Radiolab - Radiolab Presents: More Perfect - Mr. Graham and the Reasonable Man

Episode Date: November 30, 2017

This story comes from the second season of Radiolab's spin-off podcast, More Perfect. To hear more, subscribe here. On a fall afternoon in 1984, Dethorne Graham ran into a convenience store for a bottle of orange juice. Minutes later he was unconscious, injured, and in police handcuffs. In this episode, we explore a case that sent two Charlotte lawyers on a quest for true objectivity, and changed the face of policing in the US.     The key voices: Dethorne Graham Jr., son of Dethorne Graham, appellant in Graham v. Connor Edward G. (Woody) Connette, lawyer who represented Graham in the lower courts Gerald Beaver, lawyer who represented Graham at the Supreme Court Kelly McEvers, host of Embedded and All Things Considered    The key case: 1989: Graham v. Connor   Additional production for this episode by Dylan Keefe and Derek John; additional music by Matt Kielty and Nicolas Carter. Special thanks to Cynthia Lee, Frank B. Aycock III, Josh Rosenkrantz, Leonard Feldman, and Ben Montgomery. Leadership support for More Perfect is provided by The Joyce Foundation. Additional funding is provided by The Charles Evans Hughes Memorial Foundation. Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell.

Before we get going, just a quick warning, this podcast contains some descriptions of graphic violence and also some strong language. So be warned. Wait, you're listening. Okay. All right. Okay. All right. You're listening to Radio Lab.

Radio Lab. From W N. N. Y. C. See? Yeah. So nice to see you again, Chad. Why did you say that with some venom? What was that all about?

It's just you've been away for a while. The only way I can see you is when I come visit you with your other family. Okay, so this is Radio Lab producer Matt Kielty. Yeah. We're talking about, what are we talking about? We're talking about a Supreme Court case from 1989. And today Matt has a story that he's been reporting for about two years, that we are going to play both here on More Perfect and also here on Radio Lab.

So buckle up. Where should we start? 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. Late 30s, fairly thin. Five foot nine, five foot 10. 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 repair. It was a Monday afternoon, and on that day, one of Dethorn's friends, a co-workers, stopped by his place. And after talking for a bit, Mr. Graham asked to be taken to a nearby convenience store. There 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 juice. 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 the Thorn 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 De Thorne'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 De Thorne, who's in the passenger seat of the car, suddenly opened his door, got out of the car. Circled the car once or twice.

Like sort of stumbled around it. Then he sat down on the curb. And he started going into shock. 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 in 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 blood sugar. And once you got the orange juice in him, he'd sleep for a couple hours. 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 De 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. But he was a diabetic, that 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 De Thorne'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, each leg and just throw him into the back of a squad car. Mm. Mm. 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 Thorn'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 shooting 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? Deep justice and the associate justices of the Supreme Court of the United States. It was before the honorable, the Supreme Court. Court of the United States for it managed to draw near and give him. To wind back the clock a little bit. I will say this about my dad now. He wasn't someone that would just lay down and roll over.

Talking to Thorne Jr., I asked him a little bit about his dad, and he told me that Thorne Sr. He grew up in the South. Eastern North Carolina on a tobacco farm. He was a hard worker, good student. His sisters told me that he was the first black or African-American accepted to Duke University. Huh.

But my grandmother, she would. and let him go because of, you know, doing the civil rights era that she didn't want them to have to experience all that, all that mess. This is a CBS News special report. And just for a little bit of context here, I mean, like the civil rights movement was a lot of things. But there was this big part of it that was about police brutality. Last night, there was open war. In 1965, you had the infamous Watts riots in Los Angeles. Snifers make the states of battlefield.

Also, what was known as the long, hot summer of 1967. Are we going to die for our freedom? Where there were more than 150 race riots across the country. Getting tired of you and pushed around with your white people, that's all. A lot of which were sparked by accusations of police brutality. Stopping us on the street, kicking in the door, taking down the police station, you're kicking your teeth in. I will not accept charges against policemen. I will not accept charges against policemen.

This is a judge, not some wild-eyed cracker that made this statement. Although there might not be any difference. There might not be any difference if you can think on that. You understand that? If we cannot bring charges against the policemen who have murdered us and destroyed our homes and businesses, where will we go? Where will we go? She didn't want him to have to experience all that mess.

So he ended up, I think he ended up going to Fayetteville State. A historically black college. In North Carolina. And when De Thorne Senior graduated, actually one of the first jobs that he had. He worked for an employer called Precision Springs. This was a steel company that specialized in making springs, but at a certain point, he ended up actually suing the company. For discrimination based on how they were treating people of color.

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. 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 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 college har. So they had to prove that the officers actually meant to hurt him? Yeah, that Woody and Dethorn had to prove that the officers had it out for Dithorn.

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 in 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 at 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, no. You should not have to require that the police officer had it in for you and just wanted 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 what he 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 all. 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. Hey, 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 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 there's sort of. sort of like Redeemer. 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 person's, 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, like, 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 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?

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 fascinating. And I don't know if you want me to give you like a little bit of a backstory. Well, do you want to give me a little bit of a... I think it's interesting how it came to be and how popular it is. Yeah, take me on the ride. Okay, all right.

So we go back to like the 1830s. Is that Andrew Jackson area? No, he's 18. No, no, actually, we're over in Europe. Oh, we're in Belgium. This is going to be like a little windy, but I think it kind of makes sense. So in the 1830s, this guy, Adolf Kettleay. Adolf Ketelay is a mathematician.

He's an astronomer. If you want to picture something, he had hollow cheeks, these big sideburns. looked a little bit like David Straiturn, the guy from the Edward Murrow movie, the Jason Bourne movies, if that helps you at all. Yeah, yeah, totally. It's great. Anyhow, he was a super smart guy, and in the 1830s, the Belgian government wanted to set up an observatory, but astronomers had this issue that they had trouble pinpointing the location of stars because their telescopes were just so bad. But Kettley was one of these astronomers who knew you could use statistics to figure these things out. You could take an average of all the different measurements, an average of the meteorological data, and that could help you pinpoint where stars were actually going to be in the sky so that they could make predictions.

That's interesting to know that. Yeah, the statistical average thing was like revolutionizing astronomy. And so what happened is Ketalai became fascinated by this idea of averages. And what he did is he kind of took that idea, like took it down from the heavens, from the sky, and started applying it to humans. So he began combing through data in medical journals, trying to determine the average height of a person, the average weight, the circumference of somebody's chest.

Was he trying to come up with these sort of proto-man kind of thing? Yeah, totally. And it would have a huge impact on public health. But he ends up actually going beyond this, and it's beyond just like physical traits, and he starts to like push into man's morality. And he's looking at crime rates, suicide rates, marriage rates. And in the 1830s, he starts laying out.

this concept, what is in French, loam moyen, which translates into the average man. The average man. So this is like Big Data 1830 style. Yeah, and this idea, lo mien, the average man, it became very useful in law, English law. Really? How exactly? Let me explain. In Victorian England, there was much ado about people who wanted to sue. For damages or left in bandages, there was a need for constant averages, a way to take measure in stock to see if a person had straight from the flock. This surely seemed like the best way to determine if the accused had to pay. What are you doing?

Oh, that stands a one. All right. On a two. English judges, they decreed, here's how he will fill this need. Put a man on the stand, have him raise his right hand. Let's say he stacks some hay in a terribly negligent way, much more like a funeral pyre caught his neighbor's home totally on fire. But he says the days are hot and long, that he did nothing wrong. So, Jury, I ask of you, what is it that we shall do? How about think of ordinary folk, your average, typical, reasonable bloke?

And then, Jure, take a look at the accused at hand and ask yourself this one question, did he behave like your ordinary, average, reasonable man? Wow. What? What? I didn't even know you had that in. Okay. So you're saying that judges. and juries began to use these averages as a way to sort of like figure out, like, if you're suing somebody else, that the somebody else did they act out of the ordinary? Were they unreasonable?

Yeah. And it was just a few years after Ketelae and this whole average man thing that English law started developing this idea, this standard, known initially as the reasonable man standard. Eventually switches to person to be a little bit more gender inclusive. But this reasonable person, it's one of the longest established fictional characters that, exists in what is known as like the legal village where you have these other little characters. Like it starts with the reasonable person. And then you start, you get like a slew of these other, these other characters that come out of that, which is, I have a little list. There's the ordinary prudent man of business, the officious bystander. There is the fair minded and informed observer. There's the reasonable juror.

There's the reasonable parent. There's the reasonable landlord. There's a reasonable neurosurgeon, a reasonable civil engineer. There's also a reasonable hairdresser. Really? It's like in any sort of trade or craft where there's business being done or you have the ability within your craft to harm somebody, legally it became very useful to have an average archetypal person doing that craft so that the jury or the judge would have something to use as a measurement when rendering judgment. That's interesting. So like in the hairdresser example, whatever it was that led to that phrase probably was a Ketalayan.

survey in at least an imagined one of hairdresser behavior. Yeah, like maybe you went in to get a haircut and you walked out and half your years gone. Right. And you're just like, where'd half my ear go. And then it's just you go to court and you're like, any reasonable hairdresser would not have made that cut. Right. That's so interesting. So it starts with this astronomer and ends up with this village of reasonableness. Can I chime in with the funny thing about the village thing? Please. This is producer Kelly Prime. So like in English law, like Matt said, there's like this village of people. But in England, at the time, they had this idea that it wasn't like a village who was people on a bus.

It was called the man on the Clapham Omnibus, which is roughly I looked up London Bus Route 88. Wait, so this is like a bus full of reasonable people? Yeah, yeah. So all those people are. Where are they going? I don't know. They just ride all day. All those people just waiting for like a case to come up and be like, oh, that's you hairdresser. And then like that concept moved. And like, Australia was like, okay, we should use that.

And so one part called it the man on the Bondi tram. Another park called it the man on the Burke Street tram. And then Hong Kong got it. And they said it's the man on the shanky one tram. So the bus is just a convenient vessel to hold all these reasonable people? Yeah, yeah. So England said all these people are on a bus because you didn't want someone who's like so lowly that they are like they're not riding the bus. They're like hold up in a cave somewhere or someone that is like high up on their castle.

It's like the common man. Yeah, exactly. So it said it was described as reasonably educated, intelligent, but nondescript. And I think like what Woody and Jerry to bring it all the way back, we're 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. Oh, so we need to add an reasonable officer to the village. Right. Or the bus. So.

In 1989, almost five years after everything happened to Thorn Gras. 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 MS. Conner. 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 one. word soup. Some objective standard. Where you got Jerry, objective, Chris Bruton, the lawyer for the officers, 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. Thirdgood 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?

Violent? No, it wasn't clear. He saw him. Hurry into a convenience story. 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 a petitioner was throwing

his hands around, that Barry had asked for officer, Conno's help to catch him. 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... 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. But the record... Why was he handcuffed? The record shows that he was properly stopped as a suspect for a criminal investigation,

that he was acting suspiciously, 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 given treatment? He wasn't arrested. He was never arrested. 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 himself. 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, Renquist 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 nine-nothing 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, a 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. You just 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 Dith Thorne? 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, is 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. We're okay now.

I was just wondering, did your dad talk 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 and that was after the supreme court case after that's correct that's correct and so i mean i don't know if his 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 it's kind of hard to explain that but when when someone who has authority just it's it's it's it's like it's they it's it's like they 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 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. Reuss 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 say this a fucking joke. They killed her baby, man. They're going to be a man. Later that same year, 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, Eric Gardner. 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 Castile. Reasonable. Are you kidding? me right now. We're not evolving as a civilization. We're devolving. 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. More perfect will continue in a moment. Radio Lab will continue in a moment. This is Christopher calling from South Florida. 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. This is More Perfect. I'm Chad Abramrod. We're featuring More Perfect on Radio

Lab today. Let me just say a few words for context. Police officers have dangerous jobs. I think we can all agree, and on occasion they do have to use force. And we should say that the majority of the people who are killed by police every year are white. But if you look at the number of black people who are killed and you balance that against the fact that black people only make up about 12% of the overall population, what you end up with is that an unarmed black man is roughly about seven times more likely to be killed by police than an unarmed white man. That's according to one study. Now, these numbers are very disputed and argued about. But what is clear is most police officers who use deadly force are never charged. And even smaller percentage serve jail time.

So, Matt, Matt Kilty, let me just ask you, like all the cases we heard about before the break, that litany of cases from the past few years, in every single one of those, the jury was asked, did this officer behave like a reasonable officer should? And in every single one, the jury said yes? Yeah, yeah. Why? Well, it's because the reasonable officer still. 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 bag ID prime time, Kelly Prime? Yeah. So it says, under the fourth amendment. 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. 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. And 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 tiniest 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 like 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 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're like, yeah. Let's go. Okay. So I went to Cleveland. Hi, I am on. Are you hungover cops? Let's give me shit start. For this two-day training course called Street Survival. It was in a hotel ballroom. those hotel ballrooms where you have like a big conference. How many people? Do you remember? There's 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 stares?

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 Cobra 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. What do you eat? 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 even 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 Connor 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 Brandt versus Connor based on this video. So, fired at the projector.

Come on. It is really interesting to see these videos from their perspective. 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, Fredo Pete! Ten shots, seven of them hit. The sequence was 47 range long.

That translated to about 1.566 seconds. Jim's claims it happens in 1.566 seconds. Four-year-old mentally disabled man has hit seven times and dies in the hospital. 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 Gizzer's view, the video shows the officers did not give So Jim plays all these reaction clips. And then... Here's what happens. It's real queer. He plays the original body cam video again.

Hey, Fred's Opie! 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 Tentano'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 one.

Jim's like, this is the only moment that matters. Like, forget what happened before. Forget that the officers rolled right up on Sinteno. 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, mal of 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 pulls something out. They think it's a gun, and a reasonable person would think it's a gun. And so... Does this work under grand?

Yeah, it's sad, yeah. But yes. Yes. Underbrand, 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 out 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 had a knife, but the cops had gotten a call that he 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.

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 Grant, you've got to put yourself in that officer's position, right?

Said you've 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, forgeting 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.

Kelly actually told us a story that she reported for her podcast embedded, that actually gets at some of this stuff. In this particular case, who was Jonathan Farrell and what happened? Jonathan Farrell was a football player. He's from Florida. Is he a big dude? Yes.

Okay. He looks like a football player. So this was September of 2013. John the Farrell is living in Charlotte, North Carolina. He's a black man 24 years old. And one night, it was a Friday night. He goes out with some friends, goes out to a bar. He has a couple drinks, makes his way home.

You know, we don't exactly know what happened. But while Jonathan Farrell was making his way back home, At some point, his car was... He lost control of his car, crashed in the woods off this road in suburban Charlotte. He didn't have his phone. But he's in, like, this little suburban neighborhood. So he gets out of his car. Goes up to the house of this woman is knocking on her door.

The woman inside, she's a white woman, new mom. She comes to the door thinking it's her husband who works nights. So she just comes to the door and she's like about to let him in. And then she's like, whoa, wait a second. Who's this person? Apparently, she opens the door, see Jonathan Farrell and quickly closes it. 911, hello. So she calls 911.

I need help. What's the guy breaking in my front door? There's a guy breaking in your front door? Yeah, he's trying to kick it down. The woman tells us the dispatcher that she doesn't know who the guy is. You show you the black male? Yeah. Okay.

Oh, we go down. Okay. Her alarm system's going off. All right. Okay, I'm right here. And you can hear Jonathan Farrell screaming turn off the alarm, turn off the alarm in the background. And you can hear him in the 911 tape. You can, like, hear him banging on the door.

What's the out in the house? He's so very yelling. Oh, my God. Do you have your baby with you? No, he's in bed. I don't know what to do. Okay, I'm right here. First, you're on their way, okay? Now, we don't know why Jonathan Farrell was banging on the door, but very possible, very likely.

It was just because he wrecked his car and needed some help. So three officers get called to the scene. Thinking that they are going to the scene of a breaking and entering. There's a dash cam video from the squad car of one of the officers. They've gotten a description. It's an African-American man with green shirt. and light pants. So this officer is driving down this road,

driving, driving, driving, until finally... You see an African-American man with a green shirt and light pants walking on the side of the road. He's walking towards the squad cars. You see the red light of a taser on his chest.

And then... Ferrell just, like, takes off. One of the officers is yelling at him to get on the ground. But Farrell keeps running. Runs off camera. You can't see what happens next. But then...

One of the officers fires 12 shots. 10 of them strike John and the Farrell. He falls to the ground. The facts, shots fired. Don't move. Don't move! And he dies. The facts of this case are that here's a guy who was unarmed who did nothing wrong.

And then he was killed, like plain and simple. If you ask, was that reasonable? Well, on some basic level, no, it was not reasonable. This man should not have died. But in the trial, this case did go to a trial, a jury trial. The jury was instructed, forget everything but that moment of force. Like no 2020 hindsight,

look at just the superseding moment and then ask the question again, was it reasonable for the officer to pull the trigger, i.e., was it reasonable for that officer to be afraid? And the officer who shot and killed Jonathan Farrell, who was facing charges. His name was Randall Carrick. He was being tried for voluntary manslaughter.

The suspect began aggressively coming towards me. And during the course of this trial, officer Carrick took the stand. And could you tell the jury about what pace he was coming at you? At first it was a pretty rapid pace, more of a fast walk. I gave loud verbal commands for him to stop and get on the ground. How loud were your verbal commands? Very loud. Show the jury how loud you are yelling to the suspect and what you were yelling to the suspect. So he says he was running at him. And this is a huge question. Was he running at him?

Or was he running away from it? Like trying to run past him, by him. Yeah. Like if you sort of diagram the whole thing out, the way the cop cars were parked, the way Carrick was standing, it is possible that Jonathan Farrell was trying to sort of run between them all.

That's what the prosecution was saying. The defense was like, no, no, no, no. He was running at the cops. Did the suspect say anything to you? No, sir. What did you interpret his body language to me? he was going to attack me. He was going to assault me.

He was going to take my gun from me. Did you have time to holster your weapon? No, sir. And here I was. The suspect matched the description. And he just ran through a taser, which at the time I thought had worked.

I thought the taser had struck and made contact. And I had absolutely no idea if he had a weapon on him or not. And was he ever? Was the suspect ever still? No, sir. Did he continue to advance on you? Yes, sir.

No matter what I did, he wouldn't stop. I wasn't sure how many rounds I had fired. None of them affected him in any way. I didn't think my gun was working. I thought I was going to die because nothing I would do would stop him. What was the reason that you continued to fire your weapon? Because he wouldn't stop.

He kept trying to get to my gun. To boil it down, the question was, was it reasonable for Officer Carrick to feel afraid? And after 11 days of testimony, the question was put to the jury. There were six opinions one way. There were six another. When they first go into the jury room, it was six to six. On one side? A white guy named Bruce Raffey.

We were sitting in that courtroom. And we were sitting in that jury deliberation room. It was no bigger than this living room. Okay. And it's hot. We're arguing. It's going nowhere. And so the more it went on, this went on for days.

And he's sort of the leading the charge on that we have to acquit Carrick side. He felt that Officer Carrick had every right to be afraid. And he told Kelly that Jonathan Farrell, the guy Carrick shot. So what Bruce Rafi's saying to me like, you know, he was a young man. Distraught, disheveled, confused, angry, if you will. He made a very aggressive move. Towards these police officers after disobeying commands. He had many choices in this video.

And it was clear from the very first time I viewed it. stop, sit down, put your hands up, do any of those things, other than what you chose to do, which was to charge Officer Carrick. And so there's no other way around what I saw, and it kept coming back to that. And this is exactly how the defense painted it, right? This case is not about race. This case is about choices. And that stuck in Bruce Raffrey's mind so that when he was asked,

was it reasonable for Carrick to shoot him, it's like, well, yeah, because Jonathan Farrell made all these bad choices. This is an old trick from defense attorneys. This is another one that Jerryers that Kelly spoke to. Named Moses Wilson. An African-American man. He wasn't supposed to be here. He might have had a few drinks where he was.

The police responded to what he caused. This was early in the morning. This was far from where he lived. This was this. This was that which caused me at the end. to write on the board just what did he do to deserve to be shot so many

times? In the jury room. In the jury room. I wrote this on the board. What did he do? So what happens with the jury? It splits. A bunch of the tally is eight to acquit, four to convict.

Eight jurors, most of them white. Side with acquitting care. And four jurors, most of them people of color. Side with convicting carrick. Breaking news in the trial of Officer Randall Carrick, the judge has just declared a mistrial. In 2015, the city of Charlotte settled a lawsuit with John Farrill's family for $2.25 million. Later that same year, Officer Carrick resigned from the Charlotte Police Department. The city paid out $179,9,9.59.59. The money was for back pay, Carrick's Social Security and retirement,

and an attorney that represented him in a separate civil suit. Yeah. There's something interesting about listening to Moses talk. Just what did he do to deserve to be shot so many times? Because it feels like this Fourth Amendment reasonableness standard, this reasonable officer standard. Like what I understand is that it was an attempt to really kind of look at these situations, these shootings, these uses of force cases through this sort of objective lens where you're just looking at. all the facts on the ground. And yet, the cases don't seem to be tied to, like, any sort of objectivity.

Yeah. And there's something about hearing Moses where you're like, oh, that's actually, like, that feels like a pure sort of objectivity. Like, what had this guy done? He hadn't actually done anything. He ran at somebody, maybe. But that was it. And, 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 to 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, 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 you are not right in fact, then you have to go to jail. I think that would be a standard that would allow us to, prosecute these police officers.

But then a police person is just going to argue that 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, fuck 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 was 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 gets 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 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 Rankwist, when he wrote the decision, in 89 he put in all these phrases that took the idea of a reasonable officer and constrained it so 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 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 totality 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 is.

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. 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 DeThorne Graham got pulled over outside a convenience store in Charlotte.

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. Did what happened to your dad affect how you thought of police, how you thought of police at being a black man? Well, you know, believe it or not, it didn't. Why's that? I like to base my opinions based on my own experiences. My dad, I can say this, Kelly and Matt, I can remember my dad telling me stories of where he grew up. in eastern North Carolina on a tobacco farm in that small town. I can remember him telling me a story of a black man who had been accused of being inappropriate

with a white woman and how the whites got him in broad daylight and castrated him in broad daylight. And I say that in saying that although he experienced all that stuff, growing up and the racism that he experienced growing up, he didn't teach that to us. He didn't teach that to us. He taught us to love people for people. So even now myself, I base my experience of a person. I base my experience of the police based on my dealings with the police. And not that I won't, but I have yet to encounter a police officer who's been mean to me, who's been rude to me, who's mistreated me. And that's the God's honest truth.

But in being completely honest, when I see on the news like the kid and the 12-year-old that had the BB gun. Oh, Tamir Rice, yeah. Yeah, yeah. You know, examples like this, that does affect me and that does make me want. Does that make you think of your own children?

Have you taught to your own kids about it? Of course, I've got a 12-year-old at home. He's got BB guns that look just like real guns. And, you know, but he, he knows that, hey, they don't leave the house. What's your 12-year-old's name? My son's name is Tanner. Tanner. And when you talk to Tanner about the fact that, like, the BB gun doesn't leave the house,

I mean, what is that conversation? Like with Tamir Rice when he was shot and killed. When the news story came on, I paused it and, you can do it with live TV now, say, come here, I want you to watch this. Right now, Tanner's 12 years old. He's cute. He's this. he's that, but the fact of the matter is, in a few short years, he would be considered a black man.

Unfortunately, he's going to have a target on himself. So, hey, those BB guns you got? See, this is why you can't take these out of the house. I don't want you to take these out of the house. Even if you're outside in the yard plane and a police should happen to come down the road, hey, drop it. Drop it immediately. This story was produced and reported by Matt Kielty, with a big assist from co-producer Kelly Prime. Whether objective and unreasonable behavior alone is enough.

Reasonable. They have to know what we know. With the way you know, you know, people were used. Do you think that would be reasonable execution of the one? Objectively unreasonable. Whether objective and reasonable behavior alone is enough. It's saying how would a reasonable person have felt. make it an unreasonable search.

I think goes to our list. Reasonable list. Because if you just burst in, the person they reasonable to think this is a bird learn. That is not what a reasonable person believe. Definitely check out the other

More Perfect episodes. There are many more at Radiolab.org slash More Perfect or search for More Perfect wherever you get your podcasts. Definitely check it out. Spread the word. More Perfect is produced by me,

Chad Abramrod, It's Susie Lechtenberg, Jenny Lawton, Julia Longoria, and Kelly Prime. Alex Ovington and Sara Carrey, with Ellie Mistal, Christian Farias, Linda Hirschman, David Gable, and Michelle Harris. We had production support this week from Derek John and Dylan Keith. Thanks to Kelly McEvers and Tom Dreisbach from NPR's Embedded, Ben Montgomery at the Tampa Bay Times, Frank Aycock, Leonard Feldman, Cynthia Lee and Joshua Rosencrantz. Supreme Court Audio is from Oye, a free law project in collaboration with the legal information. Institute at Cornell. Leadership support from our perfect is provided by the Joyce Foundation. Additional funding is provided by the Charles Evans Hughes Memorial Foundation.