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Hey, I'm Jad Abumrad is Radiolab. It has been an intense week. Just a horrible, hard, difficult week. 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. In respect. And silence, I want to have a moment of silence for George Foy, recommend people have come to a stop.

Fists in the air, what we do know right now from our reporters on the ground is that this is a moment of silence.

And we would like to honor that as well. Been thinking a lot about those silences. All the silences that led to this silence. Honestly, there'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 Chervin, 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.

In the argument. That inevitably is going to get made in that courtroom is an argument that has been made over and over again. And we had the chance a few years back to take a deep dive into the legal standard that sits at the heart of so many of these cases now, knowing that what's happening in the world has so much more it's so much bigger than just what will happen in court. Still, we figured we could share and illuminate. This one small corner of what is happening to all of us right now.

And what might happen to Derek Trovan when he goes to trial for killing George Floyd? This story was originally released on our sister show More Perfect 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. OK, here's Matt with the story, I think we might as well just start should I try to sound Southern with a guy named Woody Canet?

I'm a lawyer with Essex. Richard's 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 on crutches. And he's a black man. He is or was. He's passed away. Mr. Graham, the man's name is Lauren Graham.

And Woody says, well, you know, like what what happened to your leg?

What's with the crutches? And Catherine lays everything out for him. Here we go.

So he was pulled over on West Boulevard in Charlotte, which is a four lane road to Thornsberry.

He worked for the city of Charlotte in the Department of Transportation on road crews doing road repairs. It was a Monday afternoon and on that day wanted to.

Thorne's friends and 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 juice because he was suffering the onset of a diabetic insulin reaction.

So the Thawne hopped in his friend's car.

They drove over to this convenience store to store and 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 is 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 in 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 the thorns, but his driver's license goes back to his squad car, starts radioing to get to get a hold of the convenience store to see if anything had happened.

And it's right around that moment that Tayshaun, 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 Dawn Graham Jr. He was a type one diabetic. What is type one diabetes?

Because I know it's one in two.

From what I understand, the type one 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 is 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 was seized 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 and once you get 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 for other officers arrived, the Thawne has actually passed out on the curb. One of the officers rolled Mr. Graham over on the sidewalk and cuffed his hands behind his back.

At one point, one of the officers grabs the thorn by the handcuffs and picks him up off the curb from from behind where the thorn was sort of in and out.

At this point, I guess he tries to tell the officers that he was a diabetic, that he 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. Pretty nasty scuffle ensued.

According to what is known as case syllabus, a decision was resisting the officers and apparently one of the officers slammed the Thorn's head into his friend's car. He suffered head and shoulder injuries. He also ended up with a broken foot, cuts around his wrists. And eventually the officers pick him up one on each arm, one on each leg, and just throw him into the back of a squad car.

While this was going on, a few people gathered around not long after that, the officers learned that nothing at all had happened at the convenience store. There was no crime, there was no robbery, there was no shoplifting.

So they drove him back to his house, still in handcuffs, pulled him out of the car.

A friend, it turns, has got him some OJ and the officers laid him out in his front yard, took the handcuffs off and then just drove 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 do you mean about this case is how something like he needed some orange juice that something so seemingly small would eventually become tied to?

This and all the shootings we've seen in the past years, mostly of young black men. Every time we hear one of these shootings, every time there is an outcry, every time the cop gets off, this incident is looming in the shadows, shaping the outcome. In many ways, it is quietly defying the air that we're living in. And I wanted to know how. How did it happen? So after that day with the officers in Charlotte, one thing I do remember that scene was that it wasn't right.

This was going to fight right.

And that is how he ends up walking into his office on crutches in 1985. And he tells what 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 is 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 you're going to claim that they did, we had to show that the police officers had acted maliciously for the purpose of causing harm. So they had to prove that the officers actually meant to hurt him. Yeah, that Woody and Thorn had to prove that the officers had it out for Dishan and we simply couldn't do that.

Yeah, it 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 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'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 Fourteenth 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 the Thorne lost that case. OK? All right. So loses it. Federal court lose it.

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 Beevor, a known civil rights lawyer in the area in Fayetteville, North Carolina.

Gerald was older and wiser than me. That's your wording.

That man Jerry had caught wind of the circuit decision.

It was just like, 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 cause 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, 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.

When he heard that, what he said. Sure, let's go. So, Jane, what he get together and they start looking around like what's out there, what cases can we draw and argue that there should be a different standard? And this just 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 what didn't like.

But then there was also in a number of cases, the Eighth Amendment. What's the eighth cruel and unusual punishment? 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 they had intent, that you're trying to hurt somebody, which means if you're going to prove anything yourself to crawl inside somebody's head. Right, but. There was this other amendment that some of the courts were using that Woody and Jerry looked to as they're sort of like Redeemer, the Fourth Amendment, the Fourth Amendment, the Fourth Amendment, which is which is the government cannot subject citizens to unreasonable search and seizure.

I have it on my legal pad.

The Fourth Amendment is the right of the people to be secure in their persons houses, papers and effects against unreasonable searches and seizures shall not be violated.

And his 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 it's not just that. But yes, it also includes that.

And generally what they like so much about the Fourth Amendment is that in there is this one important word, unreasonable, reasonable, reasonable 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 way. Correct. Then you ask, what is this person's behavior?

Reasonable or not, they have to act with objective reasonableness.

Wait a second. I mean, reasonableness is a slippery thing.

What you find reasonable when 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 so in the original piece, we went into a long bit about the history of this idea of a reasonable person, reasonable in quotes person. This was an idea that had been applied in English law and U.S. law for years and years and years. But the point here is that Woody and Jerry were for the first time taking the standard and bringing it to bear on police actions on the script.

And I think like what what Woody and Jerry were essentially trying to do is to say we need to use the Fourth Amendment and this idea of unreasonable search and seizure to create a reasonable officer.

So rarely the case is submitted in nineteen eighty nine, almost five years after everything happened to disarm Graham.

That one day in Charlotte, we'll hear argument next to number 87, 65, 71. His case went before the Supreme Court DSR and Graham versus Ms. Connor.

Now it's almost 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, may please the court.

And pretty quickly, these arguments you don't know.

It's, again, arguably unreasonable, doesn't know what the subjective intent of the officers are turn into like this word soup, some objective standard where you got Jerry A..

Whatever the lawyer for the officers subject of the justices, the objective subject to the dichotomy between getting super meta about what constitutes objectivity, objectively unreasonable and subjectivity subjective factor, have analysis tests and standard severe objective tests.

The objective analysis, bad intent, no subjective intent. I think we're playing with words in there until.

Well, one, Justice Thurgood Marshall, the lone African-American on the court, comes in and just asks, what reason was there for him come from the diabetic in a coma at the time, the officers didn't know that he was a diabetic in a coma.

The what was he doing that was so violent he had to be handcuffed? You have to go back one step even before that, Officer Connor. So petitioner acting a very suspicious and unusual manner.

It wasn't clear he saw him hurry into a convenience store.

What did he do? Was violent. Excuse me. What did he do that was violent? Mr. Berrys, anybody?

Testimony is petitioner's. Own witness said that petitioner was throwing his hands around that Barry had asked for Officer Canobolas, one I'm talking about before they put handcuffs on.

What was he doing before they tried to put handcuffs?

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 not threatening anybody. Did he strike any? The officers didn't have to wait until he really. Did he strike anybody? I don't believe the record indicates that he he threatened to strike anybody. He was acting in a very predictable and potentially dangerous manner. Your answer? Did he threaten to strike anybody?

He did not overtly threaten 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 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 and did even after he was handcuffed and the officers want to put him in the car, the undisputed record shows that he was vigorously fighting and kicking certain of diabetic object to being arrested rather than giving treatment.

He wasn't arrested. It was never. Why was he handcuffed?

He was handcuffed because the officers were concerned that he was a criminal suspect. He was acting in a very unusual and erratic way. He was throwing his hands around. And the district court stated from the record that he was handcuffed in part to protect himself as well as the officers and on to protect himself.

That's the district court. Omri's the record as indicating that. That's correct. Now they are different. Many collusion. When Justice Marshall. Said that suddenly I heard a judge. Who understood our point of view? Somebody gets it and all of a sudden I felt like I was not an idiot after all.

The court eventually puts out their opinion, it's written by the chief justice, William Rehnquist, and in that opinion, Rehnquist says skipping down here a little bit claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop or other, quote unquote, seizure of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right to be secure in their persons against unreasonable seizures and must be judged by reference to the Fourth Amendment's reasonableness standard.

So they get their reasonable officer standard, they get it and they get it unanimously, but nothing opinion. Whoa. It was a breakthrough. I don't think it be a stretch to say that at the time to a lot of people who were concerned about police brutality, a police 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 and objective standard.

We no longer had to show that the officers acted maliciously or sadistically. You don't have to inside the officer's head. You don't have to prove they had bad intent.

You just look at the case from the facts of the case and you say, what 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 that was a breakthrough.

So after winning, did the case get kicked back down to the circuit, like what happens to the thorn after we won in the Supreme Court? The case went back to the trial court level for another trial because 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, risks, Bruce, forehead squad car, front yard.

Essentially, he was the guy who did nothing wrong and was beaten up.

The case was given to the jury and the jury was told, OK, knowing what you now know, take the standard is reasonable standard and ask yourself is what happened to Lauren Graham reasonable? The jury deliberated, came back out, and they decided in favor of the police officers Mr. Graham lost. Now, whether you think there's a reason 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 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, 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 drug. Might be dangerous. A reasonable officer would subdue that person. Excuse me, I'm so sorry. Oh, there goes the dogs, you know, the dogs.

So when I started throwing game changer, he was actually moving from his home in St. Louis.

Brian, I'm just going to open the garage up for this guy.

Back to where he still had a lot of family in Charlotte. OK, I'm back, hopefully.

OK, now, um, I was just wondering, did your dad talk about the about what happened that day or did he talk about the court case at all?

No, he didn't. It wasn't something that he talked about the thought.

Injinoo says that his dad was just kind of trying to get on with his life.

He he started making furniture in his spare time, going to church a lot. But he had his he had his troubles. He had 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.

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 dehumanised like that, when when another individual, whether they. It's you know, it's it's kind of hard to explain that, but when when someone who has authority. Just it's it's like it's they 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. To Games senior 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, 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, not far from where the engineer 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 during that trial as a defense for the officer, the CNN reporter, information, 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 doubt.

They killed her baby by. Later that same year, the 12 year old boy shot and killed by two officers while holding a pellet gun, Tamir 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 framed Eric Garner.

A grand jury in New York City has refused to indict yet another white police officer said to have killed an unarmed black man. His death was reasonable. John Crawford, 22 year old black man killed last month, reasonable, carrying around a BB gun or a judge declared a mistrial today.

Samuel DuBose, 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 lay dying on the street. Terrence Crutcher, an unarmed black man, reasonable, shot and killed by police in Oklahoma.

Charlotte Police Chief Lemont Scott Jamar Clark said he killed my son Falana. Still reasonable. Are you kidding me right now? We're not evolving as a civilization. We're devolving. We're going back down to sixty nine. Damn. And in almost every one of those cases, Graham versus Conner, 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 cuts. One person, my my colleague who covers cops, describes it as like cops. Cops see it as like their First Amendment.

After the break, we'll ask, how did that happen? And we'll watch it happen. We'll be back in a moment. Hi, this is Dustin Roulstone from Troy, Alabama. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Slome at W w w Sloan.

Amjad, this is Radiolab. One of the things that sets this incident apart, the Florida incident, I mean, I say that because the Radiolab piece that we were playing and will continue to play in a second, it 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 children may face in court, and as we all know, in dozens of similar cases where a black person has been killed by a police officer, the officers have never been found guilty. Almost never happens. And so the question that I asked producer Matt Kielty and Kelly Prime. Was why?

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

And actually, like I have here, the the jury instructions from the Ninth Circuit. And this is what jury members are are told to think about when they have to assess this kind of use of force as we just one of those. Yeah.

And so the jury jurors are actually told this is your job. Yeah, exactly. Just a back at primetime, 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.

Those those are a couple of 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. See if to put yourself in the shoes of an officer in the moment and look at the world through their eyes. And that's how you have to understand these things. Right. And where did that where did where did the idea come from?

So that comes from Graham like that comes from the Chief Justice William Rehnquist 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 it's calculus must embody an allowance for the fact, and this is extremely important, the 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 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 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 kind of crazy. Meaning that that that moment, that superseding event essentially 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 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 grand standard that many people thought and hoped would would help victims of police violence does the exact opposite.

One person, my 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. OK, 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 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 has gone in and we were like, yeah, OK.

So I went to Cleveland. Oh, no.

You come over for this two day training course called Street Survival. It was in a hotel ballroom.

One of those hotel ballrooms where you have like a big conference. And how many people do you remember there? Somewhere just under two hundred cops.

Lots of really jacked up dudes with tats, mostly white. There were some sergeants and lieutenants, rookies right out of the academy submit 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 Seida. Nice. Come on, Cleveland. How's everybody doing? All right. How have you been to a counterprotests record? Place your hands. Let's do it this way. There's never been here before. Never been to a kind of a press class. Oh, well, 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. Are they all from all across the country?

And 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? And my wife and I talked about this.

If I start getting crabby or something else, they're 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, wow, there's times when it's this really touchy feely kind of thing that 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 told me I had to up starting secluding myself. I started alienating myself, 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.

All right. Let's talk about is devoted to Graham, about Reverend Connor and us actually used it force about teaching these cops how to understand Gram and how it impacts their lives.

By the way, this is the instructor that like Graham instructor, his name is Jim Glenanne. He himself was a cop for years and years and years.

I was in charge, use force for 18 years, was a lieutenant outside of Chicago. And I tell you, we talked about Bramble's Connor and our use of force policies on a regular basis. I mean, I got up four times a year and just read what I would do was show a video and then let's talk about branders, kind of based on this video. So fired up the projector.

It is really interesting to see these videos from their perspective, like this one video of a protest September 2015, a guy named Freddy Santana or two year old Freddie Santana, 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 the car.

They're just like 20 feet away from Santana, who's walking towards them on the sidewalk and the people on the ground.

Yeah. Ten shots, seven of them hit. The sequence was forty seven point one, that translates to one point five six six.

Jim's claims it happens in one point five, six, six seconds.

Are you old mentally disabled man is at certain times and dies in the hospital 23 days later.

And one of these news clips that Jim shows, the lawyer for Freddie Santana's family is basically just like, you know, 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're all right up on Freddie Centineo. They didn't create any space.

They didn't give Freddie S.A. any time to drop and get on the ground, give them a chance to get to the bottom one second before he put the fire. In his view, the video shows the officers did not give Santana a chance to respond to their commands.

So Jim plays all these reaction clips. And then here's what happens. It's real quick.

He plays the original body cam video again. You see Freddie S.A. 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 centennials right hand reaches into his pocket. Jim pauses and he's like, take a look at this right here, the end up on the screen, Jim has this frozen moment where you can see that Freddy sent his hand as started to move the movement of a and a couple of it just starting to come up out of his pocket at this moment from the pocket to the out of the pocket.

Mr. Jim, was the moment, the moment to remember that seems like this is the only moment that matters. Like forget what happened before. Forget that the officers rolled right up on Saturno. Forget that they weren't giving him much time or space.

It's this moment right here when Centennial 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, even with outside information.

Turns out he had a nozzle from a garden hose.

What was the call? Málaga, 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.

And so this is this work underground. Yeah, it's sad. Yeah. But yes. Yes. Underground. It's what I believe for him.

He's just like over and over and over stress is what would a reasonable police officer do the moment you use force in that moment?

What did you know that would you could have known which was, you know, what was going on, what it says out there.

He talks about Rehnquist and the decision is like what Rehnquist said is what we make of the fact police officers are often force make Split-Second judgments in circumstances that are uncertain, rapidly evolving by the amount of force that is necessary in a particular situation.

This is fast. It's dynamic. It's nothing like television. There's now 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 a Albequerque case. Jim plays another example.

This one of the guy, a white guy who police officer shot because they thought he had a gun. I did not have a gun get a knife. But the cops are going to call that he had a gun.

In a split second. He raised his arm like he was raising a gun up.

And so the cop shot him. This is his work underground. Yeah, another one. I talked to this officer.

He gets a call to a domestic show, another video of a police officer shooting an unarmed white man in the head. And again, he walks through a baby with Grant.

You got to put yourself in that officer's position, right?

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

And the only real question you can ask when the moment is so confined is did the officer feel threatened? Like was the fear that that officer had a reasonable fear in that moment? And that is a very different standard than what Woody and Jerry and Thorn Graham had intended.

Yeah, so Kelly, so what we learned at that point was the way in which this reasonableness standard had been reduced to apply just to a particular moment, a slice of a moment. And in many of these cases, the central question then became simply, was the officer afraid in that moment? And in the context of these killings, as Kelly McEvers pointed out to us. That is a very loaded question like this, 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. And I 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 what Econet again, he represented Lauren 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, I would I would suggest the whole more radical standard that this is Mr. More perfectly legal editor. We ended up talking with him about this shortly after the Falana Castiel verdict came out.

So he was well, that was a tough pill for him and many people to swallow.

I would suggest that they have to be the cops have to be right, in fact, which is something we usually do not apply to the law.

What does that mean? Like from in the scenario of a police person? Whose does that mean? Like I know of you, right. That you don't have a toy gun. Yeah. Is that that's what you mean. Yeah.

So if you shoot me because you think I have a gun, I had best have a gun and if I don't have a gun, your ass is going to jail because you were wrong. I don't care if you really thought so. I don't care if I was telling you I had a gun.

If I, if you are not right, in fact, then you have to go to jail. I think that is that would be a standard that would allow us to prosecute these police officers.

But then a police person is going to just going to argue that, like, you don't understand the pressures that are under it's a split second decision, Monday morning quarterbacking.

If you do what you just said, we're not going to be will do our jobs.

And I would say to 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 three hundred 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 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 catcher, if you want to talk about changing the standards, that is a standard change that could help.

Now, that is, as Ali 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 is 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?

OK, 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. 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 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 both ideas and 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, OK, knowing all that, was it reasonable for the officer to be scared in the moment the other half of the year could say, no, no. The 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 to the officer to 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 may.

Because the argument is happening in the lower courts, so in a way, we're kind of living at a time very much like 1984 when the Thorn Graham got pulled over outside a convenience store in Charlotte. Waiting to see whether it matters that the thorn Graham wasn't trying to steal anything, that he was just a diabetic trying to get some juice. OK, so we first reported this story in twenty seventeen. And after the death of Jorge Floyd, which sparked global protests after charges were brought against the officers involved, we at the show begin 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 and then so I sound OK. Yeah, you do sound good or would it even be used? So I called a few different people and was told, yes, but not not quite in the way that maybe I would expect.

Well, actually, one day before I get into the habit of the charging document.

So it's talking to this guy, Sharrod Bane's, who used to try use of force cases in civil rights cases. I was waiting for it to come through.

OK, so Derek Shalvey is the officer who is pushing his knee into George Floyd's neck, and he is facing, among other things, second degree unintentional murder.

OK, kind of oversimplify. This basically means that the charges that Shoven, by pushing his knee into George Floyds neck for nine minutes, whether he intended to or not, led to his death.

And the thing that Sharrock said to me that was kind of surprising is that because this is a criminal case, it's not the reasonableness standard isn't going to be the front and center defense here for Schavan.

So what might the defense be? One defense will be he didn't cause the death, really.

So they're going to argue that somehow the force being applied to his neck wasn't what killed him.

Right. He's going to use likely the what was in the initial autopsy report saying that Floyd didn't die of asphyxiation and that there were these underlying health issues.

Counterargument from the prosecution will be George Floyd wouldn't be dead if it were not for Derek Chavan.

He wasn't going to die. Yes, 17 months later, if he was just sitting in his car or doing whatever else it was, it was Derek Chauvin's knee in George Floyds neck that triggered his death.

That's clear causation as required for criminal statutes. I think Trovan loses that defense.

So another argument Challenge's lawyers might make is that George Floyd, he was resisting at certain points, is very strong.

And so they might try to claim self-defense even in the Rodney King case where he was being beaten over and over and over, there were self-defense claims because it'll be like the minute details. You couldn't see this on the video, but he moved his leg a little bit and I was telling him to put his leg down, this sort of thing. They'll say we didn't know they'll try that. And then the prosecution would say, no, no way. The prior stuff was minimal and it was prior.

He's handcuffed. He's just right. He's on his chest. I mean, he's got three officers on top of him. He's not resisting in any way. So I think the defense will be made. It shouldn't prevail.

So then Sharrock said it might be that at this point you would see a reasonable standard defense in that in Minnesota state law.

I told a couple of statutes there is some authorization for use of force and it says reasonable force may be used upon or toward the person of another without their consent by a police, not by a public officer in effecting a lawful arrest, basically arguing it's not criminal.

If it's reasonable, it can't be criminal to use force if he's used it consistent with that law.

And so one thing that's been floating out there is that at the time of this incident in the Minneapolis Police Department's Policy and Procedures Manual, it did state that you could use a neck restraint, you could use your knee on somebody's neck to restrain them.

So long as you weren't blocking you weren't putting force on their trachea or blocking their airway.

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

They that could be one way they frame this reasonableness argument. I'll just point to six or nine or six and say, like, look, that says reasonable force. I thought it was reasonable force.

But the problem for Schavan 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 tries again, like, look, George Floyd clearly was not even capable of actively resisting, but there's no world in which this is reasonable.

There'll be so many people lined up. We should say this is unreasonable. We've never seen before police chiefs come out on Twitter, right? Exactly 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 and may say that the response to that will be whatever you were intending to do doesn't matter. It's what you did.

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

So one of the other people I spoke to was Don Lewis, who is an attorney in Minneapolis. And I was actually Don, who told me this thing about reason was that I didn't expect that that it probably won't show up in Siobhan's case, but it will be at the heart of this case, primarily with the accomplice officer.

The other three officers who were at the scene who have now been charged with aiding and abetting, we've already had a hint today that the officers had their initial appearance today, which is kind of the first appearance. You just show up and take me, you know, identify yourself and do you have a lawyer and set bail and all that kind of stuff.

And Don said one of those officers, Thomas Lane, he was one of the officers on top of George Floyd holding down, I think, his lake.

His lawyer in this preliminary hearing said, well, what is an officer supposed to do?

You know, and, you know, he's supposed to do what he's trained to do.

And Don, Don explained that Derek Schavan was the senior officer there at the scene. He was a 19 year veteran. He had trained officers and how to use force.

And so the the other two officers who were on top of George Floyd, Officer Lane and Officer Come, 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 Shalgam. And at one point, Thomas Lane says, you know, I think we should do something. I'm paraphrasing you saying, you know, I think we should roll him over because he looks like he's under stress and he says something along those lines twice.

And Sharman says, no, we're going to keep them right here.

And Don said, from the perspective of the defense, if you're Officer Lane or Officer Cung, you were doing what a reasonable officer would be doing, obeying, you know, the senior officer on the scene who's telling me that this is the proper way to do things now.

And it gets like it gets tricky like that very well might be an argument the defense makes. But if you look at Minneapolis, the Minneapolis Police Department's procedure and policy manual in the use of force section, there is a small category there about a duty to intervene, that an officer has a sworn duty to intervene if they see another officer essentially doing something that they think is unreasonable.

Wow. It is it is true that 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, it's 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. Um, 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 the people adjacent to the force, um, the people who could speak up and intervene. Um.

It is interesting, that's not what I expected, but that makes it a lot of sense. Yeah, I mean, do you do you there when looking at the video, it seems so clear like I feel so certain that that these officers and Schavan will be will be convicted because the video is just so damning.

Yeah, but then again, it's like I feel like I've had a similar thought in the past and.

Well, you know, the you know, I, you know, prosecuted the Cilento kids deal. I was what the special prosecutor in the Flello still matter.

So Clinica is this is 2016. I he was driving, he had a gun in the car when he was pulled over by a police officer.

I Castiel told the arresting officer they had the gun in the car, that he was licensed to carry a gun and most likely, while reaching for his license, made a move with his hand towards his waist, a move that the officer can.

I also was right in detail. He was reaching for the gun and he shot it. That's a perfect example of where this resole police officer stand.

You know, since there's a gun, things are happening fast. I recognize the ambiguity there.

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

But let me cite an example that you would have thought would've been a clear cut case, the Walter Scott case in South Carolina.

This is a case where a black man, again, it's a traffic stop, stop by white officer.

Eventually a physical altercation ensues.

And while Walter Scott is running away, running away unarmed, he's shot in the back. I mean. The jury hung. You know, it's yeah. But you know, one thing that is kind of missing from all this, and I don't see this embedded in 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, OK, why did I come here to begin with?

And the answer is question, is a convenience store owner called because someone passed him a counterfeit 20? And what am I now? I'm strangling somebody to death. Why aren't people thinking about that? Including three key.

How would a person have reason to believe this story was produced and reported by Matt Kielty with a big assist from producer Kelly Price, whether objectively reasonable behavior alone is an unreasonable requirement. They have to know.

They have to also thanks to produce random could. Do you think? I'm Jad Abumrad. Thanks for listening. You're almost saying I'm going to be the person who felt like this that make it. The Shaquan calling in from Columbia, South Carolina, Radiolab is created by Jad Abumrad with Robert Krulwich and produced by Sean Wheeler. Dylan Keefe is our director of Sound Design. Suzy Leuchtenburg is our executive producer. Our staff includes Simon Adler, Rebecca Bresler, Rachel Kucik, David Jebal Bhathal Habchi, Tracy Hunte, Matt Kielty, Annie McKune, Logic Nassr, Sarah Corey, NY, Pat Walters and Molly Webster with help from Shimoni, i.e. Harry Fortuna, Sarah Stanback, Melissa O'Donnell, Todd Davis and Russell Gregg.

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