a very young lawyer. I was 32 years old.

I just started my own law firm, and I was taken about anything that came through the door. And one day says Woody, this guy walked in. A late 30s, fairly thin. Five foot nine, five foot ten. On crutches. And he's a black man. He is, or was. He's passed away, Mr. Graham.

The man's name is Thorne Graham, and Woody says, well, you know, like what happened to your leg? What's with the crutches? And De Thorne lays everything out for him. Here we go. So he was pulled over on West Boulevard in Charlotte, which is a four-lane road. De Thorne told Woody he worked for the city of Charlotte in the Department of Transportation. Own road crews doing road repairs. It was a Monday afternoon, and on that day,

one of Dithorn's friends, a co-worker, stopped by his place. And after talking for a bit, Mr. Graham asked to be taken to a nearby convenience store that was only two or three blocks from his house. He needed some orange shoes because he was suffering the onset of a diabetic insulin reaction. So Dthorne hopped in his friend's car. They drove over to this convenience store. Dithorne got out.

Got a bottle of orange shoes. Got to the checkout counter. But there's a line there. So he puts the bottle down and hurries out. Gets back in his friend's car. They take off. Now, this is where the problems started. Turns out at the same time all that's happening, there's actually an officer who was African American.

Sitting in his squad car. And what that officer observed was a man hurrying out of the store, jumping into a waiting car, and quickly driving off. So he starts to tail Dithorne and his friend. And after a couple of blocks, pulled him over just to determine what was going on there. So he goes up to the driver's side, presumably gets Dithorne's buddy's driver's license. Goes back to his squad car, starts radioing to get a hold of the convenience store to see if anything had happened. And it's right around that moment that Dithorn, who's in the passenger seat of the car, suddenly opened his door, got out of the car. Circle the car once or twice.

like sort of stumbled around it. Then he sat down on the curb. And he started going into shock. Uh, almost like a seizure he would have. Oh, really? Yeah, and it was terrifying. This is the Thorne Graham Jr. He was a type 1 diabetic.

What is type 1 diabetes? Because I know it's 1 and 2. From what I understand, the type 1 diabetes is when your body just doesn't produce enough insulin. And what would that seizure look like? Well, you know, one incident in particular, I can remember us being church and he got like this blank stare on his face and you see the beads of sweat come on his forehead his body would siege up and he would shake and he would bite his tongue up and so i can remember my

mother trying to you know force a spoon into his mouth to keep him from biting his tongue up and the main thing was try to get some orange juice in him that way it would raise his uh blood sugar and and once you got the orange juice in him he'd sleep for a couple hours and and he'd wake up and he'd be exhausted but he'd be alive All right, so Charlotte City Street. At this point, four other officers arrived. De Thorn has actually passed out on the curb. One of the officers rolled Mr. Graham over on the sidewalk and cuffed his hands behind his back.

At one point, one of the officers grabs the thorn by the handcuffs and picks him up off the curb from behind. Oh, wow. The thorn was sort of in and out at this point, I guess. He tries to tell the officers that he was a diabetic, that he was a diabetic, that he He had a medical card in his wallet, asked the officer to pull the wallet out of his back pocket. And one of the officers said, ain't nothing wrong with the motherfucker, but he's drunk. At some point around here, the details are a little unclear. A pretty nasty scuffle ensued.

According to what is known as case syllabus, De Thorne was resisting the officers, and apparently one of the officers slammed Dithorn's head into his friend's car. He suffered head and shoulder injuries. He also ended up with a broken foot, cuts around his wrists. and eventually the officers pick him up one on each arm, one on each leg, and just throw him into the back of a squad car. While this was going on, a few people gathered around. Not long after that, the officers learned that nothing at all had happened at the convenience store.

There was no crime, there was no robbery, there was no shoplifting. So they drove him back to his house, still in handcuffs. Pulled him out of the car. A friend at Thorne's house got him some OJ. And the officers laid him out in his front yard, took the handcuffs off, and then just drive away. Huh. Was there an apology? Oh, no.

Now, what came out of that day in Charlotte would end up becoming one of the most important Supreme Court cases in our history when it comes to policing? And what drew me in about this case is how something like... He needed some orange shoes. That. Something so seemingly small. would eventually become tied to this. And all the shootings we've seen in the past years, mostly of young black men,

every time we hear one of these shootings, every time there is an outcry, every time the cop gets off, this incident is looming in the shadows, shaping the outcome. In many ways, it is quietly defying the era that we're living in. And I wanted to know how. How did that happen?

So after that day with the officers in Charlotte The one thing I do remember Dad saying was that it wasn't right Did Thorne was going to fight? Right. And... That is how he ends up walking into Woody's office on crutches in 1985.

And he tells Woody, I want to sue the Charlotte Police Department. So we went ahead and just filed our lawsuit in federal court. Woody takes it to trial and basically his argument is that the police... They had used excessive force that was totally unnecessary

under the circumstances. Like, they run. roughed up a diabetic who was telling them that he was a diabetic. And eventually, the judge presiding over the case, ruled that, no. These officers did not use excessive force. And if you were going to claim that they did... We had to show that the police officers had acted maliciously for the purpose of causing harm. So they had to prove that the officers actually meant to hurt him?

Yeah, that Woody and Dethorn had to prove that the officer. had it out for De Thorn. And we simply couldn't do that. Yeah, that seems like a really hard thing to prove. It's an almost impossible standard to meet. And I think it's important to zoom on this for a second because this is really kind of like the crux of the story. If the question is what should the standard be

for holding a cop accountable for their use of force, then in the mid-80s, malicious intent was sort of the prevailing standard. If you're going to claim that a police officer used excessive force against you, then the standard was that you had to prove that the officer did so with malice in their heart. Why was that the standard? This is kind of hard to explain. I don't have the 14th Amendment in front of me, but it essentially says... All you really need to know is that it was connected to the 14th Amendment to a particular clause in the 14th Amendment. And this is why Woody and De Thorne lost that case.

Okay. All right. So loses at federal court. Loses of Federal makes its way up to The Fourth Circuit Court of Appeals. That went nowhere. The Court of Appeals ruled against us. Same thing.

Same thing. But then, not long after that ruling, Woody gets a phone call. Radio, can you hear me? From this guy. Yep. Jerry Beaver. A known civil rights lawyer in the area.

In Fayetteville, North Carolina. Gerald was older and wiser than me. That's your wording, not mine. Jerry had caught wind of the circuit decision and was just like, Oh, no, no, no, no, no. You should not have to require that the police officer had it in for you and just wanting to beat the crap out of you just because it made him feel better. So I called Woody and said, are you guys planning on taking this case to the Supreme Court?

And Woody was like, no? My client can't really afford that. I said, telling me he doesn't have to worry about that. We will be glad to take it on pro bono and see if we can get this ruling over turn. When he heard that, what he said, Sure. Let's go. So Jerry and Woody get together and they start looking around like what's out there.

What cases can we draw on to argue that there should be a different standard? And this just so happened. This is the mid-80s. And there was this swell of police use of force cases kind of bubbling up in the courts. And you had lawyers trying out all these different ideas. Now, most of the courts were using the 14th Amendment, malicious intent standard that Jerry and Woody didn't like. But then there was also in the number of cases the Eighth Amendment. What's the Eighth?

Cruel and unusual punishment. Justice Breyer? The eighth is cruel and unusual punishment. Problem there. Which doesn't totally explain itself. What is cruel? What is unusual? Like, take the word cruel. Cruel seems to imply bad intent. That you're trying to hurt somebody, which means if you're going to prove anything, you still have to

crawl inside somebody's head. Right. But there was this other amendment that some of the courts were using that Woody and Jerry looked to as they're sort of like Redeemer. The Fourth Amendment. The Fourth Amendment. The Fourth Amendment. Which is... Well, which is the government cannot subject citizens to unreasonable searching seizure.

I have it on my legal pad. The Fourth Amendment is the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. And is seizure just another word for force? Like I have the right not to be beaten or shot by my government? Yeah, yeah. It's not just that, but yes, it also includes that. And to Jerry and Woody, what they like so much about the Fourth Amendment is that in there is that, is this one important word, unreasonable.

Reasonable. The concept of reasonableness. What is reasonable and what is not reasonable. In law, reasonable is supposed to be objective. You look at the case from the facts of the case. You look at the who, what, where, when, not the why. Correct. And then you ask, was this person's behavior reasonable or not?

They have to act with objective reasonableness. Wait a second. I mean, reasonableness is a slippery thing. What you find reasonable and what I find reasonable. Could very well be different. Could be completely different. Yes and no. It can feel slippery, but legally...

The whole concept of reasonableness had hundreds of years of precedent. I mean, I find this very... So in the original piece, we went into a long bit about the history of this idea of a reasonable person, reasonable in quotes, person. This was an idea that had been applied in English law and U.S. law for years and years and years. But the point here is that Woody and Jerry were for the first time taking this standard and bringing it to bear on police actions. And I think like what Woody and Jerry were essentially trying to do is to say we need to use the Fourth Amendment

and this idea of unreasonable search and seizure to create a reasonable officer. So. Riley, the case is submitted. In 1989, almost five years after everything happened to Thorn Graham, that one day in Charlotte. We'll hear our argument next to number 87, 6571. His case went before the Supreme Court. De Thorne Graham versus M.S. Connor. Now, Thorne wasn't there for the arguments.

What he was there? As a spectator to watch. Jerry was actually arguing the case. Did you have butterflies? Of course. You may proceed whenever you're ready. Mr. Chief Justice, and may it please the court. And pretty quickly, these arguments...

You don't know it's... ...the beginning of... ...unless you know what the subjective intent of the officers are. Turn into, like, this word soup. Some option. Objective standard. Where you got Jerry. Objective.

Whatever. The lawyer for the officers. Subjective. The justices. The objective subjective dichotomy. All getting super meta about what constitutes objectivity. Objectively unreasonable. Subjectivity.

Subjective factor have analysis tests and standards. Severe objective tests. The objective analysis. Bad intent, no intent. Subjective intent. I think we're playing with words there. Until. Well.

One justice, Thurgood Marshall, the lone African. American on the court. Comes in and just asks, What reason was there for handcuffing a diabetic in a coma? At the time, the officers didn't know that he was a diabetic in a coma. What was he doing that was so violent that he had to be handcuffed? He had to go back one step even before that. Officer Connor saw a petitioner acting a very suspicious and unusual manner. Violent?

No, it wasn't clear. He saw him hurry into a convenience store. What did he? What did he do that was violent? Excuse me? What did he do that was violent? Mr. Barry's testimony, as Petitioner's own witness, said that the petitioner was throwing his hands around, that Barry had asked for Officer Connison. What was he doing?

I'm talking about before they put the handcuffs on him. What was he doing before they tried to put the handcuffs on? He was acting in a very bizarre manner. He ran out of the car, circled around it twice, and then sat down. The district court Was that threatening anybody? Did he strike anybody? Well, the officers didn't have to wait until he was used. Did he strike anybody?

I don't believe the record indicates that he struck anybody. Did he threaten to strike anybody? He was acting in an unpredictable and potentially dangerous manner. Can you answer? Did he threaten to strike anybody? He did not overtly threatened to strike anyone. Did he have a weapon of any kind? The record doesn't indicate, I don't believe.

The record didn't show he had a weapon of any kind. That's correct. Why was he handcuffed? The record shows that he was properly stopped as a suspect for a criminal investigation, that he was acting in a bizarre manner. Indeed, even after he was handcuffed and the officers wanted to put him in the car, the undisputed record shows that he was vigorously fighting and kicking. Was certain of diabetic object to being arrested rather than giving treatment?

He wasn't arrested. He was never arrested. Why was he handcuffed? He was handcuffed because the officers were concerned that he was a criminal suspect. He was acting in a very unusual and erratic way. He was throwing his hands around. Indeed, the district court stated from the record that he was handcuffed in part to protect himself as well as the officers and others. Well, they protect him, sir. That's the district court summarized the record as indicating that.

That's correct. Now, may I differ? May you differ? When Justice Marshall said, that suddenly I heard a judge who understood our point of view. Somebody gets it. And all of a sudden, I felt like I was not an idiot after all. The court eventually puts out their opinion.

It's written by the Chief Justice William Rehnquist. And in that opinion, Rehnquist says, skipping down here a little bit, claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other quote-unquote seizure of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right to be secure in their persons against unreasonable seizures and must be judged by reference to the Fourth Amendment's reasonableness standard. So they get their reasonable officer standard? They get it, and they get it unanimously. The 9-0 opinion.

Whoa. It was a breakthrough. I don't think it'd be a stretch to say that at the time, to a lot of people who were concerned about police brutality, police use of force, it felt like this was the beginning of a new era. That favored plaintiffs and claimants. Because now, if you were a victim of police violence and you wanted some justice, you had this new universal standard. An objective standard. We no longer had to show that the officers acted maliciously or sadistically. You don't have to get inside the officer's head.

You don't have to prove that they had bad intent. Look at the case. From the facts of the case. And you say, would a reasonable officer do the same thing or not? And you could establish what a reasonable officer is, what they would do by calling experts looking at data about age and rank and experience all sorts of things. But the thought was that this would be objective. For the first time in hundreds of years, maybe they would have an objective standard. That was a breakthrough.

So after winning, did the case get kicked back down to the circuit? Like, what happens to the Thorn? After we won in the Supreme Court, the case went back to the trial court level for another trial. Okay. That was the effect of it. And so Mr. Graham had another day in court, another trial. We picked another jury. The facts were presented.

Diabetic, insulin reaction, bottle of orange juice, pulled him over. Unconscious. Handcuffed. Physical altercation. Broken foot. Lacerations wrists, bruised forehead. Squad car. Front yard.

Essentially, he was a guy who did nothing wrong and was beaten up. The case was given to the jury. And the jury was told, okay, knowing what you now know, take this standard, this reasonable standard, and ask yourself, is what happened to the Thorne Graham reasonable? The jury deliberated, came back out. And they decided in favor of the police officers. Mr. Graham lost. Now, whether you think this is reasonable or not, the jury really focused in on the police officer's perspective. And from the officer's perspective, all they saw was a black man running in and out of convenience.

store. They thought he might be stealing something. They had no idea he was a diabetic. And when the police picked him up, he was a little bit out of control. He's acting weird. He's running around the car. Creating trouble. Not because he's a diabetic. But he's a drunk. Might be dangerous. A reasonable officer would subdue that person. Excuse me. I'm so sorry. Oh, did that a doorbell here?

There goes the dogs. Oh, the dogs. So when I talked to Thorne Graham Jr., he was actually moving from his home in St. Louis. I'm just going to open the garage up for this guy. Back to where he still had a lot of family in Charlotte. Okay. I'm back. Hopefully. All right. Cool.

Okay now. I was just wondering, did your dad talk about the, about what happened that day? Or did he talk about the court case at all? No. He didn't. It wasn't something that he talked about. De Thorne Jr. says that his dad was just kind of trying to get on with his life. He started making furniture in his spare time. Going to church a lot.

But he had his troubles. He ended up having substance abuse issues. So, and which fortunately he was able to overcome that. That was after the Supreme Court case. That's correct. That's correct. And so, I mean, I don't know if his way of trying to deal with that was through substance abuse. I don't know.

You know, you know, when you are dehumanized like that, when another individual, whether they, it's you know it's it's it's kind of hard to explain matt but when when someone who has authority just it's it's it's it's like it's they it's take something away from you when someone does something like that to you it strikes at your core it strikes at your very being and i think you lose a part of yourself that you can't get back De Thorne Graham Sr. died in the year 2000. He was 54 years old. But after his death, his name lived on in this case in this very weird way.

So 2014. Remus growing outrage tonight after an unarmed African-American teenager was shot and killed by police in the St. Louis suburb of Ferguson, Missouri. Not far from where De Thorne Jr. lives, a white officer, Darren Wilson, shot and killed a black teenager Michael Brown. A reporter from CNN contacted me, and he talked about how they were going to use my dad's case doing that trial. As a defense for the officer. The CNN reporter informed me.

Do you know about this? No, I had no idea. The grand jury deliberated over two days making their final decision. One of the questions posed to the jury was, did Officer Darren Wilson act reasonably when he shot Michael Brown? They determined that no probable cause exists to file any charge against Officer Wilson and returned a no true bill on each of the five indictments. And the jury was basically like, yeah, that was reasonable.

They're straight, they think this a fucking joke. They killed her baby, man. They won't have back in Ferguson. I can't get nobody back. Later that same year, The 12-year-old boy shot and killed by two officers while holding a pellet gun. Timir Rice? We are instructed to ask what a reasonable police officer would do in this particular situation. The jury found that the officer who shot and killed the 12-year-old boy Tamir Rice

acted reasonably. And then... Hi, Jeffrey! Eric Garner. A grand jury in New York City has refused to indict yet another white police officer said to have killed an unarmed black man. His death was reasonable. John Crawford.

22-year-old black man killed last month. Reasonable. Carrying around a BB gun. After a judge declared a mistrial today. Samuel DeBose. In the case of a white police officer who killed an unarmed black man. Reasonable. With Sterling on his back.

Alton Sterling. One officer pulls his gun. Reasonable. Sterling late dying on the street. Terrence Crutcher. An unarmed black man. Reasonable. Shot and killed by police in Oklahoma.

Charlotte Police. Keith Lamont Scott. Jamar Clark. This city kill my son. Philanda Kis. steal reasonable. Are you kidding me right now? We're not evolving as a civilization.

We're devolving. We're going back down to 1969. Damn! And in almost every one of those cases, Graham versus Connor, the Supreme Court decision that many people felt was supposed to establish a new universal standard that would deliver justice for victims of police violence. In almost every one of those cases, it ended up doing the exact opposite. It prevented the victims from getting relief and instead protected the cops.

One person, my colleague who covers cops, describes it as like cops, cops see it as like their First Amendment. After the break, we'll ask, how did that happen? And we'll watch it happen. We'll be back in a moment. Hi, this is Dustin Routzon from Troy, Alabama. Radio Lab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.

I'm Chad. This is Radio Lab. One of the things that sets this incident apart, the George Floyd incident, I mean, I say that because the radio lab piece that we were playing and will continue to play in a second was made a few years ago. So this is me back in the present. One of the things that sets this case apart from all the other incidents where a black person has been killed by a police officer is that no one is defending it. you've got police and police administrators stepping forward and saying, this was not reasonable. Nonetheless, that is the standard that Chauvin may face in court. And as we all know, in dozens of similar cases where a black person has been killed by a police officer,

the officers have never been found guilty. Almost never happens. And so the question that I asked producer Matt Kielty and Kelly Prime was why. Well, it's because the reasonable officer standard, like from the moment that it was created, it was actually kind of, it was constrained in a few very important ways. Yeah, and actually, like, I have here the jury instructions from the Ninth Circuit. And this is what jury members are told to think about when they have to assess this kind of use of force case. Oh, sweet. You just want to read those? Yeah, yeah.

This is what the jurors are actually told this is your job? Yeah, exactly. Just a back ID, prime time, Kelly Prime. Yeah. So it says, under the Fourth Amendment, a police officer may use only such force as is objectively reasonable. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with 2020 vision of hindsight. Those are a couple really crucial phrases, which is perspective of an officer on the scene. So you have to look at it through the eyes of the officer on the scene.

the scene and then you can't look at it through the 2020 vision of hindsight. So you have to put yourself in the shoes of an officer in the moment and look at the world through their eyes and that's how you have to understand these things. Right. And where did that, where did that idea come from? So that comes from Graham. Like that comes from the chief justice, William Rehnquist's opinion, which I have right here. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. rather than with the 2020 vision of hindsight. And its calculus must embody an allowance for the fact,

and this is extremely important, that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. And so, as you can see, this idea of reasonableness is circumscribed very tightly by time. It's not asking what a reasonable officer would do here in general during a moment where they have to use force. Instead, what it's asking is what would a reasonable officer do in this split second, in this little tiny sliver of time where the force actually occurred?

And in fact, that moment legally has come to be known as a superseding event. Meaning what? What does that mean? Meaning, this is, I find this kind of crazy. Meaning that that moment, that superseding event, essentially it breaks. the chain of causation. So if you think of time as just this continuous flow,

this is like, no, you break that, you stop that, and you take this one little moment and you pluck it out and you're like, this moment, this is the one moment that you look at. That's all that they can think about, the jurors. Right.

And it turns out if you ask a jury the question about use of force that way, about this one little moment, the Graham standard that many people thought and hoped would have help victims of police violence does the exact opposite. One person, my colleague who covers cops, describes it as like cops. Cops see it as like their First Amendment.

They just think of it like as a shield? Yeah. Okay, so this is NPR reporter Kelly McEvers, host of Embedded podcast and all things considered. So Kelly's actually, she's covered police shootings for the past like year for NPR. And we've sort of been comparing notes with her as we've been producing our story. And a little while back, she sent us. an email basically saying that she had this opportunity to go and see something that most people

don't get to see, to sort of see how cops are actually trained to understand Graham. And so she asked us, do you want in? And we were like, yeah. Okay. So I went to Cleveland. For this two-day training course called for this two-day training course called Street Survival. It was in a hotel ballroom. One of those hotel ballrooms where you have like a big conference. How many people? Do you remember?

There was somewhere just under 200. Cops. Lots of really jacked dudes with tats. Mostly white. There were some sergees, some lieutenants. Rookies right out of the academy, some mid-career guys. From all over Ohio, Pennsylvania. And they were not super happy about me being there.

Did you get like angry stairs? I mean. In the beginning, There's just like a lot of side-out. Good morning, Cleveland. How many of you have been to a Calibur Press seminar before? Please show hands. Let's do it this way.

Who's never been here before? Never been to a caliber press class. Oh, wow. Good. Good deal. Kelly said the whole thing is put on by this company. Called Calibur Press. It's a company that's actually been around for a really long time, and they teach classes.

Classes that are aimed at police departments, they offer them all across the country. In this particular one. We're going to talk a lot about stress, survival instincts. The general idea is. how to survive and, like, make it to retirement. I mentioned heart attacks, emotional health, suicide. You know, how to basically do this job and... It's really about 24-7 survival.

And live. Living and lasting a 25, 30-year career. They talk a lot about self-care, about sleep and exercise. My wife and I talk about this. If I start getting crab years, there's something else there. Making sure that your spouse and your family, like, understand the stresses of your job, and they talk about going to therapy.

I mean, it's like, there's times when it's this really touchy-feely kind of thing. I started getting overwhelmed. I didn't know what was happening with me. There was in a moment she says when an officer got up, talked about contemplating suicide. My wife kept up telling me I needed to get help. I started secluding myself. I started alienating myself.

It was fucking hating everybody. Everyone was like crying. So, I mean, it's a really intense couple of days. But for our purposes, the reason we were there, or the reason we were excited for Kelly to be there, is that a big chunk of the class... So, all right, let's talk about the... ...is devoted to Graham.

About Graham versus Conner and us actually use its force. About teaching these cops how to understand Graham and how it impacts their lives. By the way, this is the instructor. The, like, Graham instructor, his name is Jim Glennon. He himself was a cop for years and years and years. I was in charge of use of force for 18 years. It was a lieutenant outside of Chicago.

And I tell you, we talked about Grand versus Conner and our use of force policies on a regular basis. I don't mean I got up four times here and just read. What I would do is show a video, and then let's talk about Branden versus Connor based on this video. So, fired up the projector. Come on. It is really interesting to see these videos from their perspective.

Like this one. September 2015, a guy named Freddie Centeno. 40-year-old Freddie Centeno. He's gone to a woman's house, like to a woman's front door, and threatened her and says he has a gun, and the cops pull up. Get out of their car. They're just like 20 feet away from Centeno,

who's walking towards them on the sidewalk. Hey, President President. Ten shots, seven of them hit. The sequence was 47-ranked long. It translated to about 1.566 seconds. Jim's claims it happens in 1.566 seconds. And in one of the old mentally disabled man is hit seven times and dies in the hospital 23 days later. And in one of these news clips that Jim shows, the lawyer for Freddie Centeno's family is basically just like...

This is a bad shooting. It's an atrocity. Like this was an atrocity. Nothing about this use of force should be considered reasonable. Because the cops in this situation, they rolled right up on Freddie Centeno. They didn't create any space. They didn't give Freddie Centeno any time. They tell him, get on the ground.

He didn't have a chance to get on the ground. One second before you began to fire. In Gazzar's view, the video shows the officers did not give Centeno a chance to respond to their command. So Jim plays all these reaction clips. And then... Here's what happens. It's real quick. He plays the original body cam video again. Hey, President.

You see Freddy Centeno? They tell him to get on the ground. He doesn't. And then Jim slows the video down. And when he does, you can see Centeno's right hand. Reaches into his pocket. Jim pauses. And he's like, take a look at this right here.

And up on the screen, Jim has this frozen moment where you can see that Freddie Centeno's hand has started to move. The movement of a hand in a couple of inches. Just starting to come up out of his pocket. This moment from the pocket to the out of the pocket. This to Jim was the moment. The moment. Remember that word. Jim's like, this is the only moment that matters. Like, forget what happened before.

Forget that the officers rolled right up on Seteno. Forget that they weren't giving them much time or space. It's this moment right here. When Centeno starts pulling his hand out of his pocket, This is the moment where you ask the question, what would a reasonable officer do right now? This man appears to be pulling out an object from his pocket. I can't tell what it is and you probably can't eat it without outside information. Turns out he had a nozzle from a garden hose.

What was the call, male at the gun? However you see this, whether he's starting to move it up or down, he doesn't go to the ground, he goes into his pocket and pull something out. They think it's a gun, and a reasonable person would think it's a gun. And so... Is this work under grand? Yeah, it's sad, yeah. But yes.

Yes. Under grand, it's fine. I believe it. For him, he's just like over and over and over stresses. What would a reasonable police officer do? At the moment you used force. In that moment. What did you know?

Not what you could have known, not what you should have known. What did you know? What was going on? Look what it says up there. He talks about Rehnquist, and the decision he's like, what Rehnquist said is, Allowance must be made for the fact. Police officers are often forced to make split-second judgments and circumstances that are tense, uncertain, rapidly evolving about the amount of forces is necessary in a particular situation. This is fast. It's dynamic. It's nothing like television. There's no five cameras on it. There's no change in the music. There's no upswell in the music. It's fast. And the court recognizes that.

This is an Albuquerque case. Jim plays another example. This one of a guy, a white guy who police officer shot because they thought he had a gun. Guy did not have a gun. Guy did a knife. But the cops had in a call that he had a gun. had a gun and in this split second he raised his arm like he was raising a gun up and so the cop shot him. This is this work under Grant? Yeah. Another one?

I talked to this officer. He gets a call to a domestic. Showed another video of a police officer shooting an unarmed white man in the head and again he walked through it beat by beat. With Graham, you got to put yourself in that officer's position, right? Said you got to look at just a superseding moment.

Forget everything else. And what you realize if you do that, if you force someone, say a jury, to look at just that one moment forgetting everything else, just look at this one slice through the eyes of an officer then the whole concept of what is reasonable shifts.

And the only real question you can ask when the moment is so confined is did the officer feel threatened? Like, was the fear that that officer had a reasonable fear in that moment? And that is a very different

standard than what Woody and Jerry and Thorne Graham had intended. Yeah. So what we learned at that point was the way in which this reasonableness standard had been reduced to apply just to a particular moment, a slice of a moment. And in many of these cases, the central question then became simply, was the officer afraid in that moment? And in the context of these killings, as Kelly McEvers pointed out to us, that is a very loaded question. Like this is the thing. Like, if you're white, are you more likely to say yes, that was reasonable because he's white and he was afraid of a black man.

Right. Like, that is the question. I don't know, given the history of our country, I'd say in many cases, that's not even a question. Right. But I guess the question I'm actually left with is, if this is where the reasonableness standard has led us, is there another standard? I think that's right. This is Woody Kinnett again. He represented De Thorne Graham in that original case.

When you see it applied, you wonder whether or not this is the best standard or there might be something better. I just don't have an answer to that. I would suggest a whole more radical standard that. This is Ellie Mistal, more perfect legal editor. We ended up talking with him about this shortly after the Philando Castile verdict came out. So he was, well, that was a tough pill for him and many people to swallow. I would suggest that they have to be, the cops have to be right in fact, which is something we usually do not apply to the law. What does that mean?

Like, from a, in the scenario of a police person who's, does that mean like, I need to be right that you don't have a toy gun? Yeah. Is that, that's what you mean? Yeah. So if you shoot me because you think I have a gun, I had best have a gun. And if I don't have a gun, your ass is going to jail because you were wrong. I don't care if you really thought so. I don't care if I was telling you I had a gun.

If I, if you are not right in fact, then you have to go to jail. I think that is that that would be a standard that would allow us to prosecute these police officers. But then a police person is going to just going to argue that like you don't understand the pressures that I'm under. It's a split second decision. Monday morning quarterbacking. If you do what you just said, we're not going to be able to do our jobs.

And I would say, thank you, police officer. I'm sick of you. I would say, screw you. You have had your chance. You have had your chance. to police my community without murdering us, and you have failed for 300 years. Enough.

That's what I would say to that. More people might get hurt if I wasn't, I'm willing to risk that. I'm willing to try it that way then. Gotcha. I'd rather, I'd rather 10 illegal shoplifting people go free than one illegal shoplifting person get shot in the street like an animal.

Gotcha. If you want to talk about changing the standards, that is a standard change that could help. Now, that is, as Ellie said, radical and probably not realistic, given that most Americans, according to polls, respect the police, have confidence in the police, perceive police to be, you know, the enforcers of the law. But there are other ideas out there that are starting to bubble up. And if what's constraining us, if what's keeping us stuck where we are, are the words of Graham, then what offers us a way out could actually also be hiding in there. What do you mean? Okay, so you know how Chief Justice Rehnquist, when he wrote the decision in 89,

he put in all these phrases that took the idea of a reasonable officer and constrained it. Right, right. These were like, it's constrained only to this little moment in time. It's constrained to the perspective of the officers, constrained that there's no 2020 hindsight, all of that stuff. Well, in the decision, he also, he slipped in this other phrase. He was actually calling back to an earlier decision. And what he wrote was, the question is whether the totality of circumstances

justifies a particular sort of seizure. The totality of circumstances. Totality of circumstances, which, you know, it seems to be at odds with all of the other stuff. Right, which is all about like little slivers and moments. Yeah, it's about all these little tiny little bits of time where a totality of. seems to be suggesting that this is like, this is the whole thing. So he had both ideas in there at once? Yeah, which is why right now you see the lower courts are arguing about what this phrase actually means.

And so half of the circuits are saying kind of like everything that we've already talked about, which is that all the totality of circumstances means is that you look at everything to answer the question, was the officer scared? You look at everything that the officer would have known, everything the officer would have seen, perceived. And then you ask, okay, knowing all that, was it reasonable for the officer to be scared in the moment? The other half of the circuit say, no, no, no, totality of circumstances isn't just about what the officer knew, what the officer saw, and how it answers the moment. Totality means, like, totality. Like, what did the officer do leading up to the moment?

Did the officer try to get a search warrant? Did the officer try to de-escalate the situation before using force? Did the officer try to subdue the person before using deadly force? Like suddenly all those things that are usually kept out of the frame maybe can be let back in. The Supreme Court so far has shown no interest in ruling on this in trying to sort this out. But they might because the argument is happening in the lower courts.

So in a way, we're kind of living at a time very much like 1984 when the Thorne Graham got pulled over outside a convenience store in Charlotte, but waiting to see whether it matters that De Thorne Graham wasn't trying to steal anything, that he was just a diabetic, trying to get some orange juice. Okay, so we first reported this story in 2017. And after the death of George Floyd, which sparked global protests, after charges were brought against the officers involved, we at the show began to ask ourselves,

how would this standard, this reasonable officer standard, which has been used as a defense for cops again and again and again, how might it apply here? Safe. And then, so I sound okay. Yeah, you do sound good. Or would it even be used? So I called a few different people and was told yes, but not quite in the way that maybe I would expect.

Well, actually, one thing before I get into this, I wanted to ask you, happen to have the charging document. So I was talking to this guy, Sharag Baines, who used to try use of force cases in civil rights cases. I'm just waiting for to come through. Okay, I got it. So Derek Shalvin is the officer who was pushing his knee into George Floyd's neck. And he is facing, among other things, second degree unintentional murder.

Okay. And to kind of oversimplify this, basically means that the charges that Shalvin, by pushing his knee into George Floyd's neck for nine minutes, whether he intended to or not, led to his death. And the thing that Cherok said to me that was kind of surprising is that because this is a criminal case, it's not the reasonableness standard isn't going to be the front and center defense here for Chauvin. So what might the defense be? One defense will be he didn't cause the death. Really? So they're going to argue that somehow the force being applied to his neck wasn't what killed him? Right. He's going to use likely the, what was in the initial autopsy report saying that

Floyd didn't die of asphyxiation and that there were these underlying health issues. Counter argument from the prosecution will be George Floyd wouldn't be dead if it were not for Derek Chauvin. He wasn't going to die 17 minutes later if he was just sitting in his car or doing whatever else. It was it was Derek Chauvin's knee in George Floyd's neck that triggered his death. There's clear causation as required for criminal statutes. I think Chauvin loses that defense. So another argument Chauvin's lawyers might make is that George Floyd. He was resisting at certain points.

He's very strong. And so they might try to claim self-defense. Even in the Rodney King case where he was being beaten over and over and over, there were self-defense claims. Because it'll be like the minute details. You couldn't see this on the video, but he moved his leg a little bit. And I was telling him to put his leg down. This sort of thing they'll say, we didn't know.

They'll try that. And then the prosecution would say, no, no way. The prior stuff was minimal, and it was prior. He's handcuffed. He's on his chest. Right. He's on his chest. I mean, he's got three officers.

on top of him. He's not resisting in any way. So I think the defense will be made. It shouldn't prevail. So then Sharak said, it might be that at this point you would see a reasonable standard defense. In that, in Minnesota state law, I pulled a couple of statutes, there is some authorization for use of force. And, you know, it says reasonable force may be used upon or toward the person of another without their consent by a police, by a public officer in affecting a law. of arrest. Basically arguing it's not criminal if it's reasonable. It can't be criminal to use force if he's used it consistent with that law. And so one thing that's been floating out there is that at the time of this incident in the Minneapolis police department's policy and procedure manual,

it did state that you could use a neck restraint. You could use your knee on somebody's neck to restrain them so long as you weren't blocking, you weren't putting force on their trachea or blocking their airway. You can even apply that force according to the manual to the point where somebody passes out. That could be one way they frame this reasonable argument. They'll just point to 609.06 and say like, look, that says reasonable force. I thought it was reasonable force. But the problem for Chauvin is that to use that type of force, a neck restraint force, to the point that somebody is unconscious, you have to believe that someone else's life is in danger, you have to be struggling with a suspect who is aggressively, actively resisting arrest.

And Chirac says, again, like, look, George Floyd clearly was not even capable of actively resisting. So there's no world in which this is reasonable. There'll be so many people lined up who should say this is unreasonable, right? Like, we saw it. You've never seen before. Police chiefs come out on Twitter. Right, exactly. Right.

So I think there's a major consensus that's unreasonable. And then him saying, well, I wasn't trying to constrict his breathing. I was doing something else. He may try to do that. Chauvin may say that. The response to that will be whatever you were intending to do doesn't matter. It's what you did. You know, I cannot see any scenario using even the Graham standard that that is reasonable.

So one of the other people I spoke to was Don Lewis, who is an attorney in Minneapolis. And it was actually Don who told me this thing about Reasonable that I didn't expect, that it probably won't show up in Chauvin's case. But it will be at the heart of this case primarily with the accomplice officers. The other three officers who were at the scene who have now been charged with aiding and abetting. We've already had a hint today. The officers had their initial appearance today, which is kind of the first appearance you just show up and, hey, you know, identify yourself. do you have a lawyer and set bail and all the kind of stuff?

And Don said one of those officers. Thomas Lane. He was one of the officers on top of George Floyd. Holding down, I think, his lake. His lawyer in this preliminary hearing said, Well, what is an officer supposed to do? You know, and, you know, he's supposed to do what he's trained to do. And Don explained that Derek Chauvin was the senior officer there at the scene.

He was a 19-year veteran. He had trained officers in how to use force. And so the other two officers who were on top of George Floyd, Officer Lane and Officer Kung. These were the two younger officers who had been on the force for, I don't know exactly how long, but it could be less than a year. And they are basically following the lead of the principal officer, Chauvin. And at one point, Thomas Lane says, you know, I think we should, I'm paraphrasing, he's saying, you know, I think we should roll him over because it looks like he's in distress.

And he says something along those lines twice. And Chauvin says, no, we're going to keep them right here. And Don said from the perspective of the defense, if you're Officer Lane or Officer Kung, you were doing what a reasonable officer would be doing. Obeying, you know, the senior officer on the scene who's telling me that this is the proper way to do things. Now, and it gets, like, it gets tricky. Like, that very well might be an argument the defense makes. But if you look at Minneapolis, the Minneapolis Police Department's procedure and policy manual in the use of force section, there is a small category there about a duty to intervene, that an officer has a sworn duty to intervene if they see another officer essentially doing something that they think is unreasonable. Wow.

It is true. I mean, it's interesting, just given the conversations that are happening just in the, at large, that the real reasonable, questions are not, did this guy apply force appropriately to George Floyd? Anyone who answers yes is just insane. But it's actually like the people with him, what responsibility do they carry, which is, you know, the big conversation that everyone's having right now, which is the people that are silent, the white people that are silent, what responsibility do they, we have, right? It's interesting that that the legal question about reasonableness might actually be the context around.

the force or the the bystanders or the the people adjacent to the force the people who could speak up and intervene it is interesting that's not what I expected but that makes a lot of sense yeah I mean do you do you there's when looking at the video it seems so clear like it I feel so certain that that these officers and and Chauvin will be will be convicted because because the video is just so damning. Yeah. But then again, it's like, I feel like I've had a similar thought in the past.

Well, you know, the, you know, I, you know, prosecuted the Philando Castile. I was what the special prosecutor in this Philando Castile matter. So, Philanda Castile, this was 2016, he was driving, he had a gun in the car when he was pulled over by a police officer. Philando Castile told the arresting officer they had a gun in the car that he was licensed to carry a gun. And most likely, while reaching for his license, made a move with his hand towards his waist. The move that the officer, and the officer was frightened, he thought he was reaching for the gun and he shot.

That's a perfect example of where this reasonable police officer standard, you know, fits. There's a gun, things are happening fast. I recognize the ambiguity there. But as Don pointed out, as anybody points out, like, there's just no ambiguity when it comes to, George Floyd's death. But let me cite an example that you would have thought would have been a clear-cut case, the Walter Scott case in South Carolina. This is a case where a black man, again, it's a traffic stop, stopped by a white officer,

eventually a physical altercation ensues, and while Walter Scott is running away. Running away unarmed, he's shot in the back. I mean, the jury hung. you know it's yeah but you know one thing that is kind of missing from all this and I don't see this embedded in in the Graham versus Connor or any other standard but let's let's not forget we got step back and say why are we you know you know I wish the officers would at a moment sometimes step back and say okay why did I come here to begin with and the answer is question is A convenience store owner called because someone passed him a connoffit 20.

And where am I now? I'm strangling somebody to death. Why aren't people thinking about that? This story was produced and reported by Matt Kielty, with a big assist from co-producer Kelly Prime. Also thanks to producer, Random Kewan. I'm Chad Abumrad. Thanks for listening. The Shockwan calling in from Columbia, South Carolina.

Radio Lab is created by Jad Abumran with Robert Crulwich and produced by Soren Wheeler. Dylan Keefe is our director of sound design. Susie Lechtenberg is our executive producer. Our staff includes Simon Adler, Becca Bressler, Rachel Cusick, David Gebel, Bethel Hapty, Tracy Hunt, Matt Kilty, Annie McCune, Latif Masser, Sarah Kari, Ariane Watt, Pat Walters, and Molly Webster, with help from Shima Oliai, W. Harry Fortuna, Sarah Sandback, Melissa O'Donnell, Tad Davis, and Russell Gregg. Our fact checker is Michelle Harris.