Jun 6, 2020

Graham

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 

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[RADIOLAB INTRO]

 

JAD ABUMRAD: Hey, I'm Jad Abumrad. This is Radiolab. It has been an intense week. Just a horrible, hard, difficult week. It felt like the world cracked open, to be honest. Protests 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.

 

[ARCHIVE CLIP, protester: I want to have a moment of silence for George Floyd. Take a knee.]

 

[NEWS CLIP: People have come to a stop. Fists in the air.]

 

[NEWS CLIP: 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.]

 

JAD: Been thinking a lot about those silences. All the silences that led to this silence. Honestly, there's 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 move 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.

 

JAD: 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 show More Perfect a couple of years ago. It was produced by Matt Kielty 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.

 

MATT KIELTY: I think we might as well just start ...

 

WOODY CONNETTE: Should I try to sound Southern?

 

MATT: With a guy named Woody Connette.

 

WOODY CONNETTE: I’m a lawyer with Essex Richards, a law firm in Charlotte, North Carolina.

 

MATT: We’ll pick it up in 1985.

 

WOODY CONNETTE: Back in 1985, I was a very young lawyer. I was 32 years old, I just started my own law firm, and I was taking about anything that came through the door.

 

MATT: And one day, says Woody, this guy walked in.

 

WOODY CONNETTE: Late-30s, fairly thin.

 

MATT: Five foot nine, five foot ten.

 

WOODY CONNETTE: On crutches.

 

MATT: And he’s -- he’s a Black man.

 

WOODY CONNETTE: He is. Or was. He’s passed away, Mr. Graham.

 

MATT: The man’s name was Dethorne Graham and Woody says, "Well, like, what happened to your leg? What’s with the crutches?” And Dethorne lays everything out for him.

 

WOODY CONNETTE: Here we go. So he was pulled over on West Boulevard in Charlotte, which is a four-lane road.

 

MATT: Dethorne told Woody he worked for the city of Charlotte in the Department of Transportation.

 

WOODY CONNETTE: On road crews doing road repairs.

 

MATT: It was a Monday afternoon, and on that day one of Dethorne’s friends, a co-worker stopped by his place.

 

WOODY CONNETTE: And ...

 

MATT: After talking for a bit ...

 

WOODY CONNETTE: 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 juice because he was suffering the onset of a diabetic insulin reaction.

 

MATT: So Dethorne hopped in his friend’s car. They drove over to this convenience store. Dethorne got out.

 

WOODY CONNETTE: Got a bottle of orange juice.

 

MATT: Got to the checkout counter.

 

WOODY CONNETTE: But there’s a line there, so he puts the bottle down and hurries out.

 

MATT: Gets back in his friend’s car.

 

WOODY CONNETTE: They take off. Now this is where the problems started.

 

MATT: Turns out at the same time all that’s happening, there’s actually an officer ...

 

WOODY CONNETTE: Who was African American.

 

MATT: Sitting in his squad car.

 

WOODY CONNETTE: And what that officer observed was a man hurrying out of a store, jumping into a waiting car and quickly driving off.

 

MATT: So, he starts to tail Dethorne and his friend.

 

WOODY CONNETTE: And after a couple of blocks, pulled him over just to determine what was going on there.

 

MATT: So he goes up to the driver’s side, presumably gets Dethorne’s buddy’s driver’s license, goes back to this squad car, starts radioing to get ahold of the convenience store to see if anything had happened. And it’s right around that moment that Dethorne, who’s in the passenger seat of the car suddenly opened his door, got out of the car ...

 

WOODY CONNETTE: Circled the car once or twice.

 

MATT: Like, sort of stumbled around it.

 

WOODY CONNETTE: Then he sat down on the curb.

 

MATT: And he started going into shock.

 

DETHORNE GRAHAM JR.: Almost like a seizure he would have.

 

MATT: Oh, really?

 

DETHORNE GRAHAM JR.: Yeah, and it was terrifying.

 

MATT: This is Dethorne Graham, Jr.

 

DETHORNE GRAHAM JR.: He was a Type 1 diabetic.

 

MATT: What is Type 1 diabetes? Because I know it’s 1 and 2.

 

DETHORNE GRAHAM JR.: From what I understand the Type 1 diabetes, it’s when your body just doesn’t produce enough insulin.

 

MATT: And what would that seizure look like?

 

DETHORNE GRAHAM JR.: Well, one incident in particular, I can remember us being in church and he got, like, this blank stare on his face, and you could see the beads of sweat come on his forehead. His body would seize up and he would shake and he would bite his tongue up. And ...

 

MATT: Wow.

 

DETHORNE GRAHAM JR.: 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 of hours, and he’d wake up and he’d be exhausted but he’d be alive.

 

MATT: All right. So Charlotte city street.

 

WOODY CONNETTE: At this point, four other officers arrived.

 

MATT: Dethorne has actually passed out on the curb.

 

WOODY CONNETTE: One of the officers rolled Mr. Graham over on the sidewalk and cuffed his hands behind his back.

 

MATT: At one point, one of the officers grabs Dethorne by the handcuffs and picks him up off the curb from -- from behind.

 

JAD: Oh, wow.

 

MATT: Dethorne was sort of in and out at this point, I guess. He tries to tell the officers ...

 

WOODY CONNETTE: That 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."

 

MATT: At some point around here -- the details are a little unclear.

 

WOODY CONNETTE: A pretty nasty scuffle ensued.

 

MATT: According to what is known as case syllabus, Dethorne was resisting the officers and apparently one of the officers slammed Dethorne’s head into his friend’s car. He suffered head and shoulder injuries. He also ended up with a broken foot, cuts around his wrist. 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.

 

JAD: Hmm.

 

WOODY CONNETTE: While this was going on, a few people gathered around.

 

MATT: And not long after that ...

 

WOODY CONNETTE: 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.

 

MATT: So they drove him back to his house still in handcuffs.

 

WOODY CONNETTE: Pulled him out of the car.

 

MATT: A friend at Dethorne’s house got him some OJ.

 

WOODY CONNETTE: And the officers laid him out in his front yard, took the handcuffs off and then just drove away.

 

MATT: Huh. Was there an apology?

 

WOODY CONNETTE: Oh, no.

 

MATT: 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 ...

 

WOODY CONNETTE: He needed some orange juice.

 

MATT: ... that. Something so seemingly small would eventually become tied to ...

 

[ARCHIVE CLIP, protesters: Hands up! Don’t shoot!]

 

MATT: ... this. And all of the shootings we’ve seen in the past few 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 has quietly defined 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 ...

 

DETHORNE GRAHAM JR.: The one thing I do remember Dad saying was that it wasn't right.

 

MATT: Dethorne was gonna fight.

 

WOODY CONNETTE: Right. And ...

 

MATT: 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."

 

WOODY CONNETTE: So we went ahead and just filed our lawsuit in federal court.

 

MATT: Woody takes it to trial and basically his argument is that the police ...

 

WOODY CONNETTE: They had used excessive force that was totally unnecessary under the circumstances.

 

MATT: 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 ...

 

WOODY CONNETTE: No.

 

MATT: ... these officers did not use excessive force, and if you are gonna claim that they did ...

 

WOODY CONNETTE: We had to show that the police officers had acted maliciously for the purpose of causing harm.

 

JAD: Huh. So they had to prove that the officers actually meant to hurt him?

 

MATT: Yeah. That Woody and Dethorne had to prove that the officers had it out for Dethorne.

 

WOODY CONNETTE: And we simply couldn’t do that.

 

MATT: Yeah, that seems like a really hard thing to prove.

 

WOODY CONNETTE: It’s an almost impossible standard to meet.

 

MATT: 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 the use of force, then in the mid-80s, malicious intent was sort of the prevailing standard. If you were 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.

 

JAD: Why was that the standard?

 

MATT: Phew, this is kind of hard to explain.

 

WOODY CONNETTE: I don’t have the Fourteenth Amendment in front of me but it essentially says ...

 

MATT: All you really need to know is that it was connected to the Fourteenth Amendment, to a particular clause in the Fourteenth Amendment. And this is why Woody and Dethorne lost that case.

 

JAD: Okay. All right, so it loses at Federal Court.

 

MATT: Loses at Federal, makes its way up to ...

 

WOODY CONNETTE: The Fourth Circuit Court of Appeals. That went nowhere. The Court of Appeals ruled against us.

 

JAD: Same thing?

 

MATT: Same thing. But then not long after that ruling, Woody gets a phone call.

 

GERALD BEAVER: Radio, can you hear me?

 

MATT: From this guy.

 

GERALD BEAVER: Yup.

 

WOODY CONNETTE: Gerry Beaver.

 

MATT: A known civil rights lawyer in the area.

 

GERALD BEAVER: In Fayetteville, North Carolina.

 

WOODY CONNETTE: Gerald was older and wiser than me.

 

GERALD BEAVER: That’s your wording, not mine.

 

MATT: Gerry had caught wind of the Circuit decision and was just like ...

 

GERALD BEAVER: Oh, no. 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?"

 

MATT: And Woody was like ...

 

WOODY CONNETTE: No.

 

MATT: "My client can’t really afford that."

 

GERALD BEAVER: I said, "Tell him 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 overturned."

 

MATT: When he heard that, Woody said ...

 

WOODY CONNETTE: Sure. Let’s go.

 

MATT: So Gerry 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 it just so happened that 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 Fourteenth Amendment malicious intent standard that Gerry and Woody didn’t like.

 

GERALD BEAVER: But then there was also in a number of cases, the Eighth Amendment.

 

MATT: What’s the Eighth?

 

[ARCHIVE CLIP, Justice Stephen Breyer: Cruel and unusual punishment.]

 

MATT: Hey, Justice Breyer.

 

WOODY CONNETTE: The Eighth is cruel and unusual punishment.

 

MATT: Problem there ...

 

[ARCHIVE CLIP, Justice Stephen Breyer: Which doesn’t totally explain itself.]

 

MATT: What is cruel? What is unusual? Like, take the word, "Cruel." Cruel seems to imply ...

 

GERALD BEAVER: Bad intent.

 

MATT: That you’re trying to hurt somebody. Which means if you’re gonna prove anything, you still have to crawl inside somebody’s head.

 

JAD: Right.

 

MATT: But there was another amendment that some of the courts were using that Woody and Gerry looked to as their sort of like redeemer.

 

GERALD BEAVER: The Fourth Amendment.

 

WOODY CONNETTE: The Fourth Amendment.

 

MATT: The Fourth Amendment.

 

MATT: Which is ...?

 

GERALD BEAVER: Well, which is the government cannot subject citizens to unreasonable search and seizure.

 

MATT: 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.

 

JAD: And is seizure just another word for force? Like, I have the right not to be, like, beaten or shot by my government?

 

MATT: Yeah, yeah. It’s not just that but yes, it also includes that. And to Gerry and Woody, what they liked so much about the Fourth Amendment is that in there is this one important word. Un ...

 

GERALD BEAVER: Reasonable.

 

WOODY CONNETTE: Reasonable.

 

MATT: ... reasonable.

 

GERALD BEAVER: The concept of reasonableness. What is reasonable and what is not reasonable?

 

MATT: In law, reasonable is supposed to be objective.

 

GERALD BEAVER: You look at the case from the facts of the case.

 

MATT: You look at the who, what, where, when. Not the why.

 

GERALD BEAVER: Correct.

 

MATT: And then you ask, "Was this person’s behavior reasonable or not?"

 

GERALD BEAVER: They have to act with objective reasonableness.

 

JAD: Wait a second. I mean, reasonableness is a slippery thing. What you find reasonable and what I find reasonable.

 

MATT: Could very well be different.

 

JAD: Could be completely different.

 

MATT: Yes and no. It can feel slippery but legally ...

 

GERALD BEAVER: The whole concept of reasonableness had hundreds of years of precedent.

 

MATT: I mean, I find this very fascinating ...

 

JAD: 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 in U.S. law for years and years and years. But the point here is that Woody and Gerry were for the first time taking this standard and bringing it to bear on police actions.

 

MATT: And I think, like, what Woody and Gerry were essentially trying to do was to say, we need to use the Fourth Amendment and this idea of unreasonable search and seizure to create a reasonable officer. So ...

 

[ARCHIVE CLIP: The case is submitted.]

 

MATT: In 1989, almost five years after everything happened to Dethorne Graham that one day in Charlotte ...

 

[ARCHIVE CLIP: We’ll hear argument next in number 87-65-71.]

 

MATT: His case went before the Supreme Court.

 

[ARCHIVE CLIP: Dethorne Graham versus M.S. Connor.]

 

MATT: Now, Dethorne wasn’t there for the arguments. Woody was there.

 

WOODY CONNETTE: As a spectator to watch.

 

MATT: Gerry was actually arguing the case.

 

MATT: Did you have butterflies?

 

GERALD BEAVER: Of course.

 

[ARCHIVE CLIP: You may proceed whenever you’re ready.]

 

[ARCHIVE CLIP, Gerald Beaver: Mr. Chief Justice, and may it please the court ...]

 

MATT: And pretty quickly, these arguments ...

 

[ARCHIVE CLIP, lawyer: You don’t know it’s being reasonable unless you know what the subjective intent of the officers are.]

 

MATT: Turned into, like, this word soup.

 

[ARCHIVE CLIP, lawyer: Some objective standard ...]

 

MATT: Where you got Gerry ...

 

[ARCHIVE CLIP, Gerald Beaver: Objective jurisprudence.]

 

MATT: The lawyer for the officers ...

 

[ARCHIVE CLIP, lawyer: Subjective.]

 

MATT: The justices ...

 

[ARCHIVE CLIP, justice: The objective-subjective dichotomy, but ...]

 

MATT: All getting super meta about what constitutes objectivity.

 

[ARCHIVE CLIP, justice: Objectively unreasonable, I’d say.]

 

MATT: Subjectivity.

 

[ARCHIVE CLIP, lawyer: Subjective factor have ...]

 

MATT: Analysis tests and standards.

 

[ARCHIVE CLIP, lawyer: Severe objective testing.]

 

[ARCHIVE CLIP, lawyer: The subjective analysis ...]

 

MATT: Bad intent, no intent.

 

[ARCHIVE CLIP, lawyer: Subjective intent.]

 

[ARCHIVE CLIP, lawyer: I think we’re playing with words there.]

 

MATT: Until ...

 

ARCHIVE CLIP, Justice Thurgood Marshall: Well ...]

 

MATT: One justice, Thurgood Marshall, the lone African American on the court, comes in and just asks ...

 

[ARCHIVE CLIP, Justice Thurgood Marshall: What reason was there for handcuffing a diabetic in a coma?]

 

[ARCHIVE CLIP, lawyer: At the time, the officers didn’t know that he was a diabetic in a coma. The ...]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: What was he doing that was so violent that he had to be handcuffed?]

 

[ARCHIVE CLIP, lawyer: You have to go back one step even before that. Officer Connor saw petitioner act in a very suspicious and unusual manner.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Violent?]

 

[ARCHIVE CLIP, lawyer: It wasn’t clear. He saw him hurry into a convenience store and hurry out.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Well, what did he do that was violent?]

 

[ARCHIVE CLIP, lawyer: Excuse me?]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: What did he do that was violent?]

 

[ARCHIVE CLIP, lawyer: Mr. Berry’s ...]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Threatened anybody?]

 

[ARCHIVE CLIP, lawyer: ... testimony. His petitioner’s own witness said that petitioner was throwing his hands around, that Berry had asked for officer consult.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: 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 him?]

 

[ARCHIVE CLIP, lawyer: 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 ...]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Was that threatening to anybody? Did he strike anybody?]

 

[ARCHIVE CLIP, lawyer: Well, the officers didn’t have to wait until he was ...]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Did he strike anybody?]

 

[ARCHIVE CLIP, lawyer: I don’t believe the record indicates that he struck anybody.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Did he threaten to strike anybody?]

 

[ARCHIVE CLIP, lawyer: He was acting in a unpredictable and potentially dangerous manner.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Can you answer it? Did he threaten to strike anybody?]

 

[ARCHIVE CLIP, lawyer: He did not overtly threaten to strike anyone.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Did he have a weapon of any kind?]

 

[ARCHIVE CLIP, lawyer: The record doesn’t indicate it, I don't believe.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: The record didn’t show he had a weapon of any kind?]

 

[ARCHIVE CLIP, lawyer: That’s correct, but the record ...]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Well, why was he handcuffed?]

 

[ARCHIVE CLIP, lawyer: 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. And that even after he was handcuffed and the officers went to put him in the car, the undisputed record shows that he was vigorously fighting and kicking.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Well, shouldn’t a diabetic object to being arrested rather than given treatment?]

 

[ARCHIVE CLIP, lawyer: He wasn’t arrested. He was never arrested.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: Why was he handcuffed?]

 

[ARCHIVE CLIP, lawyer: 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.]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: To protect himself?]

 

[ARCHIVE CLIP, lawyer: That’s the -- the District Court summarized the record as indicating that. That’s correct. Now ...]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: May I differ?]

 

[ARCHIVE, lawyer: May you differ?]

 

[ARCHIVE CLIP, Justice Thurgood Marshall: To that conclusion?]

 

WOODY CONNETTE: 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.

 

MATT: 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 a reference to the Fourth Amendment’s reasonableness standard."

 

JAD: So they get their reasonable officer standard?

 

MATT: They get it, and they get it unanimously.

 

GERALD BEAVER: A nine-nothing opinion.

 

JAD: Whoa!

 

WOODY CONNETTE: It was a breakthrough.

 

MATT: I don’t think it would 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.

 

WOODY CONNETTE: That favored plaintiffs and claimants.

 

MATT: Because now, if you were a victim of police violence and you wanted some justice, you had this new universal standard.

 

GERALD BEAVER: An objective standard.

 

WOODY CONNETTE: We no longer had to show that the officers acted maliciously or sadistically.

 

MATT: 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.

 

GERALD BEAVER: From the facts of the case.

 

MATT: And you say, "Would a reasonable officer do the same thing or not?" And you could establish, like, 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.

 

WOODY CONNETTE: That was a breakthrough.

 

MATT: So after winning, did the case get kicked back down to the Circuit? Like, what happens to Dethorne?

 

WOODY CONNETTE: After we won in the Supreme Court, the case went back to the trial court level for another trial.

 

MATT: Okay.

 

WOODY CONNETTE: That was the effect of it. And so Mr. Graham had another day in court, another trial. We picked another jury.

 

MATT: The facts were presented.

 

WOODY CONNETTE: Diabetic, insulin reaction. Bottle of orange juice, pulled him over.

 

MATT: Unconscious.

 

WOODY CONNETTE: Handcuffed.

 

MATT: Physical altercation.

 

WOODY CONNETTE: Broken foot.

 

MATT: Lacerations wrist, bruised forehead.

 

WOODY CONNETTE: Squad car. Front yard.

 

MATT: Essentially, here was a guy who did nothing wrong and was beaten up.

 

WOODY CONNETTE: The case was given to the jury.

 

MATT: And the jury was told, okay, knowing what you now know, take this standard, this reasonableness standard and ask yourself: Is what happened to Dethorne Graham reasonable? The jury deliberated, came back out ...

 

WOODY CONNETTE: And they decided in favor of the police officers. Mr. Graham lost.

 

MATT: Now whether you think this was reasonable or not, the jury really focused in on the police officers’ perspective. And from the officers’ perspective, all they saw was a Black man running in and out of a convenience store, they thought he might be stealing something, they had no idea he was a diabetic. And when the police picked him up ...

 

WOODY CONNETTE: He was a little bit out of control.

 

MATT: He's acting weird, he was running around the car.

 

WOODY CONNETTE: Creating trouble.

 

MATT: Not because he’s a diabetic ...

 

WOODY CONNETTE: But he’s a drunk.

 

MATT: Might be dangerous. A reasonable officer would subdue that person.

 

DETHORNE GRAHAM JR.: Excuse me, I’m so sorry.

 

MATT: Oh, the doorbell again?

 

DETHORNE GRAHAM JR.: There goes the dogs again, yeah.

 

MATT: Oh, the dogs.

 

MATT: So when I talked to Dethorne Graham Jr., he was actually moving from his home in St. Louis ...

 

DETHORNE GRAHAM JR.: I’m just going to open the garage up for this guy.

 

MATT: Back to where he still had a lot of family in Charlotte.

 

DETHORNE GRAHAM JR.: Okay, I’m back, hopefully.

 

MATT: All right. Cool.

 

DETHORNE GRAHAM JR.: We’re okay now.

 

MATT: 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?

 

DETHORNE GRAHAM JR.: No, he didn’t. It wasn’t something that he talked about.

 

MATT: Dethorne Jr. says that his dad was just kind of trying to get on with his life.

 

DETHORNE GRAHAM JR.: He started making furniture in his spare time.

 

MATT: Going to church a lot.

 

DETHORNE GRAHAM JR.: But he had his -- he had his troubles. He had a -- he ended up having substance abuse issues. So -- and which fortunately he was able to overcome that, and ...

 

MATT: And that was after the Supreme Court case? After the ...

 

DETHORNE GRAHAM JR.: That’s correct. That’s correct.

 

MATT: Hmm.

 

DETHORNE GRAHAM JR.: 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, when you are dehumanized like that, when -- when another individual, whether they -- it’s kind of hard to explain Matt, but when someone who has authority just -- 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 you lose a part of yourself that you can’t get back.

 

MATT: Dethorne 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 ...

 

[NEWS CLIP: There is growing outrage tonight after an unarmed African American teenager was shot and killed by police in the St. Louis suburb of Ferguson, Missouri.]

 

MATT: Not far from where Dethorne Jr. lives, a white officer, Darren Wilson, shot and killed a Black teenager, Michael Brown.

 

DETHORNE GRAHAM JR.: A reporter from CNN contacted me and he talked about how they were gonna use my dad’s case during that trial.

 

MATT: As a defense, for the officer.

 

DETHORNE GRAHAM JR.: This CNN reporter informed me, said ...

 

MATT: "Do you know about this?"

 

DETHORNE GRAHAM JR.: No, I had no idea.

 

[ARCHIVE CLIP: The Grand Jury deliberated over two days, making their final decision.]

 

MATT: One of the questions posed to the jury was: Did Officer Darren Wilson act reasonably when he shot Michael Brown?

 

[ARCHIVE CLIP: 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.]

 

MATT: And the jury was basically, like, yeah, that was reasonable.

 

[ARCHIVE CLIP, protester: I think this is a fucking joke.]

 

[ARCHIVE CLIP, protester: We with you, baby.]

 

[ARCHIVE CLIP, protester: They killed her baby, man.]

 

[ARCHIVE CLIP, protester: We’re with you.]

 

[ARCHIVE CLIP, protester: I can’t get nobody back.]

 

[ARCHIVE CLIP, protester: We’re going to get justice! We’re going to get justice!]

 

MATT: Later that same year ...

 

[NEWS CLIP: The 12-year-old boy shot and killed by two officers while holding a pellet gun.]

 

MATT: Tamir Rice.

 

[ARCHIVE CLIP: We are instructed to ask what a reasonable police officer would do in this particular situation.]

 

MATT: The jury found that the officer who shot and killed the 12-year-old boy Tamir Rice acted reasonably. And then ...

 

[ARCHIVE CLIP, protesters: I can’t breathe! I can’t breathe!]

 

MATT: Eric Garner.

 

[NEWS CLIP: A grand jury in New York City has refused to indict yet another white police officer said to have killed an unarmed Black man.]

 

MATT: His death was reasonable. John Crawford ...

 

[NEWS CLIP: A 22-year-old Black man killed last month.]

 

MATT: Reasonable.

 

[NEWS CLIP: Carrying around a BB gun.]

 

[NEWS CLIP: After a judge declared a mistrial today.]

 

MATT: Samuel DuBose.

 

[NEWS CLIP: In the case of a white police officer who killed an unarmed Black man.]

 

MATT: Reasonable.

 

[NEWS CLIP: With Sterling on his back ...]

 

MATT: Alton Sterling.

 

[NEWS CLIP: One officer pulls his gun.]

 

MATT: Reasonable.

 

[NEWS CLIP: Sterling lay dying on the street.]

 

MATT: Terence Crutcher.

 

[NEWS CLIP: An unarmed Black man ...]

 

MATT: Reasonable.

 

[NEWS CLIP: ... shot and killed by police in Oklahoma.]

 

[NEWS CLIP: Charlotte police ...]

 

MATT: Keith Lamont Scott, Jamar Clark.

 

[ARCHIVE CLIP, mother: This city killed my son.]

 

MATT: Philando Castile. Reasonable.

 

[ARCHIVE CLIP, mother: Are you kidding me right now? We’re not evolving as a civilization. We’re devolving. We’re going back down to 1969. Damn!]

 

MATT: And in almost every one of those cases, Graham vs. 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 doing the exact opposite. It prevented the victims from getting relief and instead protected the cops.

 

KELLY MCEVERS: One person, my colleague who covers cops, describes it as, like, cops -- cops see it as, like, their First Amendment.

 

JAD: After the break we’ll ask: How did that happen? And we’ll watch it happen. We'll be back in a moment.

 

JAD: I'm Jad. This is Radiolab. One of the things that sets this incident apart, the George Floyd incident, I mean, I say that because the Radiolab 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?"

 

MATT: Well, that’s -- it’s because the reasonable officer standard, like, from the moment that it was created, it was actually constrained in a few very important ways.

 

KELLY PRIME: 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.

 

MATT: Oh, sweet. You just want to read those?

 

KELLY: Yeah, yeah. And so ...

 

JAD: This is what the jurors are actually told this is your job?

 

KELLY: Yeah, exactly.

 

MATT: Just to back ID, Prime Time Kelly Prime.

 

KELLY: 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 20/20 vision of hindsight.

 

MATT: Those -- 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 20/20 vision of hindsight. So you have to put yourself in the shoes of an officer in the moment and look at it through their eyes, and that’s how you have to understand these things.

 

KELLY: Right.

 

JAD: And where did that idea come from?

 

MATT: 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 20/20 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, like, what a reasonable officer would do here in general during a moment where -- 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 has legally become to be known as a superseding event.

 

JAD: Meaning what? What does that mean?

 

MATT: Meaning, this is -- I find this is 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.

 

JAD: That’s all they can think about, the jurors?

 

MATT: 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.

 

KELLY MCEVERS: One person, my colleague who covers cops, describes it as, like, cops -- cops see it as, like, their First Amendment.

 

MATT: They just think of it like as a shield?

 

KELLY MCEVERS: Yeah.

 

MATT: Okay, so this is NPR reporter ...

 

KELLY MCEVERS: Kelly McEvers. Host of Embedded podcast and All Things Considered.

 

MATT: 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.

 

KELLY MCEVERS: Okay, so I went to Cleveland.

 

[ARCHIVE CLIP: All right all you hungover cops, let’s get this shit started.]

 

KELLY MCEVERS: For this two-day training course called Street Survival.

 

MATT: It was in a hotel ballroom.

 

KELLY MCEVERS: One of those hotel ballrooms where you have, like, a big conference and ...

 

JAD: How many people? Do you remember?

 

KELLY MCEVERS: There was somewhere just under 200 cops. Lots of really jacked dudes, with tats.

 

MATT: Mostly white.

 

KELLY MCEVERS: There were some sarges, some lieutenants.

 

MATT: Rookies right out of the academy, some mid-career guys.

 

KELLY MCEVERS: From all over Ohio, Pennsylvania. And they were not super happy about me being there.

 

JAD: Did you get, like, angry stares?

 

KELLY MCEVERS: I mean, in the beginning there was just, like, a lot of side eye.

 

[ARCHIVE CLIP, Jim Glennon: Nice, nice. Good morning, Cleveland. How’s everybody doing? How many of you have been to a Calibre Press seminar before? Please show of hands. Let’s do it this way, who’s never been here before, never been to a Calibre Press class? Oh wow. Good, good deal.

 

MATT: Kelly said the whole thing was put on by this company.

 

KELLY MCEVERS: Called Calibre Press. It’s a company that’s actually been around for a really long time. And they teach classes.

 

MATT: Classes that are aimed at police departments. They offer them all across the country. And this particular one ...

 

[ARCHIVE CLIP, Jim Glennon: We’re gonna talk a lot about stress survival instincts.]

 

KELLY MCEVERS: The general idea is how to survive and, like, make it to retirement.

 

[ARCHIVE CLIP, Jim Glennon: I mentioned heart attacks, emotional health, suicide.]

 

KELLY MCEVERS: You know, how to basically do this job and ...

 

[ARCHIVE CLIP, Jim Glennon: It’s really about 24/7 survival.]

 

KELLY MCEVERS: ... and live.

 

[ARCHIVE CLIP, Jim Glennon: Living and lasting a 25-30 year career.]

 

KELLY MCEVERS: They talk a lot about self care.

 

[ARCHIVE CLIP: What do you eat?]

 

KELLY MCEVERS: About sleep and exercise.

 

[ARCHIVE CLIP: My wife and I talked about this. If I start getting crabby, there’s something else there.]

 

KELLY MCEVERS: 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 ...

 

JAD: Wow.

 

KELLY MCEVERS: There’s times when it’s really this touchy-feely kind of thing.

 

[ARCHIVE CLIP: I started getting overwhelmed. I didn’t know what was happening with me.]

 

MATT: There’s even a moment, she says, when an officer got up, talked about contemplating suicide.

 

[ARCHIVE CLIP: My wife kept on telling me I needed to get help. I started secluding myself. I started alienating myself. Was fucking hating everybody.]

 

KELLY MCEVERS: Everyone was, like, crying. So I mean, it’s a really intense couple of days.

 

MATT: 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 ...

 

[ARCHIVE CLIP, Jim Glennon: So all right, let’s talk about the ...]

 

MATT: ... is devoted to Graham.

 

[ARCHIVE CLIP, Jim Glennon: ... about Graham vs. Connor and us actually using force.]

 

MATT: About teaching these cops about how to understand Graham, and -- and how it impacts their lives. And by the way this is the instructor, the Graham instructor. His name is Jim Glennon.

 

KELLY MCEVERS: He himself was a cop for years and years and years.

 

[ARCHIVE CLIP, Jim Glennon: I was in charge of use of force for 18 years.]

 

KELLY MCEVERS: He was a lieutenant outside of Chicago.

 

[ARCHIVE CLIP, Jim Glennon: And I tell you, we talked about Graham vs. Connor and our use of force policies on a regular basis. I don’t mean I got up four times a year and just read. What I would do is show a video and then let’s talk about Graham vs. Connor based on this video.]

 

MATT: So, fired up the projector.

 

[ARCHIVE CLIP, Jim Glennon: Come on.]

 

KELLY MCEVERS: It is really interesting to see these videos from their perspective.

 

[ARCHIVE CLIP, Jim Glennon: Like this one.]

 

[NEWS CLIP: Video of a ...]

 

KELLY MCEVERS: September, 2015, a guy named Freddy Centeno.

 

[NEWS CLIP: 40 year old Freddy Centeno.]

 

KELLY MCEVERS: 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 ...

 

MATT: Get out of their car, they’re just, like, 20 feet away from Centeno, who’s walking towards them on the sidewalk.

 

[ARCHIVE CLIP: Hey, Pistol Pete. Get on the ground! Get on the ground! (shots fired)]

 

KELLY MCEVERS: 10 shots, 7 of them hit.

 

[ARCHIVE CLIP, Jim Glennon: The sequence was 47 frames long, and that translates to about 1.566 seconds.]

 

KELLY MCEVERS: Jim claims it happens in about 1.566 seconds.

 

[NEWS CLIP: A 40-year-old mentally disabled man is hit seven times and dies in the hospital 23 days later.]

 

MATT: And in one of these news clips that Jim shows, the lawyer for Freddy Centeno’s family is basically just like ...

 

[NEWS CLIP: This is a, you know, a bad shooting. It’s an atrocity.]

 

MATT: 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 Freddy Centeno, they didn’t create any space, they didn’t give Freddy Centeno any time.

 

[NEWS CLIP: They told him, get on the ground. He didn’t have a chance to get on the ground. One second before they began to fire.]

 

[NEWS CLIP: In his honor's view, the video shows the officers did not give Centeno a chance to respond to their commands.]

 

MATT: So Jim plays all these reaction clips.

 

KELLY MCEVERS: And then ...

 

[ARCHIVE CLIP, Jim Glennon: Here’s what happens, it’s real quick.]

 

MATT: He plays the original body cam video again.

 

[ARCHIVE CLIP: Hey, Pistol Pete!]

 

MATT: You see Freddy Centeno.

 

KELLY MCEVERS: They tell him to get on the ground. He doesn’t.

 

MATT: And then Jim slows the video down, and when he does you can see Centeno’s right hand.

 

KELLY MCEVERS: Reaches into his pocket.

 

MATT: 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 Freddy Centeno’s hand has started to move.

 

[ARCHIVE CLIP, Jim Glennon: The movement of a hand a couple of inches.]

 

MATT: Just starting to come up out of his pocket.

 

KELLY MCEVERS: This moment from the pocket to the out-of-the-pocket ...

 

MATT: This, to Jim, was the moment.

 

[ARCHIVE CLIP, Jim Glennon: The moment. Remember that word.]

 

MATT: Jim was like, this is the only moment that matters. Like, forget what happened before, forget that the officers rolled right up on Centeno, forget that they weren’t giving him 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?"

 

[ARCHIVE CLIP, Jim Glennon: This man appears to be pulling out an object from his pocket. I can’t tell what it is, and you probably can’t either without outside information.]

 

KELLY MCEVERS: Turns out he had a nozzle from a garden hose.

 

[ARCHIVE CLIP, Jim Glennon: What was the call? Man with a gun. However you see this, whether he started moving 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. Any reasonable person would think it’s a gun.]

 

MATT: And so ...

 

[gunshots]

 

[ARCHIVE CLIP, Jim Glennon: Does this work under Graham? Yeah. It’s sad, yeah, but yes.]

 

KELLY MCEVERS: Yes.

 

[ARCHIVE CLIP, Jim Glennon: Under Graham, it’s fine, I believe.]

 

KELLY MCEVERS: For him, he’s just like, over and over and over stresses what would a reasonable police officer do ...

 

[ARCHIVE CLIP, Jim Glennon: At the moment you use force ...]

 

KELLY MCEVERS: ... in that moment?

 

[ARCHIVE CLIP, Jim Glennon: ... what did you know? Not what you could’ve known, not what you should’ve known. What did you know? What was going on? Look what it says up there.]

 

KELLY MCEVERS: He talks about Rehnquist and the decision. He's like, "What Rehnquist said is ...]

 

[ARCHIVE CLIP, Jim Glennon: Allowance must be made for the fact police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, rapidly-evolving about the amount of force that is necessary in a particular situation.]

 

KELLY MCEVERS: 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.

 

[ARCHIVE CLIP, Jim Glennon: This is an Albuquerque case.]

 

MATT: Jim plays another example, this one of a guy ...

 

[ARCHIVE CLIP: Drop the gun! [shots and sirens]]

 

MATT: A white guy who police officers shot because they thought he had a gun.

 

[ARCHIVE CLIP, Jim Glennon: Guy did not have a gun.]

 

MATT: 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 cops shot him.

 

[ARCHIVE CLIP, Jim Glennon: Does this work under Graham? Yeah.]

 

MATT: Another one.

 

[ARCHIVE CLIP, Jim Glennon: I talked to this officer. He gets a call to a domestic.]

 

MATT: Showed another video of a police officer shooting an unarmed white man in the head, and again he walked through it beat by beat.

 

[ARCHIVE CLIP, Jim Glennon: With Graham, you got to put yourself in that officer’s position, right?]

 

MATT: Said you got to look at just the 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 Gerry and Dethorne Graham had intended.

 

KELLY MCEVERS: Yeah, so ...

 

JAD: 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.

 

KELLY MCEVERS: 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?

 

MATT: Right.

 

KELLY MCEVERS: Like, that is the question.

 

JAD: I don’t know. Given the history of our country, I’d say in many cases, that’s not even a question.

 

MATT: Right.

 

JAD: 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?

 

WOODY CONNETTE: I think that’s right.

 

MATT: This is Woody Connette again. He represented Dethorne Graham in that original case.

 

WOODY CONNETTE: 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.

 

ELIE MYSTAL: I -- I would just suggest a whole more radical standard then.

 

JAD: This is Elie Mystal, More Perfect’s 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.

 

ELIE MYSTAL: 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.

 

JAD: 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?

 

ELIE MYSTAL: Yeah.

 

JAD: Is that -- that’s what you mean?

 

ELIE MYSTAL: 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 would be a standard that would allow us to prosecute these police officers.

 

JAD: But then a police person’s gonna just argue that, like, you don’t understand the pressures ...

 

ELIE MYSTAL: Sure.

 

JAD: ... that I'm under. It’s a split-second decision, Monday morning quarterbacking. If you do what you just said, we’re not gonna be able to do our jobs.

 

ELIE MYSTAL: And I would say, [expletive] you, police officer, I’m sick of you. I would say, "Screw you. You have had your chance. You’ve 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.

 

JAD: Gotcha.

 

ELIE MYSTAL: I’m -- 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.

 

JAD: Gotcha.

 

ELIE MYSTAL: If you want to talk about changing the standards, that is a standard change that could help.

 

MATT: Now that is, as Elie 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.

 

JAD: What do you mean?

 

MATT: 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.

 

JAD: Right.

 

MATT: 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 20/20 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 totality of circumstances justifies a particular sort of seizure."

 

JAD: The totality of circumstances.

 

MATT: Totality of circumstances, which -- and it seems to be at odds with all of the other stuff.

 

JAD: Right, which is all about, like, little slivers and moments and things.

 

MATT: 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.

 

JAD: So he had both -- both ideas in there at once?

 

MATT: 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’ve known, everything the officer would’ve 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 circuits say, 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 Dethorne Graham got pulled over outside a convenience store in Charlotte, waiting to see whether it matters that Dethorne Graham wasn’t trying to steal anything, that he was just a diabetic trying to get some orange juice.

 

JAD: 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?

 

MATT: Say it. And then -- so I sound okay?

 

JAD: Yeah, you do sound good.

 

JAD: Or would it even be used?

 

MATT: So I -- I called a few different people and was told, yes, but not quite in the way that maybe I would expect.

 

CHIRAAG BAINS: Well actually, one thing before I get into this, do you happen to have the charging document from ...

 

MATT: So I was talking to this guy Chiraag Bains who used to try use of force cases and civil rights cases.

 

CHIRAAG BAINS: I'm just waiting for it to come through. Okay, I got it.

 

MATT: So Derek Chauvin is the officer who was pushing his knee into George Floyd's neck. And he is facing, among other things, second-degree unintentional murder.

 

JAD: Okay.

 

MATT: And kind of oversimplified as basically mean that the charges that Chauvin, 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 Chiraag said to me that was kind of surprising is that, because this is a criminal case it's not -- the reasonableness standard isn't gonna be the front and center defense here for Chauvin.

 

CHIRAAG BAINS: So what might the defense be? One defense will be he didn't cause the death.

 

JAD: Really? So they're gonna argue that somehow the force being applied to his neck wasn't what killed him?

 

MATT: Right.

 

CHIRAAG BAINS: He's gonna 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.

 

MATT: Counter-argument from the prosecution will be, George Floyd wouldn't be dead if it were not for Derek Chauvin.

 

CHIRAAG BAINS: Right. He wasn't gonna die 17 minutes later if he was just sitting in his car or doing whatever else.

 

MATT: It was Derek Chauvin's knee in George Floyd's neck that triggered his death.

 

JAD: Hmm.

 

CHIRAAG BAINS: There's clear causation as required for criminal statutes. I think Chauvin loses that defense.

 

MATT: So another argument Chauvin's lawyers might make is that George Floyd ...

 

CHIRAAG BAINS: Well, he was resisting at certain points.

 

MATT: He's very strong. And so they might try to claim self-defense.

 

CHIRAAG BAINS: 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 -- 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."

 

MATT: Yeah, he's in handcuffs. Right.

 

CHIRAAG BAINS: He's on his chest. I mean, he's got three offers on top of him. He's not resisting in any way. So I think the defense will be made it shouldn't prevail.

 

MATT: So then Chiraag said it might be that at this point you would see a reasonable standard defense.

 

CHIRAAG BAINS: 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 effecting a lawful arrest.

 

MATT: Basically arguing it's not criminal if it's reasonable.

 

CHIRAAG BAINS: It can't be criminal to use force if he's used it consistent with that law.

 

MATT: 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.

 

JAD: Hmm.

 

MATT: You can even apply that force, according to the manual, to the point where somebody passes out.

 

CHIRAAG BAINS: That could be one way they frame this reasonableness argument. They'll just point to 609.06 and say, like, "Look. That says 'reasonable force.' I thought it was reasonable force."

 

MATT: 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 Chiraag says again, like, look, George Floyd clearly was not even capable of actively resisting.

 

CHIRAAG BAINS: There's no world in which this is reasonable. There'll be so many people lined up who should say this is unreasonable.

 

MATT: Right.

 

CHIRAAG BAINS: Right? Like, we saw -- never seen before, police chiefs come out on Twitter, public ...

 

MATT: Right, exactly.

 

CHIRAAG BAINS: Right. So I think there's a major consensus it'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, you know, Chauvin may say that, but the response to that will be, "Whatever you were intending to do doesn't matter. It's what you did."

 

DON LEWIS: You know, I cannot see any scenario, using even the Graham standard that that is reasonable.

 

MATT: 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 reasonableness that I didn't expect, that -- that it probably won't show up in Chauvin's case ...

 

DON LEWIS: But it will be at the heart of this case, primarily with the accomplice officers.

 

MATT: The other three officers who were at the scene, who have now been charged with aiding and abetting.

 

DON LEWIS: 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 and do you have a lawyer and set bail and all that kind of stuff.

 

MATT: And Don said one of those officers ...

 

DON LEWIS: Thomas Lane.

 

MATT: He was one of the officers on top of George Floyd.

 

DON LEWIS: Holding down, I think, his leg.

 

MATT: His lawyer in this preliminary hearing said ...

 

DON LEWIS: "Well, what is an officer supposed to do," you know? And, you know, he's supposed to do what he's trained to do.

 

MATT: And Don -- 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 -- the other two officers who were on top of George Floyd, Officer Lane and Officer Kueng ...

 

DON LEWIS: 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 -- 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 he looks like he's in distress." And he says something along those lines twice.

 

MATT: And Chauvin says ...

 

DON LEWIS: "No, we're gonna keep him right here."

 

MATT: And Don said from the perspective of the defense, if you're Officer Lane or Officer Kueng, you were doing what a reasonable officer would be doing.

 

DON LEWIS: Obeying, you know, the senior officer on the scene who's telling me that this is the proper way to do things.

 

MATT: 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 duty to intervene.

 

JAD: Hmm.

 

MATT: That an officer has a sworn duty to intervene if they see another officer essentially doing something that they think is unreasonable.

 

JAD: Wow. It is true -- I mean, it's interesting just given the conversations that are happening just in the -- at large, that the real reasonableness 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 -- that the legal question about reasonableness might actually be the context around the force, or the -- the bystanders, or 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.

 

MATT: Yeah.

 

MATT: I mean, do you -- do you -- when looking at the video it seems so clear. Like, it -- I feel so certain that -- that these officers and Chauvin will be -- will be convicted, because the video's just so damning.

 

DON LEWIS: Yeah. Yeah.

 

MATT: But then again, it's like I feel like I've had a similar thought in the past. And ...

 

DON LEWIS: Well, you know, the -- you know, I -- I, you know, prosecuted the Philando Castile. I was one of the special prosecutors in this Philando Castile matter.

 

MATT: So Philando Castile, this was 2016, he was driving, he had a gun in the car when he was pulled over by a police officer.

 

DON LEWIS: Philando Castile told the arresting officer that he had the gun in the car, that he was licensed to carry a gun.

 

MATT: And most likely while reaching for his license, made a move with his hand towards his waist.

 

DON LEWIS: A move that the officer -- and again, the officer was frightened. He thought he was reaching for the gun and he shot him. That's a perfect example of where this reasonable police officer standard, you know, fits.

 

MATT: There's a gun, things are happening fast.

 

DON LEWIS: I recognize the ambiguity there.

 

MATT: But as Don pointed out, as anybody points out, like, there's just no ambiguity when it comes to George Floyd's death.

 

DON LEWIS: 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.

 

MATT: 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 ...

 

DON LEWIS: Running away unarmed, he's shot in the back. I mean, the jury hung, you know? It's ...

 

MATT: Yeah.

 

DON LEWIS: But, you know, one thing that is kind of missing from all this, and I don't see this embedded in the Graham vs. Connor or any other standard, but let's -- let's not forget, we got to 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 to this question is, "A convenience store owner called because someone passed him a counterfeit $20. And where am I now? I'm strangling somebody to death." Why aren't people thinking about that?

 

JAD: This story was produced and reported by Matt Kielty with a big assist from co-producer Kelly Prime. Also thanks to producer Annie McEwen. I'm Jad Abumrad. Thanks for listening.

 

[SHAQUAN: This is Shaquan, calling in from Columbia, South Carolina. Radiolab is created by Jad Abumrad with Robert Krulwich, and produced by Soren Wheeler. Dylan Keefe is our Director of Sound Design. Suzie Lechtenberg is our Executive Producer. Our staff includes: Simon Adler, Becca Bressler, Rachael Cusick, David Gebel, Bethel Habte, Tracie Hunte, Matt Kielty, Annie McEwen, Latif Nasser, Sarah Qari, Arianne Wack, Pat Walters, and Molly Webster. With help from Shima Oliaee, W. Harry Fortuna, Sarah Sandbach, Malissa O’Donnell, Tad Davis and Russell Gragg. Our fact-checker is Michelle Harris.]

 

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