Transcript

Jad Abumrad:

Before we get going, uh, just a quick warning, this podcast contains some descriptions of graphic violence and also some strong language, so be warned.

Intro 1:

Wait, wait, you're listening (laughs)

Intro 2:

Okay.

Jad Abumrad:

All right.

Intro 1:

Okay.

Jad Abumrad:

All right.

Intro 2:

You're listening-

Intro 1:

Listening-

Intro 2:

... to Radiolab.

Intro 1:

Radiolab.

Intro 2:

From...

Intro 1:

W-N-Y-

Intro 2:

C?

Intro 1:

Yeah.

Jad Abumrad:

Go.

Matt Kielty:

So nice to see you again, Jad.

Jad Abumrad:

Uh, why did you say that with some venom?

Kelly Prime:

(Laughs).

Jad Abumrad:

Uh, it's just, uh, you've been away for awhile.

Matt Kielty:

(Laughs)

Jad Abumrad:

The only way, only way I can see you is when I come visit you with your other family.

Kelly Prime:

(Laughs).

Jad Abumrad:

Okay. So this is Radiolab producer Matt Kielty.

Matt Kielty:

Yeah.

Jad Abumrad:

We're talking about... What are we talking about?

Matt Kielty:

We're talking about a Supreme Court case from 1989.

Jad Abumrad:

Mm-hmm (affirmative). And, uh, today Matt has a story that he's been recording for about two years that we are going to play both here on More Perfect and also here on Radiolab.

Matt Kielty:

So buckle up.

Jad Abumrad:

Where, where should we start?

Matt Kielty:

I think, uh, we might as well just start...

Woody Connette:

Should I try to sound Southern?

Matt Kielty:

With a guy named Woody Connette.

Woody Connette:

I'm a lawyer with Essex Richards, a law firm in Charlotte, North Carolina.

Matt Kielty:

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 takin' about anything that came through the door.

Matt Kielty:

And one day says Woody, this guy walked in.

Woody Connette:

Uh, late thirties, uh, fairly thin.

Matt Kielty:

5'9", 5'10".

Woody Connette:

On crutches.

Matt Kielty:

And he's, he's a black man.

Woody Connette:

He is... or was. He's passed away. Mr. Graham.

Matt Kielty:

The man's name was Dethorne Graham and Woody says, well, you know, like what, 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 Kielty:

Dethorne told Woody he worked for the city of Charlotte in the department of transportation.

Woody Connette:

Owned road crews doing road repairs.

Matt Kielty:

It was a Monday afternoon and on that day one of Dethorne's friends and coworkers stopped by his place.

Woody Connette:

And-

Matt Kielty:

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, uh, suffering the onset of a diabetic insulin reaction.

Matt Kielty:

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 Kielty:

... got to the checkout counter-

Woody Connette:

But there's a line there. So he puts the bottle down and hurries out.

Matt Kielty:

... gets back in his friend's car-

Woody Connette:

They take off. Now, uh, this is where the problems started.

Matt Kielty:

Turns out at the same time, all that's happening there is actually an officer-

Woody Connette:

... who was African American.

Matt Kielty:

... sitting in his squad car.

Woody Connette:

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

Matt Kielty:

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 Kielty:

So he goes up to the driver's side, presumably gets Dethorne's buddy's driver's license, goes back to his squad car, starts radioing, um, to get, to get a hold 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 Kielty:

Like sort of stumbled around it.

Woody Connette:

Then he sat down on the curb.

Matt Kielty:

And he started going into shock.

Dethorne G Jr.:

Uh, like, almost like a seizure he would have.

Matt Kielty:

Oh really?

Dethorne G Jr.:

Uh huh (affirmative). Yeah and it was terrifying.

Matt Kielty:

This is the Dethorne Graham Jr.

Dethorne G Jr.:

He was a type one diabetic.

Matt Kielty:

What is type one diabetes? Cause I know it's one and two.

Dethorne G Jr.:

From what I understand the type one diabetes is when your body just doesn't produce enough, uh, insulin.

Matt Kielty:

A- and what would that seizure look like?

Dethorne G Jr.:

Well, y- you know I can, one incident in particular, I can remember us being in church and he got like this blank stare on his face and you see the beads of sweat come on his forehead. His body was seized up and he would shake and he would bite his tongue up, and-

Matt Kielty:

Oh.

Dethorne G Jr.:

... and so I can remember my mother trying to, you know, force a spoon into his mouth to keep him from biting his tongue up. And the main thing was try to get some orange juice in him. That way it would raise his, uh, blood sugar. And, and once you got the orange juice in him, he'd sleep for a couple hours and, and he'd wake up and he'd be exhausted. But he'd be alive.

Matt Kielty:

All right. So Charlotte city street...

Woody Connette:

At this point, four other officers arrived.

Matt Kielty:

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 Kielty:

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

Jad Abumrad:

Oh wow.

Matt Kielty:

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, "Hey, nothing wrong with the motherfucker but he's drunk."

Matt Kielty:

At some point around here, the details are a little unclear.

Woody Connette:

A pretty nasty scuffle ensued.

Matt Kielty:

According to what is known as case syllabus, uh, Dethorne was resisting the officers. And apparently when 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 Abumrad:

Hm.

Woody Connette:

While this was going on, um, a few people gathered around.

Matt Kielty:

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 Kielty:

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

Woody Connette:

Pulled him out of the car.

Matt Kielty:

A friend at Dethorne's house got him some OJ.

Woody Connette:

And, uh, the officers laid him out in his front yard, took the handcuffs off, and then just drive away.

Jad Abumrad:

Huh.

Matt Kielty:

Was there an apology?

Woody Connette:

Oh, no.

Matt Kielty:

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 Kielty:

... that. Something so seemingly small would eventually become tied to-

Crowd:

Hands up, don't shoot! Hands up, don't shoot!

Matt Kielty:

... this. And all 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?

Court Announce:

The honorable, the chief justice, and the associate justices of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business before the honorable, the Supreme court of the United States are admonished to draw near and give their attention. Oyez, oyez. For the court is now sitting. Oyez. God's faith, the United States, in this honorable court. Oyez. Oyez.

Matt Kielty:

All right. To wind back the clock a little bit.

Dethorne G Jr.:

I will say this about my dad now. He wasn't someone that would, would, uh, just lay down and roll over.

Matt Kielty:

Talking to Dethorne Jr., I asked him a little bit about his dad and he told me that Dethorne Sr. grew up in the South.

Dethorne G Jr.:

Eastern North Carolina, owned a tobacco farm.

Matt Kielty:

He was a hard worker, good student.

Dethorne G Jr.:

His sisters told me that he was the first, uh, black acc-, or African American, accepted to Duke university.

Matt Kielty:

Huh.

Dethorne G Jr.:

But, uh, my grandmother, she wouldn't let him go because of, you know, during the Civil Rights era, that she didn't want them to have to experience, uh, all that, all that mess.

News Reporter:

This is a CBS news special report.

Matt Kielty:

And just for a little bit of context here, I mean like the Civil Rights Movement was a lot of things, but there was this big part of it that was about police brutality.

News Reporter:

Last night there was open war.

Matt Kielty:

In 1965, you had the infamous Watts riots in Los Angeles.

News Reporter:

Snipers make the streets a battlefield.

Matt Kielty:

Also, what was known as the long hot summer of 1967.

News Speaker:

Are we going to die for our freedom?

Crowd:

Yeah!

Matt Kielty:

Where there were more than 150 race riots across the country.

News Speaker:

Getting tired being pushed around by you white people, that's all.

Matt Kielty:

A lot of which were sparked by accusations of police brutalities.

News Speaker:

Stopping us on the street, kicking in the doors, taking down to the police station, they're kicking your teeth in.

News Speaker:

I will not accept charges against policemen. I will not accept charges against policeman. This is a judge, not some wild eyed cracker that made this statement, although there might not be any difference, there might not be any difference if you can think on that. Do you understand that, if we cannot bring charges against the policemen who have murdered us and destroyed our homes and businesses, where will we go? Where will we go?

Dethorne G Jr.:

She didn't want him to have to experience, uh, all that, all that mess. So he ended up, I think he ended up going to Fayetteville State-

Matt Kielty:

A historically black college.

Dethorne G Jr.:

... in North Carolina.

Matt Kielty:

And when Dethorne Senior graduated... Actually one of the first jobs that he had-

Dethorne G Jr.:

He worked for an employer called, uh, Precision Springs.

Matt Kielty:

This was a steel company that specialize in making springs, but a- at a certain point he ended up actually suing the company.

Dethorne G Jr.:

For discrimination based on how they were treating, uh, you know, people of color.

Matt Kielty:

So, after that day with the officers in Charlotte-

Dethorne G Jr.:

The one thing I do remember dad saying was that it wasn't right.

Matt Kielty:

... Dethorne was going to fight.

Woody Connette:

Right. And-

Matt Kielty:

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 Kielty:

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 Kielty:

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-

Woody Connette:

No.

Matt Kielty:

... these officers did not use excessive force. And if you're going to claim that they did-

Woody Connette:

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

Jad Abumrad:

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

Matt Kielty:

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 Kielty:

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

Woody Connette:

It's an almost impossible standard to meet.

Matt Kielty:

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. Um, if the question is what should the standard be for holding a cop accountable for their use of force, then in the mid '80s, um, 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.

Jad Abumrad:

Why was that the standard?

Matt Kielty:

This is kinda hard to explain.

Woody Connette:

I don't have the Fourteenth Amendment in front of me, but it essentially says-

Matt Kielty:

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 Abumrad:

Okay. All right, So loses at Federal Court-

Matt Kielty:

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 Abumrad:

Same thing?

Matt Kielty:

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

Gerald Beaver:

Radio, can you hear me?

Matt Kielty:

From this guy.

Gerald Beaver:

Yup.

Woody Connette:

Gerry Beaver.

Matt Kielty:

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. (laughs)

Matt Kielty:

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 cause it made him feel better. So I call Woody and said, "Are you guys planning on taking this case to the Supreme Court?"

Matt Kielty:

And Woody was like-

Woody Connette:

No.

Matt Kielty:

My client can't really afford that.

Gerald Beaver:

And 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 Kielty:

When he heard that Woody said-

Woody Connette:

Sure, let's go.

Matt Kielty:

So Gerry and Woody get together and they start looking around, like, like, what's out there? What cases can we draw on to argue that there should be a different standard and this just so happened, this was 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.

Woody Connette:

But then there was also in the number of cases, the Eighth Amendment.

Matt Kielty:

What's the Eighth?

Justice Prior:

Cruel and unusual punishment.

Matt Kielty:

Hey justice prior.

Woody Connette:

The Eighth is cruel and unusual punishment.

Matt Kielty:

Problem there-

Justice Prior:

Which doesn't totally explain itself...

Matt Kielty:

What is cruel? What is unusual? Like, take the word cruel. Cruel seems to imply-

Woody Connette:

They had intent.

Matt Kielty:

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 Abumrad:

Right.

Matt Kielty:

But, there was this other amendment that some of the courts were using that Woody and Gerry looked to as their sort of, like, redeemer.

Woody Connette:

The Fourth Amendment.

Gerald Beaver:

The Fourth Amendment.

Matt Kielty:

The Fourth Amendment. Which is...

Gerald Beaver:

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

Matt Kielty:

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 Abumrad:

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

Matt Kielty:

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

Gerald Beaver:

Reasonable.

Woody Connette:

Reasonable.

Matt Kielty:

Reasonable.

Gerald Beaver:

The concept of reasonableness, what is reasonable and what is not reasonable.

Matt Kielty:

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

Gerald Beaver:

You look at the case from the facts of the case.

Matt Kielty:

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

Gerald Beaver:

Correct.

Matt Kielty:

Then you ask was this person's behavior reasonable or not?

Gerald Beaver:

They have to act with objective reasonableness.

Jad Abumrad:

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

Matt Kielty:

Could very well be different?

Jad Abumrad:

Could be completely different.

Matt Kielty:

Yes and no. It, it can feel slippery. But legally-

Gerald Beaver:

The whole concept of reasonableness had hundreds of years of precedent.

Matt Kielty:

I mean, I, I find this very fascinating and I don't know if you want me to give you, like, a little bit of a, a backstory?

Jad Abumrad:

Well, uh, do you want t- to give me a little bit of backstory?

Matt Kielty:

I don't know. I think it's kinda, it's, it's interesting how it came to be and how popular it is.

Jad Abumrad:

Yeah. C- take me o-, take me on the ride.

Matt Kielty:

Okay. All right. So, uh, we go back to like the 1830s.

Jad Abumrad:

Uh, is that Andrew Jackson era? Now he's 18-

Matt Kielty:

No, no, no. Actually we're over in Europe.

Jad Abumrad:

Oh, okay.

Matt Kielty:

Uh, we're, we're in Belgium. Uh, this is going to be like a little windy, but I think it kind of makes sense. So in the 1830s, this guy Adolphe Quetelet. Adolphe Quetelet is a mathematician, he's an astronomer. If you want to picture something, he had hollow cheeks, these big sideburns. Uh, looked a little bit like, um, David Strathairn... the, the guy from the Edward Moreau movie, the Jason Bourne movies. If you've, if that helps you at all.

Jad Abumrad:

Yeah. Yeah, totally. It's great.

Matt Kielty:

Anyhow, uh, he was a super smart guy and in the 1830s the Belgian government wanted to set up an observatory, but astronomers had this issue, um, that they had trouble pinpointing the location of stars because their telescopes were just, uh, so bad. But Quetelet was one of these astronomers who knew you could use, uh, st- statistics to figure these things out. You could take an average of all the different measurements and average of the meteorological data and that can help you pinpoint where stars were actually going to be in the sky-

Jad Abumrad:

Really?

Matt Kielty:

... so that they can make predictions.

Jad Abumrad:

Interesting, I didn't know that.

Matt Kielty:

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

Jad Abumrad:

Was he trying to, like, come up with the, sort of, proto-man kind of thing?

Matt Kielty:

Yeah, totally. And it would have a huge impact on public health. But he ends up actually going beyond this and it's beyond just like physical traits, and he starts to like push into man's morality and he's looking at, uh, crime rates, suicide rates, marriage rates. And in the 1830s, he starts, uh, laying out this concept, what is, uh, in French, uh, l'homme moyen which translates into the average man.

Jad Abumrad:

The average man. So he, so this is like big data, 1830s style.

Matt Kielty:

Yeah. And, and this idea of l'homme moyen, the average man, it became, uh, very useful in law, English law.

Jad Abumrad:

Really? How, exactly?

Matt Kielty:

Let me explain. In Victorian England, there was much to do about people who wanted to sue for damages or left in bandages. There was a need for constant averages, a way to take measuring stock to see if a person had straight from the flock. This surely seemed like the best way to determine if the accused had to pay.

Jad Abumrad:

Uh, what are you doing?

Matt Kielty:

Oh, uh, that's stanza one.

Jad Abumrad:

(Laughs)

Matt Kielty:

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

Jad Abumrad:

Wow. (laughs)

Matt Kielty:

What? (laughs) What?

Jad Abumrad:

I didn't even know you had that in you, Kielty. Wait so, okay. So you're saying that judges and juries began to use these averages as a way to sort of, like, figure out, like, if you're suing somebody else that this somebody else, did they act out of the ordinary? Were they unreasonable?

Matt Kielty:

Yeah, and it was just a few years after Quetelet and this whole average man thing that English law started developing this idea, this standard known initially as the Reasonable Man Standard. Um, eventually switches to Person, uh, to be a little bit more gender inclusive.

Jad Abumrad:

Mm-hmm (affirmative).

Matt Kielty:

But, uh, this reasonable person, it's one of the longest established fictional characters that exists in what is known as, like, the legal village where you have these other little characters.

Jad Abumrad:

(Laughs)

Matt Kielty:

Like, it starts with the reasonable person and then you start, you get like a slew of these other, these other characters that come out of that, which is, uh, I have a little list. There's the ordinary prudent man of business. Uh, the officious bystander.

Jad Abumrad:

Wow.

Matt Kielty:

There is the fair minded and informed observer. There's the reasonable juror. There's the reasonable parent. There's the reasonable landlord. There's a reasonable neurosurgeon. A reasonable civil engineer.

Jad Abumrad:

Really?

Matt Kielty:

There's also a reasonable hairdresser.

Jad Abumrad:

Really?

Matt Kielty:

It's, it's sort of like, it's like in any sort of cr-, uh, uh, trade or craft, um, where there's business being done or you have the ability within your craft to harm somebody. Legally, it became very useful to have an average, archetypal person doing that craft so that the jury or the judge, um, would have something to use as a measurement when rendering judgment.

Jad Abumrad:

That's interesting. So, like, in the hairdresser example, whatever it was that led to that phrase probably was a Queteletan survey, at least an imagined one, of hairdresser behavior.

Matt Kielty:

Yeah. Like, like maybe you went in to get a haircut and you walked out and half your ears gone-

Jad Abumrad:

Right.

Matt Kielty:

... and you're just like, where'd half my ear ago? And then, it's just you go to court and you're like, any reasonable hairdresser would not have made that cut.

Jad Abumrad:

Right. That's so interesting. So it starts with this astronomer and ends up with this village of reasonableness.

Kelly Prime:

Can I chime in with a funny thing about the village thing?

Matt Kielty:

Please.

Jad Abumrad:

This is producer Kelly Prime.

Kelly Prime:

So, like, in English law, um, like Matt said, there's like this village of people. But in England at the time, they had this idea that it, that it wasn't like a village, i- it was people on a bus.

Jad Abumrad:

(Laughs)

Kelly Prime:

It was called The man on the Clapham omnibus. Which is, uh, roughly, I looked up, London bus route 88.

Jad Abumrad:

Wait so this is like a bus full of regional people?

Matt Kielty:

(laughs)

Kelly Prime:

Yeah, yeah. So all those people are-

Matt Kielty:

Where are they going?

Kelly Prime:

I don't know, they just ride all day.

Matt Kielty:

(Laughs).

Kelly Prime:

All those people, just waiting for their case to come up and be like, "Oh, that's, that's you, hairdresser." Um, and then, like, that concept moved and like, Australia was like, "Okay, we should use that." And so one part called it the man on the Bondi tram, another part called it the man on the Burke street tram.

Jad Abumrad:

Mm-hmm (affirmative).

Kelly Prime:

And then Hong Kong got it. And they said it's the man on the, uh, Shang, Shang Ki Wan tram.

Jad Abumrad:

W- so the bus is just a convenient vessel to hold all these reasonable people?

Kelly Prime:

Yeah, yeah, yeah. So, um, England said all these people are on a bus because you didn't want someone who's like, like so lowly that they are, like, they're not riding the bus. They're like holed up in a cave somewhere or someone that is, like, high up on their castle. It's like-

Jad Abumrad:

It's like the common man.

Kelly Prime:

Yeah, exactly. So it said, um, it was described as reasonably educated, intelligent, but nondescript.

Matt Kielty:

And I think like what, what Woody and Gerry, to bring it all the way back, were essentially t- 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.

Jad Abumrad:

Oh. So we need to add a reasonable officer to the village.

Matt Kielty:

Right.

Jad Abumrad:

Or the bus.

Matt Kielty:

So...

William R:

Really, the case is submitted.

Matt Kielty:

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

William R:

We'll hear argument next to number 876571.

Matt Kielty:

... his case went before the Supreme Court.

William R:

Dethorne Graham versus M.S. Connor.

Matt Kielty:

Now, Dethorne wasn't there for the arguments. Woody was there-

Woody Connette:

As a spectator, to watch.

Matt Kielty:

Gerry was actually arguing the case. Did you have butterflies?

Gerald Beaver:

Of course.

William R:

You may proceed whenever you're ready.

Gerald Beaver:

Mr. Chief Justice, may I please the court?

Matt Kielty:

And pretty quickly these arguments-

William R:

You don't know it-

Gerald Beaver:

It's the beginning of-

William R:

... completely unreasonable unless you know what the subjective intent of the officers are.

Matt Kielty:

... turned into like this word soup.

Justice:

Some objective standard.

Matt Kielty:

Where you got Gerry-

Gerald Beaver:

Objective-

Officers Lawyer:

Whatever.

Gerald Beaver:

... jurisprudence.

Matt Kielty:

The lawyer for the officers.

Officers Lawyer:

Subjective.

Matt Kielty:

The justices.

William R:

The objective, subjective dichotomy, but just saying-

Matt Kielty:

All getting super meta about what constitutes objectivity-

William R:

Objectively unreasonable, I-

Matt Kielty:

... subjectivity-

Officers Lawyer:

Subjective factor have-

Matt Kielty:

... analysis, tests and standards-

William R:

Severe objective tests, and the objective analysis of-

Matt Kielty:

... bad intent, no intent.

Officers Lawyer:

Subjective intent.

Gerald Beaver:

I think we're playing with words there.

Matt Kielty:

Until-

Thurgood M:

Well-

Matt Kielty:

One justice, uh, Thurgood Marshall, the lone African American on the court, comes in and just asks-

Thurgood M:

What reason was there for handcuffing the diabetic in a coma?

Officers Lawyer:

At the time the officers didn't know that he was a, uh, diabetic in a coma. The uh-

Thurgood M:

What was he doing that was so violent that he had to be handcuffed?

Officers Lawyer:

You have to go back one step even before that. Officer Connor saw a petitioner act a very suspicious and unusual manner-

Thurgood M:

Violent?

Officers Lawyer:

...hurry in to the convenience store. Well, it wasn't clear. He saw him hurry into a convenience store and hurry out.

Thurgood M:

But what did he do that was violent?

Officers Lawyer:

Excuse me?

Thurgood M:

What did he do that was violent?

Officers Lawyer:

Mr. Berry's-

Thurgood M:

He hadn't threatened anybody.

Officers Lawyer:

Testimony, as petitioner's own witness, said that, uh, petitioner was throwing his hands around, that Barry had asked for officer Connor's help catching-

Thurgood M:

What was he doing, I'm talking about before they put handcuffs on him. What was he doing before they tried to put the handcuffs on him?

Officers Lawyer:

He was acting in a very bizarre manner. He ran out-

Thurgood M:

I-

Officers Lawyer:

... of the car, circled around it twice, and then sat down. The district court.

Thurgood M:

Was that threatening anybody? Did he strike anybody?

Officers Lawyer:

Well, the officers didn't have to wait until-

Thurgood M:

Did he, did he strike anybody?

Officers Lawyer:

I don't believe the record indicates that he struck anybody.

Thurgood M:

Did he threaten to strike anybody?

Officers Lawyer:

He was acting in an-

Thurgood M:

Did he, correct-

Officers Lawyer:

... in an unpredictable and potentially dangerous manner.

Thurgood M:

Did he, can you answer, did he threaten to strike anybody?

Officers Lawyer:

He did not overtly threaten to strike anyone.

Thurgood M:

Did he have a weapon of any kind?

Officers Lawyer:

Uh, the record doesn't indicate, I don't believe.

Thurgood M:

He, the record didn't show he had a weapon of any kind?

Officers Lawyer:

That's correct, but the record-

Thurgood M:

Why was he handcuffed?

Officers 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 did even after he was handcuffed and the officers wanted to put him in the car, the undisputed record shows that he was vigorously fighting and kicking.

Thurgood M:

Well shouldn't a diabetic object to being arrested rather than given treatment?

Officers Lawyer:

He wasn't arrested, he was never arrested.

Thurgood M:

Why was he handcuffed?

Officers 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 and do the district court stated from the record that he was handcuffed in part to protect himself as well as the officers, and-

Thurgood M:

In order to protect himself?

Officers Lawyer:

That's the, the, uh, district court summarized the record, uh, as indicating that, that's correct. Now-

Thurgood M:

May I differ?

Officers Lawyer:

May you differ?

Thurgood M:

A different conclusion.

Officers Lawyer:

Um...

Gerald Beaver:

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 Kielty:

The court eventually puts out their opinion. It's written by the Chief Justice William Rehnquist. And in that opinion, Rehnquist says, uh, skipping down here a little bit, um, claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop or other, quote-un-quote, 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.

Jad Abumrad:

So they get their reasonable officer standard?

Matt Kielty:

They get it, and they get it unanimously.

Gerald Beaver:

Denying nothing opinion.

Jad Abumrad:

Whoa.

Woody Connette:

It was a breakthrough.

Matt Kielty:

I don't think it'd be a stretch to say, uh, that at the time, to a lot of people who were concerned about police brutality, uh, police using force, it felt like this was the beginning of a new era.

Woody Connette:

That favored plaintiffs and claimants.

Matt Kielty:

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 Kielty:

You don't have to get inside the officer's head. You don't have to prove they have bad intent. You just look at the case.

Gerald Beaver:

From the facts of the case.

Matt Kielty:

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, uh, 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 Kielty:

So, w- after winning did the case get kicked back down to the circuit, like what happens to Dethorne?

Woody Connette:

Um, after we won in the Supreme Court, the case went back to the trial court level for another trial.

Matt Kielty:

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 Kielty:

The facts were presented.

Woody Connette:

A bad insulin reaction, bottle of orange juice pulled him over.

Matt Kielty:

Unconscious.

Woody Connette:

Handcuffed.

Matt Kielty:

Physical altercation.

Woody Connette:

Broken foot.

Matt Kielty:

Lacerations wrists, bruised forehead.

Woody Connette:

Squad car, front yard.

Matt Kielty:

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

Woody Connette:

The case was given to the jury.

Matt Kielty:

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 Kielty:

Now, whether you think this is reasonable or not, the jury really focused in on the police officer's perspective. And from the officer's perspective, all they saw was a black man running in and out of convenience store. They thought he might be stealing something. They had no idea he was a diabetic and when the police picked him up-

Woody Connette:

He was a little bit out of control.

Matt Kielty:

... he's acting weird. He's running around the car-

Woody Connette:

Creating trouble.

Matt Kielty:

Not because he's a diabetic.

Woody Connette:

But he's a drunk.

Matt Kielty:

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

Dethorne G Jr.:

Excuse me, I'm so sorry.

Matt Kielty:

Oh, did, did that doorbell ring?

Dethorne G Jr.:

There goes the dogs again.

Matt Kielty:

Oh, the dogs. (laughs)

Matt Kielty:

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

Dethorne G Jr.:

Hey Brian, I'm just gonna open the garage up for this guy.

Matt Kielty:

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

Dethorne G Jr.:

Okay. I'm, I'm back, hopefully-

Matt Kielty:

All right, cool.

Dethorne G Jr.:

... we're, we're okay, now.

Matt Kielty:

Um, I, 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 G Jr.:

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

Matt Kielty:

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

Dethorne G Jr.:

He, he started making furniture in his spare time.

Matt Kielty:

Going to church a lot.

Dethorne G Jr.:

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

Matt Kielty:

That was after the Supreme Court case? After the-

Dethorne G Jr.:

That's correct. That's correct.

Dethorne G Jr.:

And so I, 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, uh, you know, y- when you are dehumanized like that, when, when another individual, whether they, it's, you know, it's, it's, it's kinda hard to explain that. But when, when someone who has authority just, it's, 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.

Matt Kielty:

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 Reporter:

Rumors growing outrage tonight after an unarmed African American teenager was shot and killed by police in the St. Louis suburb of Ferguson, Missouri.

Matt Kielty:

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

Dethorne G Jr.:

A reporter from CNN contacted me. And, uh, he talked about how, uh, they were going to use my dad's case during that trial.

Matt Kielty:

As a defense for the officer.

Dethorne G Jr.:

The CNN reporter informed me, said-

Matt Kielty:

Do you know about this?

Dethorne G Jr.:

No, I, I had no idea.

Gerald Beaver:

The grand jury deliberated over two days making their final decision.

Matt Kielty:

One of the questions posed to the jury was, did officer Darren Wilson act reasonably when he shot Michael Brown?

Gerald Beaver:

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 Kielty:

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

News Speaker:

I swear they think this a fucking joke.

News Speaker:

They killed her baby man.

News Speaker:

They won't hear back and Ferguson and I can't get nobody back.

News Speaker:

We're going to get justice. We're going to get justice.

Matt Kielty:

Later that same year-

News Reporter:

The 12 year old boy shot and killed by two officers while holding a pellet gun.

Matt Kielty:

... Tamir Rice.

Juror:

We were instructed to ask what a reasonable police officer would do in this particular situation.

Matt Kielty:

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

Crowd:

[inaudible 00:32:55]

Matt Kielty:

Eric Garner.

News Reporter:

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 Kielty:

His death was reasonable. John Crawford-

News Reporter:

22 year old black man killed last month-

Matt Kielty:

... reasonable.

News Reporter:

Carrying around a BB gun.

News Reporter:

After a judge declared a mistrial today-

Matt Kielty:

Samuel DuBose-

News Reporter:

In the case of a white police officer who killed an unarmed black man-

Matt Kielty:

... reasonable.

News Reporter:

With Sterling on his back.

Matt Kielty:

Alton Sterling-

News Reporter:

One officer pulls his gun.

Matt Kielty:

... reasonable.

News Reporter:

Sterling laid dying on the streets.

Matt Kielty:

Terence Crutcher-

News Reporter:

An unarmed black man-

Matt Kielty:

... reasonable.

News Reporter:

... shot and killed by police in Oklahoma. Charlotte Police have-

Matt Kielty:

Keith Lamont Scott, Jamar Clark-

News Speaker:

This city kill my son.

Matt Kielty:

Philando Castile, reasonable.

News Speaker:

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 Kielty:

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

Kelly Prime:

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

Jad Abumrad:

After the break we'll ask, how did that happen? And we'll watch it happen. More Perfect will continue in a moment. Radiolab will continue in a moment.

Christopher:

This is Christopher calling from South Florida. 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 Sloan at www.sloan.org.

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Jad Abumrad:

This is More Perfect. I'm Jad Abumrad. We're featuring More Perfect on Radiolab today. Uh, and let me just say a few words for context. Police officers have dangerous jobs. I think we can all agree. And on occasion they do have to use force and we should say that the majority of the people who are killed by police every year are white.

Jad Abumrad:

But if you look at the number of black people who are killed, and you balance that against the fact that black people only make up about 12% of the overall population, what you end up with is that an unarmed black man is roughly about seven times more likely to be, uh, killed by police than an unarmed white man. That's according to one study.

Jad Abumrad:

Now these numbers are very disputed and argued about, but what is clear is most police officers who use deadly force are never charged. And e- even smaller percentage serve jail time. So Matt.

Matt Kielty:

Yes.

Jad Abumrad:

Matt Kielty. Let me just ask you, like all the cases we heard about before the break, that litany of cases from the past few years, in every single one of those, the jury was asked, did this officer behave like a reasonable officer should. And in every single one the jury said yes?

Matt Kielty:

Yeah, yeah.

Jad Abumrad:

Why?

Matt Kielty:

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

Kelly Prime:

Yeah. And actually like, um, 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 case.

Matt Kielty:

Oh sweet, you want to just read those?

Kelly Prime:

Yeah, yeah, yeah. And so-

Matt Kielty:

This is what the jury, the jurors are actually told, this is your job?

Kelly Prime:

Yeah, exactly.

Matt Kielty:

Just to back ID, primetime Kelly Prime.

Kelly Prime:

Yeah.

Jad Abumrad:

(laughs)

Kelly Prime:

So it says, "Under the Fourth Amendment, a police officer may use only such force as is objectively reasonable. Uh, 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 Kielty:

Those, those are, um, a couple really crucial phrases, which is perspective of, uh, 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 the world through their eyes. And, and that's how you have to understand these things.

Kelly Prime:

Right.

Jad Abumrad:

And where did that, where does, where did that idea come from?

Matt Kielty:

So that comes from Graham, like, that comes from, uh, the Chief Justice, uh, William Rehnquist's, uh, 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, that police officers are often forced to make split second decisions about the amount of force necessary in a particular situation.

Matt Kielty:

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, in general during a moment where, um, where they have to use force. Instead, what it's asking is what would a reasonable officer do in this split second, in this little tiniest sliver of time where, where the force actually occurred. And in fact, that moment legally has come to be known, um, as a superseding event.

Jad Abumrad:

Meaning what? What does that mean?

Matt Kielty:

Um, meaning it, this is, I find this kind of crazy, uh, meaning that, that, that moment, that superseding event, it, it essentially, it breaks the chain of causation. So if, 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 Abumrad:

That's all that they can think about? The jurors.

Matt Kielty:

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, um, and hoped would, would help victims of police violence does the exact opposite.

Kelly McEvers:

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

Matt Kielty:

They just think of it like as a shield?

Kelly McEvers:

Yeah.

Matt Kielty:

Okay. So this is NPR reporter-

Kelly McEvers:

Kelly McEvers, um, host of Embedded podcast and All Things Considered.

Matt Kielty:

So Kelly's actually, uh, she's covered police shootings for the past, like, year for NPR. And we've sorta been comparing notes with her as we've been producing our story. And a little while back, uh, 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.

Jim Glennon:

Let's go!

Kelly McEvers:

Okay. So I went to Cleveland.

Jim Glennon:

All right all you hungover cops, let's get this shit started.

Kelly McEvers:

For this two day training course called street survival.

Matt Kielty:

It was in a hotel ballroom.

Kelly McEvers:

One of those hotel ballrooms where you have like a big conference. And-

Matt Kielty:

How many people, do you remember?

Kelly McEvers:

Um, there was somewhere just under 200. Um, cops. Lots of really jacked dudes with tats.

Matt Kielty:

Mostly white.

Kelly McEvers:

There were some sergeants some lieutenants.

Matt Kielty:

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 Abumrad:

Did you get, like, angry stares?

Kelly McEvers:

I mean, in the beginning there's just like a lot of side eye.

Jim Glennon:

Nice, nice. Good morning Cleveland. How's everybody doing?

Crowd:

Good. Good.

Jim Glennon:

How many of you have been to a Calibre Press seminar before? Please show 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 Kielty:

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 Kielty:

Classes that are aimed at police departments. Uh, they offer 'em all across the country. In this particular one-

Jim Glennon:

Oh, we're going to talk a lot about stress, survival instincts.

Kelly McEvers:

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

Jim Glennon:

I mentioned heart attacks, emotional health, suicide.

Kelly McEvers:

You know, how to basically do this job and-

Jim Glennon:

It's really about 24/7 survival.

Kelly McEvers:

... and live.

Jim Glennon:

Living and lasting a 25, 30 year career.

Kelly McEvers:

They talk a lot about self care.

Jim Glennon:

And what do you eat?

Kelly McEvers:

About sleep and exercise.

Jim Glennon:

My, my wife and I talked about this, if, if I start getting crabby or is there 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 Abumrad:

Wow.

Kelly McEvers:

... there's times when it's this really touchy feely kind of thing.

Officer:

I just started getting overwhelmed. I didn't know what was happening with me.

Kelly McEvers:

There was even a moment she says when an officer got up, uh, talked about contemplating suicide.

Officer:

My wife kept on telling me I needed to get help. I started secluding myself. I started alienating myself, fucking hating everybody.

Kelly McEvers:

Everyone was, like, crying. So, I mean, it's a really intense couple of days.

Matt Kielty:

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-

Jim Glennon:

All right, let's talk about the-

Matt Kielty:

... is devoted to Graham.

Jim Glennon:

... about Graham versus Connor and the, us actually using force.

Matt Kielty:

About teaching these cops how to understand Graham and, and how it impacts their lives. Um, and by the way, this is the instructor, the, like, Graham instructor, his name is Jim Glennon.

Kelly McEvers:

He himself was a cop for years and years and years.

Jim Glennon:

I was in charge of Houston force for 18 years-

Kelly McEvers:

Was a lieutenant outside of Chicago.

Jim Glennon:

And, I tell you, we talked about Graham versus Connor and our, our use of force, uh, 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 versus Connor based on this video.

Matt Kielty:

So... fired up the projector.

Jim Glennon:

Come on.

Kelly McEvers:

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

Jim Glennon:

Like this one.

News Reporter:

Video of a Fresno police-

Kelly McEvers:

September 2015, a guy named Freddy Centeno.

News Reporter:

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 Kielty:

Get out of their car. They're just like 20 feet away from Centeno, who's walking towards them on the sidewalk.

Fresno PD:

Hey Fresno PD.

Fresno PD:

Get on the ground.

Fresno PD:

Get on the ground.

Fresno PD:

Get on the ground.

Kelly McEvers:

10 shots, seven of them hit.

Jim Glennon:

The seat was with 47 brand long. That translated to about 1.566 seconds.

Kelly McEvers:

Jim's claims it happens in 1.566 seconds.

News Reporter:

40 year old, mentally disabled man is hit seven times and dies in the hospital 23 days later.

Matt Kielty:

And in one of these news clips that Jim shows, the lawyer for Freddy Centeno's family is basically just like-

Lawyer:

This is a, a, you know, a bad shooting. It's, it's an atrocity.

Matt Kielty:

Like, this was an atrocity. Nothing about this use of force should be considered reasonable because the cops in this situation, they rolled right up on Freddie Centeno. They didn't create any space, they didn't give Freddy Centeno any time.

Lawyer:

They tell him, "Get on the ground." He didn't have a chance to get on the ground. One second before he began to fire.

News Reporter:

In Gisar's view, the video shows the officers did not give Centeno a chance to respond to their commands.

Matt Kielty:

So Jim plays all these reaction clips.

Kelly McEvers:

And then...

Jim Glennon:

Here's what happens. It's real quick.

Matt Kielty:

He plays the original body cam video again.

Fresno PD:

Hey, Fresno PD.

Matt Kielty:

You see Freddie Centeno-

Kelly McEvers:

They tell him to get on the ground. He doesn't.

Matt Kielty:

... and then Jim slows the video down.

Fresno PD:

Get on the ground.

Matt Kielty:

And when he does, you can see Centeno's right hand.

Kelly McEvers:

Reaches into his pocket.

Fresno PD:

Get on the ground.

Matt Kielty:

Jim pauses and he's, like, "Take a look at this, right here."

Jim Glennon:

This.

Matt Kielty:

And up on the screen, Jim has this frozen moment where you can see that Freddy Centeno's hand has started to move.

Jim Glennon:

The movement of the hand a couple of inches.

Matt Kielty:

Just starting to come up out of his pocket.

Kelly McEvers:

This moment from the pocket to the out of the pocket.

Matt Kielty:

This, to Jim, was the moment.

Jim Glennon:

The moment. Remember that word.

Matt Kielty:

Jim's like, this is the only moment that matters. Like forget what happened before. Forget that the officer's rolled right up on Centeno. Forget that they weren't giving a 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?

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 even without ou- outside information.

Kelly McEvers:

Turns out he had a, a nozzle from a garden hose.

Jim Glennon:

What was the call? [inaudible 00:46:10] 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 Kielty:

And so-

Jim Glennon:

Does this work under Graham? Yeah. It, it, it's sad. Yeah, but yes.

Kelly McEvers:

Yes.

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?

Jim Glennon:

At the moment you use force-

Kelly McEvers:

In that moment.

Jim Glennon:

... what did you know? Not what you could have known, not what you should have known. What did you know, what was going on? Look what it says up there.

Kelly McEvers:

He talks about Rehnquist and the decision. He's like, what Rehnquist said is-

Jim Glennon:

Allowance must be made for the fact that 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.

Jim Glennon:

This is a Albuquerque case.

Matt Kielty:

Jim plays another example. Uh, this one of a guy-

Albuquerque PD:

Drop the gun!

Matt Kielty:

A white guy, a police officers shot because they thought he had a gun.

Jim Glennon:

Guy did not have a gun.

Matt Kielty:

Got a knife, but the cops had gotten a call that he had a gun and in this split second he raised his arm like he was raising a gun up. And so the cop shot him.

Jim Glennon:

Does this work under Graham? Yeah.

Matt Kielty:

Another one.

Jim Glennon:

I talked to this officer. He, uh, gets a call to a, uh, domestic.

Matt Kielty:

Showed another video of a police officers shooting an unarmed white man in the head. And again, he walked through it beat by beat.

Jim Glennon:

With Graham, you gotta put yourself in that officer's position, right?

Matt Kielty:

Said you gotta 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:

Um, yeah, so...

Matt Kielty:

Kelly actually told us, uh, a story that she recorded for her podcast Embedded that actually gets at some of this stuff.

Kelly McEvers:

In this particular case-

Matt Kielty:

Who, who was Jonathan Ferrell and what happened?

Kelly McEvers:

Jonathan Ferrell, um, was a football player. He's from Florida.

Matt Kielty:

Is he a big dude?

Kelly McEvers:

Yes.

Matt Kielty:

Okay.

Kelly McEvers:

He looks like a football player.

Matt Kielty:

So this was September of 2013. Jonathan Ferrell is living in Charlotte, North Carolina. He's a black man, 24 years old.

Kelly McEvers:

And...

Matt Kielty:

One night-

Kelly McEvers:

It was a Friday night, he goes out with some friends, goes out to a bar.

Matt Kielty:

He has a couple drinks, makes his way home.

Kelly McEvers:

You know, we don't exactly know what happened.

Matt Kielty:

But while Jonathan Ferrell was making his way back home at some point-

Kelly McEvers:

His car was-

Matt Kielty:

... he lost control of, uh, his car, crashed into the woods off this road in suburban Charlotte.

Kelly McEvers:

He didn't have his phone-

Matt Kielty:

But he's in, like, this little suburban neighborhood. So he gets out of his car.

Kelly McEvers:

Goes up to the house of this woman, is knocking on her door.

Matt Kielty:

The woman inside, she's a white woman, new mom.

Kelly McEvers:

She comes to the door thinking it's her husband who works nights. So she just comes to the door and she's like about to let him in and then she's like, whoa, wait a second, who is this person?

Matt Kielty:

Apparently she opens the doors, sees Jonathan Ferrell and quickly closes it.

911 Dispatcher:

9-1-1, Hello?

Kelly McEvers:

So she calls 9-1-1.

Woman:

I need help.

911 Dispatcher:

What's going on there?

Woman:

There's a guy breaking in my front door.

911 Dispatcher:

There's a guy breaking in your front door?

Woman:

Yeah, he's trying to kick it down.

Matt Kielty:

The woman tells the dispatcher that she doesn't know who the guy is.

911 Dispatcher:

You said he's a black male?

Woman:

Yes.

911 Dispatcher:

Okay. [inaudible 00:49:44]

Kelly McEvers:

Her alarm system's going off.

911 Dispatcher:

All right. Okay. I'm right here.

Kelly McEvers:

And you can hear Jonathan Ferrell screaming, "Turn off the alarm. Turn off the alarm," in the background. And you can hear him in the 911 tape. You can, like, hear him banging on the door.

911 Dispatcher:

Where's he at now?

Woman:

He's still there yelling. Oh my God.

911 Dispatcher:

Do you have your baby with you?

Woman:

No, he's in bed. I don't know what to do.

911 Dispatcher:

It's okay, I'm right here. Police are on their way, okay?

Matt Kielty:

Now, we don't know why Jonathan Ferrell was banging on the door, but very possible, very likely it was just because he wrecked his car and needed some help. So three officers get called to the scene.

Kelly McEvers:

Thinking that they are going to the scene of a breaking and entering.

Matt Kielty:

There's a dash cam video from the squad card when the officers.

Kelly McEvers:

They've gotten a description. It's an African American man with a green shirt and light pants.

Matt Kielty:

So this officer is driving down this road, driving, driving, driving, and until finally-

Kelly McEvers:

You see an African American man with a green shirt and light pants walking on the side of the road.

Matt Kielty:

He's walking towards the squad cars.

Kelly McEvers:

You see the red light of a taser on his chest. And then-

Randall Kerrick:

Get on the ground.

Matt Kielty:

Ferrell just, like, takes off. One of the officers is yelling at him to get on the ground.

Randall Kerrick:

Get on the ground.

Matt Kielty:

But Ferrell keeps running.

Kelly McEvers:

Runs off camera.

Randall Kerrick:

Get on the ground.

Matt Kielty:

Can't see what happens next, but then... One of the officer's fires 12 shots, 10 of them strike Jonathan Ferrell, he falls to the ground.

Randall Kerrick:

[inaudible 00:51:07] Shots fired. Shots fired. Don't move. Don't move.

Kelly McEvers:

And he dies.

Matt Kielty:

The facts of this case are that, here's a guy who was unarmed, who did nothing wrong, and then he was killed, like, plain and simple. If you, if you ask was that reasonable? Well, on some basic level, no, it was not reasonable. This man should not have died. But in the trial, this case did go to a trial, a jury trial, the jury was instructed, forget everything but that moment of force. Like, no 20/20 hindsight, look at just the superseding moment and then ask the question again. Was it reasonable for the officer to pull the trigger, i.e. was it reasonable for that officer to be afraid?

Matt Kielty:

And the officer who shot and killed Jonathan Ferrell, who was facing charges, his name was Randall Kerrick, he was being tried for voluntary manslaughter.

Randall Kerrick:

The suspect began aggressively coming towards me.

Matt Kielty:

And during the course of this trial, officer Kerrick took the stand.

Lawyer:

And could you tell the jury about what pace he was coming at you?

Randall Kerrick:

At first, it was a pretty rapid pace, more, more of a, a fast walk. I gave loud verbal commands for him to stop and get on the ground.

Lawyer:

How loud were your verbal commands?

Randall Kerrick:

Very loud.

Lawyer:

Tell us, show the jury how loud you are yelling to the suspect and what you were yelling to the suspect.

Randall Kerrick:

Get on the ground. Get on the ground. Get on the ground.

Kelly McEvers:

So, he says he was running at him, and this is a huge question. Was he running at him or was he running away from him?

Matt Kielty:

Like trying to run past him, by him.

Kelly McEvers:

Yeah, like, if you sort of diagram the whole thing out, the way the cop cars were parked, the way Kerrick was standing, it is possible that Jonathan Ferrell was trying to just, sort of, run between them all.

Matt Kielty:

That's what the prosecution was saying. The defense was like, no, no, no, no. He was running at the cops.

Lawyer:

Did the suspect say anything to you?

Randall Kerrick:

No sir.

Lawyer:

What did you interpret his body language to mean?

Randall Kerrick:

He was going to attack me. He was going to assault me. He was gonna take my gun from me.

Lawyer:

Did you have time to holster your weapon?

Randall Kerrick:

No sir. And here I was, s- suspect matched the description and he just ran through a taser, which, at the time I thought was, had, had worked. I thought the taser had struck and made contact and I had absolutely no idea if he had a weapon on him or not.

Lawyer:

And was he ever, st- was the suspect ever still?

Randall Kerrick:

No sir.

Lawyer:

Did he continue to advance on you?

Randall Kerrick:

Yes sir. No matter what I did, he wouldn't stop. I wasn't sure how many rounds I had fired. None of them affected him in any w-, any way. I didn't think my gun was working. I thought I was going to die cause nothing I would do would stop him.

Lawyer:

What was the reason that you continued to fire your weapon?

Randall Kerrick:

Because he wouldn't stop. He kept trying to get to my gun.

Matt Kielty:

To boil it down, the question was, was it reasonable for Officer Kerrick to feel afraid? And, after 11 days of testimony, the question was put to the jury.

Bruce Raffe:

There were six opinions one way, there were six another.

Kelly McEvers:

When they first go into the jury room, it was six to six.

Matt Kielty:

On one side-

Kelly McEvers:

... a white guy named Bruce Raffe.

Bruce Raffe:

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

Kelly McEvers:

And he's sort of the leading the charge on the we have to acquit Kerrick side.

Matt Kielty:

He felt that Officer Kerrick had every right to be afraid, and he told Kelly that Jonathan Ferrell, the guy who Kerrick shot-

Kelly McEvers:

So what Bruce Raffe's saying to me like, you know, he was a young man-

Bruce Raffe:

Distraught, disheveled, confused, angry, if, if you will.

Kelly McEvers:

... he made a very aggressive move.

Bruce Raffe:

... towards these police officers after disobeying commands. You have many choices in this video. And it was clear from the very first time I viewed it. Stop, sit down, put your hands up, do any of those things other than what you chose to do, which was to charge the, Officer Kerrick. And so th- there's no other way around what I saw, an- and I kept coming back to that.

Kelly McEvers:

And this is exactly how the defense painted it, right? This case is not about race. This case is about choices. And that stuck in Bruce Raffe's mind so that when he was asked, was it reasonable for Kerrick to shoot him? It's like, well yeah, cause Jonathan Ferrell made all these bad choices.

Moses Wilson:

This is an old trick from, from, from, uh, defense attorneys.

Matt Kielty:

This is another one of the jurors that Kelly spoke to.

Kelly McEvers:

Named Moses Wilson.

Matt Kielty:

An African American man.

Moses Wilson:

He wasn't supposed to be here. He might've had a few drinks where he was. The police responded to what he caused. This was early in the morning. This was far from where he lived. This was this, this was that, which caused me, at the end to write on the board, just what did he do to deserve to be shot so many times? I, it's no-

Kelly McEvers:

In the jury room?

Moses Wilson:

In the jury room. I wrote this on the board. What did he do?

Matt Kielty:

Well, so what happens with the jury?

Kelly McEvers:

It splits.

Matt Kielty:

I mentioned the tally is eight to acquit, four to convict.

Kelly McEvers:

Eight jurors, most of them wight, side with acquitting Kerrick. And four jurors, most of them people of color-

Matt Kielty:

... side with convicting Kerrick.

News Reporter:

Breaking news. In the trial of officer Randall Kerrick, the judge has just declared a mistrial. This after the-

Matt Kielty:

In 2015, the city of Charlotte settled a lawsuit with Jonathan Ferrell's family for $2.25 million. Later that same year, Officer Kerrick resigned from the Charlotte Police Department. The city paid out $179,989.59. The money was for back pay, Kerrick's Social Security and retirement and an attorney that represented him in a separate civil suit.

Kelly McEvers:

Yeah.

Matt Kielty:

There's something interesting about listening to Moses talk.

Moses Wilson:

Just what did he do to deserve to be shot so many times?

Matt Kielty:

Because, I don't, it feels like this, um, Fourth Amendment reasonableness standard, this reasonable officer standard. Like, what, from what I understand is, is that it was an attempt to really kind of look at these situations, these shootings-

Kelly McEvers:

Mm-hmm (affirmative).

Matt Kielty:

... these uses of force cases through this sort of objective lens where you're just looking at all the facts-

Kelly McEvers:

Right.

Matt Kielty:

... on the ground.

Kelly McEvers:

Uh-huh (affirmative).

Matt Kielty:

Um, and yet the cases don't seem to be tied to, like, any sort of objectivity.

Kelly McEvers:

Yeah.

Matt Kielty:

And there's something about l- hearing Moses where you're, like, oh, that's actually like, that feels like a pure sort of objectivity. Like what, what did, what had this guy done? He hadn't actually done anything.

Kelly McEvers:

Yeah.

Matt Kielty:

He ran at somebody, maybe.

Kelly McEvers:

Uh-huh (affirmative).

Matt Kielty:

But that was it.

Kelly McEvers:

And, like this is the thing, like, if you're white, are you more likely to say, yes, that was reasonable, because he's white and he was afraid of a black man?

Matt Kielty:

Right.

Kelly McEvers:

Like that is the question.

Matt Kielty:

I don't know, given the history of our country, I'd say in many cases, that's not even a question. Right? But I guess the question I'm actually left with is, if this is where the reasonableness standard has led us, is there another standard?

Woody Connette:

I think that's right.

Matt Kielty:

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

Woody Connette:

Um, 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... I would, I would suggest a whole more radical standard then.

Jad Abumrad:

This is Elie Mystal, More Perfect's legal editor. Uh, we ended up talking with him about this, uh, shortly after the Philando Castile verdict came out. So he was, uh, 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 Abumrad:

What does that mean? Like i- from a, in a, in the scenario of a police person wh- who's, does that mean like, I need to be right-

Elie Mystal:

So if you-

Jad Abumrad:

... that you don't have a toy gun?

Elie Mystal:

Yeah.

Jad Abumrad:

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

Jad Abumrad:

But then a police person is gonna, just gonna argue that like-

Elie Mystal:

Sure.

Jad Abumrad:

... you don't understand the pressures that I'm under-

Elie Mystal:

Sure.

Jad Abumrad:

... it's a split second decision-

Elie Mystal:

Sure.

Jad Abumrad:

... Monday morning quarterbacking.

Elie Mystal:

Sure.

Jad Abumrad:

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

Elie Mystal:

And I would say f- you police officer, I'm sick of you. I would say screw you. You have had your chance, you have had your chance to police my community without murdering us and you have failed for 300 years. Enough. That's what I would say to that. More people might get hurt if I wasn't, I'm willing to risk that. I'm willing to try it that way, then.

Jad Abumrad:

Gotcha.

Elie Mystal:

I'm, I would rather, I'd rather 10 illegal shoplifting people go free than one illegal shoplifting person gets shot in the street like an animal.

Jad Abumrad:

Gotcha.

Elie Mystal:

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

Matt Kielty:

Now, that is, as Elie said, radical and probably not realistic given that most Americans, according to polls, uh, 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 Abumrad:

What do you mean?

Matt Kielty:

Okay, so you know how, um, Chief Justice Rehnquist, when he wrote the decision in '89, he put in, uh, all these phrases that took the idea of a reasonable officer and, and constrained it, so-

Jad Abumrad:

Right, right.

Matt Kielty:

... uh, these were like, um, it's constrained only to this little moment in time. It's constrained to the perspective of the officers-

Jad Abumrad:

Right.

Matt Kielty:

... uh, constrained that there's no 20/20 hindsight, all of that stuff. Well in the decision, he also, he slipped in this other phrase. Uh, he was actually calling back to an earlier decision and what he wrote was, um, the question is whether the totality of circumstances justifies a particular sort of seizure.

Jad Abumrad:

The totality of circumstances.

Matt Kielty:

Totality of circumstances. Which, you know, it seems to be at odds with all of the other stuff.

Jad Abumrad:

Right. Which is all about, like, little slivers and moments and things.

Matt Kielty:

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 Abumrad:

So he had both, both ideas in there at once.

Matt Kielty:

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 that totality of circumstances means is that you look at everything to answer the question, was the officer scared?

Matt Kielty:

You look at everything that the officer would have known, everything the officer would have seen, perceived and then you ask, okay, knowing all that, was it reasonable for the officer to be scared in the moment? The other half of the circuits say, no, no, no. Totality of circumstances isn't just about what the officer knew, what the officers 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, a search warrant? Did the officer tried to deescalate the situation before, uh, using force? Did the officer tried 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.

Matt Kielty:

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, 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.

Matt Kielty:

Did what happened to your dad affect how you thought of police? How you thought of police at being, being a black man?

Dethorne G Jr.:

Well, you know, believe it or not, uh, it didn't. Uh...

Matt Kielty:

Hmm. Why is that?

Dethorne G Jr.:

I like to base my opinions based on my own experiences. My dad, I, I can say this Kelly and Matt, I can remember my dad telling me stories of where he grew up in Eastern North Carolina, owned a tobacco farm in that small town. I can remember him telling me a story of a black man who had been accused of, uh, being inappropriate with a white woman and how the whites got him in broad daylight and castrated him in broad daylight.

Matt Kielty:

Wow.

Dethorne G Jr.:

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

Matt Kielty:

Huh.

Dethorne G Jr.:

And that's the God's honest truth without a, but, in being completely honest, when I see on the news, like, the kid and the 12 year old and, uh, that had the BB gun. Um-

Matt Kielty:

Oh, Tamir Rice.

Dethorne G Jr.:

Yeah, yeah. Like, you know, y- examples like this, that, that, that does affect me and that does make me want-

Matt Kielty:

Does that make you think of your own children? Have you talked to your own kids about-

Dethorne G Jr.:

Of course, I've got a- Of course, I've got a 12 year old at home. He's got BB guns that look just like real guns.

Matt Kielty:

Uh-huh (affirmative).

Dethorne G Jr.:

And you know, but he, he knows that, hey, they don't leave the house.

Matt Kielty:

What's your, what's your 12 year olds name?

Dethorne G Jr.:

Uh, my son's name is Tanner.

Matt Kielty:

Tanner.

Dethorne G Jr.:

Yes.

Matt Kielty:

And when you, when you talk to Tanner about the fact that, like, the BB gun doesn't leave the house. I mean, what is that conversation?

Dethorne G Jr.:

Like with the Tamir Rice, when he was shot and killed, when the news story came on, I paused it and, cause you know you can do that with live TV now, say come here, I, I want you to watch this right now. Tanner is 12 years old. He's cute, he's this, he's that. But the fact of the matter is, in a few s-, few short years, he would be considered a black man. Unfortunately, he's going to have a, a target on himself. So, hey, so those BB guns you got. See, this is why you can't take these out of the house. I don't want you to take these out of the house. Even if you're outside in New York playing and a police should happen to come down the road. Hey, drop it, drop it immediately.

Jad Abumrad:

This story was produced and reported by Matt Kielty with a big assist from co-producer Kelly Prime.

Compilation:

Whether objective, reasonable behavior along with a unreasonable crime was enough. They have to know. They have to know people worse. Do you think that would be reasonable execution of the law? Objectively unreasonable. Whether objectively unreasonable behavior alone is enough? It's saying how would of a reasonable person have felt. Why does that make it an unreasonable search and seizure. Reasonableness. Because if you just burst in, uh, that person may reasonably think this is a burglar. One's unreasonable. That is on what would a reasonable person believe? Objective. Unreasonable behavior.

Jad Abumrad:

Definitely check out the other More Perfect episodes. There are many more at radiolab.org/moreperfect or search for More Perfect wherever you get your podcasts. Definitely check it out. Spread the word. More Perfect is produced by me, Jad Abumrad, Suzie Lechtenberg, Jenny Lawton, Julia Longoria, and Kelly Prime.

Kelly Prime:

Alex Overington and Sarah Qari, with Elie Mystal, Christian Farias, Linda Hershman, David Gable, and Michelle Harris. We had production support this week from Derek Dawn and Dylan Keefe. Thanks to Kelly McEvers and Tom Dreisbach from NPR's Embedded, Ben Montgomery at the Tampa Bay Times, Frank Aycock, Leonard Feldman, Cynthia Lee, and Joshua Rosenkranz. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. Leadership support for More Perfect is provided by the Joyce Foundation. Additional funding is provided by the Charles Evans Hughes Memorial Foundation.

Compilation:

... an unreasonable search and seizure. Do you think that would be reasonable?

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