Mr. Graham and the Reasonable Man
[MORE PERFECT INTRO]
JAD ABUMRAD: Before we get going, just a quick warning this podcast contains some descriptions of graphic violence and also some strong language. So be warned.
MATT KIELTY: So nice to see you again, Jad.
JAD: Why did you say that with some venom? What was that all about?
MATT: Just you’ve been away for a while.
MATT: The only way I can see you is when I come visit you with your other family.
JAD: Okay, so this is Radiolab producer Matt Kielty.
JAD: We’re talking about -- what are we talking about?
MATT: We’re talking about a Supreme Court case from 1989.
JAD: And today, Matt has a story that he’s been reporting for about two years that we are going to play both here on More Perfect and also here on Radiolab.
MATT: So buckle up.
JAD: Where -- where should we start?
MATT: I think we might as well just start ...
WOODY CONNETTE: Should I try to sound Southern?
MATT: With a guy named Woody Connette.
WOODY CONNETTE: I’m a lawyer with Essex Richards, a law firm in Charlotte, North Carolina.
MATT: We’ll pick it up in 1985.
WOODY CONNETTE: Back in 1985, I was a very young lawyer. I was 32 years old, I just started my own law firm, and I was taking about anything that came through the door.
MATT: And one day, says Woody, this guy walked in.
WOODY CONNETTE: Late-30s, fairly thin.
MATT: Five foot nine, five foot ten.
WOODY CONNETTE: On crutches.
MATT: And he’s -- he’s a Black man.
WOODY CONNETTE: He is. Or was. He’s passed away, Mr. Graham.
MATT: The man’s name was Dethorne Graham, and Woody says, "Well, like, what happened to your leg? What’s with the crutches?" And Dethorne lays everything out for him.
WOODY CONNETTE: Here we go. So he was pulled over on West Boulevard in Charlotte, which is a four-lane road.
MATT: Dethorne told Woody he worked for the city of Charlotte in the Department of Transportation.
WOODY CONNETTE: On road crews doing road repairs.
MATT: It was a Monday afternoon, and on that day one of Dethorne’s friends, a co-worker stopped by his place.
WOODY CONNETTE: And ...
MATT: After talking for a bit ...
WOODY CONNETTE: Mr. Graham asked to be taken to a nearby convenience store that was only two or three blocks from his house. He needed some orange juice because he was suffering the onset of a diabetic insulin reaction.
MATT: So Dethorne hopped in his friend’s car. They drove over to this convenience store. Dethorne got out.
WOODY CONNETTE: Got a bottle of orange juice.
MATT: Got to the checkout counter.
WOODY CONNETTE: But there’s a line there, so he puts the bottle down and hurries out.
MATT: Gets back in his friend’s car.
WOODY CONNETTE: They take off. Now this is where the problems started.
MATT: Turns out at the same time all that’s happening, there’s actually an officer ...
WOODY CONNETTE: Who was African American.
MATT: Sitting in his squad car.
WOODY CONNETTE: And what that officer observed was a man hurrying out of a store, jumping into a waiting car and quickly driving off.
MATT: So, he starts to tail Dethorne and his friend.
WOODY CONNETTE: And after a couple of blocks, pulled him over just to determine what was going on there.
MATT: So he goes up to the driver’s side, presumably gets Dethorne’s buddy’s driver’s license, goes back to this squad car, starts radioing to get ahold of the convenience store to see if anything had happened. And it’s right around that moment that Dethorne, who’s in the passenger seat of the car suddenly opened his door, got out of the car ...
WOODY CONNETTE: Circled the car once or twice.
MATT: Like, sort of stumbled around it.
WOODY CONNETTE: Then he sat down on the curb.
MATT: And he started going into shock.
DETHORNE GRAHAM JR.: Almost like a seizure he would have.
MATT: Oh, really?
DETHORNE GRAHAM JR.: Yeah, and it was terrifying.
MATT: This is Dethorne Graham, Jr.
DETHORNE GRAHAM JR.: He was a Type 1 diabetic.
MATT: What is Type 1 diabetes? Because I know it’s 1 and 2.
DETHORNE GRAHAM JR.: From what I understand the Type 1 diabetes, it’s when your body just doesn’t produce enough insulin.
MATT: And what would that seizure look like?
DETHORNE GRAHAM JR.: Well, one incident in particular, I can remember us being in church and he got, like, this blank stare on his face, and you could see the beads of sweat come on his forehead. His body would seize up and he would shake and he would bite his tongue up. And ...
DETHORNE GRAHAM JR.: So I can remember my mother trying to, you know, force a spoon into his mouth to keep him from biting his tongue up, and the main thing was try to get some orange juice in him, that way it would raise his blood sugar. And once you got the orange juice in him he’d sleep for a couple of hours, and he’d wake up and he’d be exhausted but he’d be alive.
MATT: All right. So Charlotte city street.
WOODY CONNETTE: At this point, four other officers arrived.
MATT: Dethorne has actually passed out on the curb.
WOODY CONNETTE: One of the officers rolled Mr. Graham over on the sidewalk and cuffed his hands behind his back.
MATT: At one point, one of the officers grabs Dethorne by the handcuffs and picks him up off the curb from -- from behind.
JAD: Oh, wow.
MATT: Dethorne was sort of in and out at this point, I guess. He tries to tell the officers ...
WOODY CONNETTE: That he was a diabetic, that he had a medical card in his wallet. Asked the officer to pull the wallet out of his back pocket. And one of the officers said, "Ain’t nothing wrong with the motherfucker but he’s drunk."
MATT: At some point around here -- the details are a little unclear.
WOODY CONNETTE: A pretty nasty scuffle ensued.
MATT: According to what is known as case syllabus, Dethorne was resisting the officers and apparently one of the officers slammed Dethorne’s head into his friend’s car. He suffered head and shoulder injuries. He also ended up with a broken foot, cuts around his wrist. And eventually the officers pick him up, one on each arm, one on each leg, and just throw him into the back of a squad car.
WOODY CONNETTE: While this was going on, a few people gathered around.
MATT: And not long after that ...
WOODY CONNETTE: The officers learned that nothing at all had happened at the convenience store. There was no crime, there was no robbery, there was no shoplifting.
MATT: So they drove him back to his house still in handcuffs.
WOODY CONNETTE: Pulled him out of the car.
MATT: A friend at Dethorne’s house got him some OJ.
WOODY CONNETTE: And the officers laid him out in his front yard, took the handcuffs off and then just drove away.
MATT: Huh. Was there an apology?
WOODY CONNETTE: Oh, no.
MATT: Now what came out of that day in Charlotte would end up becoming one of the most important Supreme Court cases in our history when it comes to policing. And what drew me in about this case is how something like ...
WOODY CONNETTE: He needed some orange juice.
MATT: ... that. Something so seemingly small would eventually become tied to ...
[ARCHIVE CLIP, protesters: Hands up! Don’t shoot!]
MATT: ... this. And all of the shootings we’ve seen in the past few years, mostly of young Black men. Every time we hear one of these shootings, every time there is an outcry, every time the cop gets off, this incident is looming in the shadows, shaping the outcome. In many ways, it has quietly defined the era that we’re living in and I wanted to know how. How did that happen?
[MORE PERFECT INTRO]
MATT: All right. To wind back the clock a little bit ...
DETHORNE GRAHAM JR.: I will say this about my dad now, he wasn't someone that would -- would just lay down and roll over.
MATT: 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 GRAHAM JR.: Eastern North Carolina, on a tobacco farm.
MATT: He was a hard worker, good student.
DETHORNE GRAHAM JR.: His sisters told me that he was the first Black or African American accepted to Duke University.
DETHORNE GRAHAM JR.: But my grandmother, she wouldn’t let him go because of, you know, during the civil rights era, that she didn’t want him to have to experience all that -- all that mess.
[NEWS CLIP: This is a CBS News Special Report.]
MATT: 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 CLIP: Last night, there was open war.]
MATT: In 1965, you had the infamous Watts riots in Los Angeles.
[NEWS CLIP: Snipers make the states a battlefield.]
MATT: Also what was known as the long, hot summer of 1967.
[ARCHIVE CLIP, protester: Are we going to die for our freedom?]
MATT: Where there were more than 150 race riots across the country.
[ARCHIVE CLIP, protester: Just getting tired of being pushed around by you white people, that’s all.]
MATT: A lot of which were sparked by accusations of police brutality.
[ARCHIVE CLIP, protester: Stopping us on the street, kicking in the doors, taking them down to the police station, kicking their teeth in.]
[ARCHIVE CLIP, protester: I will not accept charges against policemen. I will not accept charges against policemen. This is a judge, not some wild-eyed cracker that made this statement, although there might not be any difference. There might not be any difference if you can think on that. You understand that? If we cannot bring charges against the policemen who have murdered us and destroyed our homes and businesses, where will we go? Where will we go?]
DETHORNE GRAHAM JR.: She didn’t want him to have to experience the -- all that mess. So he ended up, I think he ended up going to Fayetteville State.
MATT: A historically black college.
WOODY CONNETTE: In North Carolina.
MATT: And when Dethorne Sr. graduated, actually one of the first jobs that he had ...
DETHORNE GRAHAM JR.: He worked for an employer called Precision Springs.
MATT: This was a steel company that specialized in making springs, but at a certain point he ended up actually suing the company.
DETHORNE GRAHAM JR.: For discrimination based on how they were treating, you know, people of color.
MATT: So after that day with the officers in Charlotte ...
DETHORNE GRAHAM JR.: The one thing I do remember Dad saying was that it wasn't right.
MATT: Dethorne was gonna fight.
WOODY CONNETTE: Right. And ...
MATT: That is how he ends up walking into Woody's office on crutches in 1985, and he tells Woody, "I want to sue the Charlotte Police Department."
WOODY CONNETTE: So we went ahead and just filed our lawsuit in federal court.
MATT: Woody takes it to trial and basically his argument is that the police ...
WOODY CONNETTE: They had used excessive force that was totally unnecessary under the circumstances.
MATT: Like, they roughed up a diabetic who was telling them that he was a diabetic. And eventually the judge presiding over the case ruled that, no ...
WOODY CONNETTE: No.
MATT: ... these officers did not use excessive force, and if you are gonna claim that they did ...
WOODY CONNETTE: We had to show that the police officers had acted maliciously for the purpose of causing harm.
JAD: Huh. So they had to prove that the officers actually meant to hurt him?
MATT: Yeah. That Woody and Dethorne had to prove that the officers had it out for Dethorne.
WOODY CONNETTE: And we simply couldn’t do that.
MATT: Yeah, that seems like a really hard thing to prove.
WOODY CONNETTE: It’s an almost impossible standard to meet.
MATT: And I think it’s important to zoom in on this for a second, because this is really kind of, like, the crux of the story. If the question is what should the standard be for holding a cop accountable for the use of force, then in the mid-'80s, malicious intent was sort of the prevailing standard. If you were going to claim that a police officer used excessive force against you, then the standard was that you had to prove that the officer did so with malice in their heart.
JAD: Why was that the standard?
MATT: Phew, this is kind of hard to explain.
WOODY CONNETTE: I don’t have the Fourteenth Amendment in front of me but it essentially says ...
MATT: All you really need to know is that it was connected to the Fourteenth Amendment, to a particular clause in the Fourteenth Amendment. And this is why Woody and Dethorne lost that case.
JAD: Okay. All right, so it loses at Federal Court.
MATT: Loses at Federal, makes its way up to ...
WOODY CONNETTE: The Fourth Circuit Court of Appeals. That went nowhere. The Court of Appeals ruled against us.
JAD: Same thing?
MATT: Same thing. But then not long after that ruling, Woody gets a phone call.
GERALD BEAVER: Radio, can you hear me?
MATT: From this guy.
GERALD BEAVER: Yup.
WOODY CONNETTE: Gerry Beaver.
MATT: A known civil rights lawyer in the area.
GERALD BEAVER: In Fayetteville, North Carolina.
WOODY CONNETTE: Gerald was older and wiser than me.
GERALD BEAVER: That’s your wording, not mine.
MATT: Gerry had caught wind of the Circuit decision and was just like ...
GERALD BEAVER: Oh, no. No, no, no, no, no, no. You should not have to require that the police officer had it in for you and just wanted to beat the crap out of you just because it made him feel better. So I called Woody and said, "Are you guys planning on taking this case to the Supreme Court?"
MATT: And Woody was like ...
WOODY CONNETTE: No.
MATT: "My client can’t really afford that."
GERALD BEAVER: I said, "Tell him he doesn’t have to worry about that. We will be glad to take it on pro bono and see if we can get this ruling overturned."
MATT: When he heard that, Woody said ...
WOODY CONNETTE: Sure. Let’s go.
MATT: So Gerry and Woody get together and they start looking around, like, what’s out there? What cases can we draw on to argue that there should be a different standard? And it just so happened that this is the mid-‘80s, and there was this swell of police use of force cases kind of bubbling up in the courts, and you had lawyers trying out all these different ideas. Now most of the courts were using the Fourteenth Amendment malicious intent standard that Gerry and Woody didn’t like.
GERALD BEAVER: But then there was also in a number of cases, the Eighth Amendment.
MATT: What’s the Eighth?
[ARCHIVE CLIP, Justice Stephen Breyer: Cruel and unusual punishment.]
MATT: Hey, Justice Breyer.
WOODY CONNETTE: The Eighth is cruel and unusual punishment.
MATT: Problem there ...
[ARCHIVE CLIP, Justice Stephen Breyer: Which doesn’t totally explain itself.]
MATT: What is cruel? What is unusual? Like, take the word, "Cruel." Cruel seems to imply ...
GERALD BEAVER: Bad intent.
MATT: That you’re trying to hurt somebody. Which means if you’re gonna prove anything, you still have to crawl inside somebody’s head.
MATT: But there was another amendment that some of the courts were using that Woody and Gerry looked to as their sort of like redeemer.
GERALD BEAVER: The Fourth Amendment.
WOODY CONNETTE: The Fourth Amendment.
MATT: The Fourth Amendment.
MATT: Which is ...?
GERALD BEAVER: Well, which is the government cannot subject citizens to unreasonable search and seizure.
MATT: I have it on my legal pad. The Fourth Amendment is the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.
JAD: And is seizure just another word for force? Like, I have the right not to be, like, beaten or shot by my government?
MATT: Yeah, yeah. It’s not just that but yes, it also includes that. And to Gerry and Woody, what they liked so much about the Fourth Amendment is that in there is this one important word. Un ...
GERALD BEAVER: Reasonable.
WOODY CONNETTE: Reasonable.
MATT: ... reasonable.
GERALD BEAVER: The concept of reasonableness. What is reasonable and what is not reasonable?
MATT: In law, reasonable is supposed to be objective.
GERALD BEAVER: You look at the case from the facts of the case.
MATT: You look at the who, what, where, when. Not the why.
GERALD BEAVER: Correct.
MATT: And then you ask, "Was this person’s behavior reasonable or not?"
GERALD BEAVER: They have to act with objective reasonableness.
JAD: Wait a second. I mean, reasonableness is a slippery thing. What you find reasonable and what I find reasonable.
MATT: Could very well be different.
JAD: Could be completely different.
MATT: Yes and no. It can feel slippery but legally ...
GERALD BEAVER: The whole concept of reasonableness had hundreds of years of precedent.
MATT: I mean, I find this very fascinating, and I don’t know if you want me to give you, like, a little bit of a backstory?
JAD: Well, do you want to give me a little bit of a backstory?
MATT: I don’t know. I think it’s kind of -- it's interesting how it came to be and how popular it is.
JAD: Yeah, take me on the ride.
MATT: Okay. All right, so we go back to, like, the 1830s.
JAD: Is that Andrew Jackson era? No, he's 18 ...
MATT: No, no, no. We’re actually over in Europe.
JAD: Oh, okay.
MATT: We're in Belgium. This is gonna be, like, a little wind-y, but I think it kind of makes sense. So in the 1830s there's 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, looked a little bit like David Strathairn, the guy from the Edward Murrow movie, the Jason Bourne movies, if that helps you at all.
JAD: Yeah, yeah, totally. He’s great.
MATT: Anyhow, he was a super smart guy, and in the 1830s the Belgian government wanted to set up an observatory, but astronomers had this issue that they had trouble pinpointing the location of stars because their telescopes were just so bad. But Quetelet was one of these astronomers who knew you could use statistics to figure these things out. You could take an average of all the different measurements, an average of the meteorological data and that could help you pinpoint where stars were actually gonna be in the sky.
MATT: So, that they could make predictions.
JAD: That’s interesting, I didn’t know that.
MATT: Yeah, this statistical average thing was, like, revolutionizing astronomy. And so what happened was 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 the heavens, from the sky, and started applying it to humans. And so he began combing through data in medical journals, trying to determine the average height of a person, the average weight, the circumference of somebody’s chest.
JAD: Was he trying to, like, come up with these sort of proto-man kind of thing?
MATT: Yeah, totally. And it would have a huge impact on public health. But he ends up actually going beyond this and it’s beyond just, like, physical traits and he starts to, like, push into man’s morality. And he’s looking at crime rates, suicide rates, marriage rates, and in the 1830s he starts laying out this concept, what is in French, l’homme moyen, which translates to into "the average man."
JAD: The average man. So this is, like, big data 1830s-style.
MATT: Yeah. And this idea, l’homme moyen, the average man, it became very useful in law, English law.
JAD: Really? How, exactly?
MATT: Let me explain. In Victorian England, there was much ado about people who wanted to sue for damages or left in bandages, there was a need for constant averages. A way to take measure and stock to see if a person had strayed from the flock. This surely seemed like the best way to determine if the accused had to pay.
JAD: What are you doing?
MATT: Oh, that’s stanza one. All right. Onto 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 jury, I ask of you, what is it that we shall do? How about think of ordinary folk, your average, typical, reasonable bloke. And then 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: Wow. What -- what -- I didn’t even know you had that in you, Kielty. Okay -- 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 the somebody else did they act out of the ordinary? Were they unreasonable?
MATT: 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. Eventually, it switches to person, to be a little bit more gender inclusive. But this reasonable person, it’s one of the longest established fictional characters that exists in what is known as, like, the legal village, where you have these other little characters. Like, it starts with the reasonable person, and then you start -- you get, like, a slew of these other --these other characters that come out of that, which is -- I have a little list. There’s the ordinary, prudent man of business, the officious bystander.
MATT: 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.
MATT: There’s also a reasonable hairdresser.
MATT: It’s sort of like -- it’s like, in any sort of trade or craft, where there’s business being done or you have the ability within your craft to harm somebody, legally it became very useful to an average archetypal person doing that craft so that the jury or the judge would have something to use as a measurement when rendering judgment.
JAD: That’s interesting. So, like, in the hairdresser example, whatever it was that led to that phrase probably was a Queteletian survey, at least an imagined one, of hairdresser behavior.
MATT: Yeah. Like, maybe you went in to get a haircut, and you walked out and half your ear’s gone.
JAD: Right. And you’re just, like, "Where did half my ear go?"
MATT: And then it's just you go to court and you're like, any reasonable hairdresser would not have made that cut.
JAD: 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?
JAD: This is producer Kelly Prime.
KELLY: So, like, in English law, like Matt said, there’s, like, this village of people. But in England at the time they had this idea that it wasn’t, like, a village, it was people on a bus. It was called, "The Man on the Clapham Omnibus." Which is roughly -- I looked up -- London bus route 88.
JAD: Wait. So this is, like, a bus full of reasonable people?
KELLY: Yeah, yeah. So all those people ...
MATT: Where are they going?
KELLY: I don’t know. They just ride all day. All those people just waiting for their case to come up and be like, "Oh. That’s you, hairdresser." And then, like, that concept moved and, like, Australia was like, "Okay, we should use that." And then one part called it, "The Man on the Bondi Tram," and another part called it, "The Man on the Burke Street Tram." And then Hong Kong got it and they said it’s the "Man on the Shau Kei Wan Tram."
JAD: So the bus is just a convenient vessel to hold all these reasonable people?
KELLY: Yeah, yeah, yeah. So England said all these people are on a bus because you didn’t want someone who’s, like, so lowly that they are like -- they're not riding the bus, they’re, like, holed up in cave somewhere. Or someone that is, like, high up in their castle. It’s like ...
MATT: It’s like the common man.
KELLY: Yeah, exactly. So it said -- it was described as reasonably educated, intelligent but nondescript.
MATT: And I think, like, what Woody and Gerry to bring it all the way back, were essentially trying to do was to say, we need to use the Fourth Amendment and this idea of unreasonable search and seizure to create a reasonable officer.
JAD: Oh, so we need to add a reasonable officer to the village.
JAD: Or the bus.
MATT: So ...
[ARCHIVE CLIP: The case is submitted.]
MATT: In 1989, almost five years after everything happened to Dethorne Graham that one day in Charlotte ...
[ARCHIVE CLIP: We’ll hear argument next in number 87-65-71.]
MATT: His case went before the Supreme Court.
[ARCHIVE CLIP: Dethorne Graham versus M.S. Connor.]
MATT: Now Dethorne wasn’t there for the arguments. Woody was there.
WOODY CONNETTE: As a spectator to watch.
MATT: Gerry was actually arguing the case.
MATT: Did you have butterflies?
GERALD BEAVER: Of course.
[ARCHIVE CLIP: You may proceed whenever you’re ready.]
[ARCHIVE CLIP, Gerald Beaver: Mr. Chief Justice, and may it please the court ...]
MATT: And pretty quickly, these arguments ...
[ARCHIVE CLIP, lawyer: You don’t know it’s being reasonable unless you know what the subjective intent of the officers are.]
MATT: Turned into, like, this word soup.
[ARCHIVE CLIP, lawyer: Some objective standard ...]
MATT: Where you got Gerry ...
[ARCHIVE CLIP, Gerald Beaver: Objective jurisprudence.]
MATT: The lawyer for the officers ...
[ARCHIVE CLIP, lawyer: Subjective.]
MATT: The justices ...
[ARCHIVE CLIP, justice: The objective-subjective dichotomy, but ...]
MATT: All getting super meta about what constitutes objectivity.
[ARCHIVE CLIP, justice: Objectively unreasonable, I’d say.]
[ARCHIVE CLIP, lawyer: Subjective factor have ...]
MATT: Analysis tests and standards.
[ARCHIVE CLIP, lawyer: Severe objective testing.]
[ARCHIVE CLIP, lawyer: The subjective analysis ...]
MATT: Bad intent, no intent.
[ARCHIVE CLIP, lawyer: Subjective intent.]
[ARCHIVE CLIP, lawyer: I think we’re playing with words there.]
MATT: Until ...
[ARCHIVE CLIP, Justice Thurgood Marshall: Well ...]
MATT: One justice, Thurgood Marshall, the lone African American on the court, comes in and just asks ...
[ARCHIVE CLIP, Justice Thurgood Marshall: What reason was there for handcuffing a diabetic in a coma?]
[ARCHIVE CLIP, lawyer: At the time, the officers didn’t know that he was a diabetic in a coma. The ...]
[ARCHIVE CLIP, Justice Thurgood Marshall: What was he doing that was so violent that he had to be handcuffed?]
[ARCHIVE CLIP, lawyer: You have to go back one step even before that. Officer Connor saw petitioner act in a very suspicious and unusual manner.]
[ARCHIVE CLIP, Justice Thurgood Marshall: Violent?]
[ARCHIVE CLIP, lawyer: It wasn’t clear. He saw him hurry into a convenience store and hurry out.]
[ARCHIVE CLIP, Justice Thurgood Marshall: Well, what did he do that was violent?]
[ARCHIVE CLIP, lawyer: Excuse me?]
[ARCHIVE CLIP, Justice Thurgood Marshall: What did he do that was violent?]
[ARCHIVE CLIP, lawyer: Mr. Berry’s ...]
[ARCHIVE CLIP, Justice Thurgood Marshall: Threatened anybody?]
[ARCHIVE CLIP, lawyer: ... testimony. His petitioner’s own witness said that petitioner was throwing his hands around, that Berry had asked for officer consult.]
[ARCHIVE CLIP, Justice Thurgood Marshall: What was he doing -- I’m talking about before they put the handcuffs on him. What was he doing before they tried to put the handcuffs on him?]
[ARCHIVE CLIP, lawyer: He was acting in a very bizarre manner. He ran out of the car, circled around it twice and then sat down. The District Court ...]
[ARCHIVE CLIP, Justice Thurgood Marshall: Was that threatening to anybody? Did he strike anybody?]
[ARCHIVE CLIP, lawyer: Well, the officers didn’t have to wait until he was ...]
[ARCHIVE CLIP, Justice Thurgood Marshall: Did he strike anybody?]
[ARCHIVE CLIP, lawyer: I don’t believe the record indicates that he struck anybody.]
[ARCHIVE CLIP, Justice Thurgood Marshall: Did he threaten to strike anybody?]
[ARCHIVE CLIP, lawyer: He was acting in a unpredictable and potentially dangerous manner.]
[ARCHIVE CLIP, Justice Thurgood Marshall: Can you answer it? Did he threaten to strike anybody?]
[ARCHIVE CLIP, lawyer: He did not overtly threaten to strike anyone.]
[ARCHIVE CLIP, Justice Thurgood Marshall: Did he have a weapon of any kind?]
[ARCHIVE CLIP, lawyer: The record doesn’t indicate it, I don't believe.]
[ARCHIVE CLIP, Justice Thurgood Marshall: The record didn’t show he had a weapon of any kind?]
[ARCHIVE CLIP, lawyer: That’s correct, but the record ...]
[ARCHIVE CLIP, Justice Thurgood Marshall: Well, why was he handcuffed?]
[ARCHIVE CLIP, lawyer: The record shows that he was properly stopped as a suspect for a criminal investigation. That he was acting suspiciously, that he was acting in a bizarre manner. And that even after he was handcuffed and the officers went to put him in the car, the undisputed record shows that he was vigorously fighting and kicking.]
[ARCHIVE CLIP, Justice Thurgood Marshall: Well, shouldn’t a diabetic object to being arrested rather than given treatment?]
[ARCHIVE CLIP, lawyer: He wasn’t arrested. He was never arrested.]
[ARCHIVE CLIP, Justice Thurgood Marshall: Why was he handcuffed?]
[ARCHIVE CLIP, lawyer: He was handcuffed because the officers were concerned that he was a criminal suspect. He was acting in a very unusual and erratic way. He was throwing his hands around. Indeed, the District Court stated from the record that he was handcuffed in part to protect himself as well as the officers.]
[ARCHIVE CLIP, Justice Thurgood Marshall: To protect himself?]
[ARCHIVE CLIP, lawyer: That’s the -- the District Court summarized the record as indicating that. That’s correct. Now ...]
[ARCHIVE CLIP, Justice Thurgood Marshall: May I differ?]
[ARCHIVE CLIP, lawyer: May you differ?]
[ARCHIVE CLIP, Justice Thurgood Marshall: To that conclusion?]
WOODY CONNETTE: When Justice Marshall said that, suddenly I heard a judge who understood our point of view. Somebody gets it. And all of a sudden I felt like I was not an idiot after all.
MATT: The court eventually puts out their opinion. It’s written by the Chief Justice William Rehnquist, and in that opinion Rehnquist says -- skipping down here a little bit. "Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop or other quote-unquote "seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right to be secure in their persons against unreasonable seizures, and must be judged by a reference to the Fourth Amendment’s reasonableness standard."
JAD: So they get their reasonable officer standard?
MATT: They get it, and they get it unanimously.
GERALD BEAVER: A nine-nothing opinion.
WOODY CONNETTE: It was a breakthrough.
MATT: I don’t think it would be a stretch to say that at the time, to a lot of people who were concerned about police brutality, police use of force, it felt like this was the beginning of a new era.
WOODY CONNETTE: That favored plaintiffs and claimants.
MATT: Because now, if you were a victim of police violence and you wanted some justice, you had this new universal standard.
GERALD BEAVER: An objective standard.
WOODY CONNETTE: We no longer had to show that the officers acted maliciously or sadistically.
MATT: You don’t have to get inside the officer’s head, you don’t have to prove that they had bad intent. You just look at the case.
GERALD BEAVER: From the facts of the case.
MATT: And you say, "Would a reasonable officer do the same thing or not?" And you could establish, like, what a reasonable officer is, what they would do by calling experts, looking at data about age and rank and experience, all sorts of things. But the thought was that this would be objective. For the first time in hundreds of years, maybe they would have an objective standard.
WOODY CONNETTE: That was a breakthrough.
MATT: So after winning, did the case get kicked back down to the Circuit? Like, what happens to Dethorne?
WOODY CONNETTE: After we won in the Supreme Court, the case went back to the trial court level for another trial.
WOODY CONNETTE: That was the effect of it. And so Mr. Graham had another day in court, another trial. We picked another jury.
MATT: The facts were presented.
WOODY CONNETTE: Diabetic, insulin reaction. Bottle of orange juice, pulled him over.
WOODY CONNETTE: Handcuffed.
MATT: Physical altercation.
WOODY CONNETTE: Broken foot.
MATT: Lacerations wrist, bruised forehead.
WOODY CONNETTE: Squad car. Front yard.
MATT: Essentially, here was a guy who did nothing wrong and was beaten up.
WOODY CONNETTE: The case was given to the jury.
MATT: And the jury was told, okay, knowing what you now know, take this standard, this reasonableness standard and ask yourself: Is what happened to Dethorne Graham reasonable? The jury deliberated, came back out ...
WOODY CONNETTE: And they decided in favor of the police officers. Mr. Graham lost.
MATT: Now whether you think this was reasonable or not, the jury really focused in on the police officers’ perspective. And from the officers’ perspective, all they saw was a Black man running in and out of a convenience store, they thought he might be stealing something, they had no idea he was a diabetic. And when the police picked him up ...
WOODY CONNETTE: He was a little bit out of control.
MATT: He's acting weird, he was running around the car.
WOODY CONNETTE: Creating trouble.
MATT: Not because he’s a diabetic ...
WOODY CONNETTE: But he’s a drunk.
MATT: Might be dangerous. A reasonable officer would subdue that person.
DETHORNE GRAHAM JR.: Excuse me, I’m so sorry.
MATT: Oh, the doorbell again?
DETHORNE GRAHAM JR.: There goes the dogs again, yeah.
MATT: Oh, the dogs.
MATT: So when I talked to Dethorne Graham Jr., he was actually moving from his home in St. Louis ...
DETHORNE GRAHAM JR.: I’m just going to open the garage up for this guy.
MATT: Back to where he still had a lot of family in Charlotte.
DETHORNE GRAHAM JR.: Okay, I’m back, hopefully.
MATT: All right. Cool.
DETHORNE GRAHAM JR.: We’re okay now.
MATT: I was just wondering, did your dad talk about the -- about what happened that day, or did he talk about the court case at all?
DETHORNE GRAHAM JR.: No, he didn’t. It wasn’t something that he talked about.
MATT: Dethorne Jr. says that his dad was just kind of trying to get on with his life.
DETHORNE GRAHAM JR.: He started making furniture in his spare time.
MATT: Going to church a lot.
DETHORNE GRAHAM JR.: But he had his -- he had his troubles. He had a -- he ended up having substance abuse issues. So -- and which fortunately he was able to overcome that, and ...
MATT: And that was after the Supreme Court case? After the ...
DETHORNE GRAHAM JR.: That’s correct. That’s correct.
DETHORNE GRAHAM JR.: And so, I mean, I don’t know if his way of trying to deal with that was through substance abuse. I don’t know. You know, when you are dehumanized like that, when -- when another individual, whether they -- it’s kind of hard to explain Matt, but when someone who has authority just -- it’s like they take something away from you. When someone does something like that to you, it strikes at your core, it strikes at your very being. And I think you lose a part of yourself that you can’t get back.
MATT: Dethorne Graham Sr. died in the year 2000. He was 54 years old. But after his death, his name lived on in this case in this very weird way. So, 2014 ...
[NEWS CLIP: There is growing outrage tonight after an unarmed African American teenager was shot and killed by police in the St. Louis suburb of Ferguson, Missouri.]
MATT: Not far from where Dethorne Jr. lives, a white officer, Darren Wilson, shot and killed a Black teenager, Michael Brown.
DETHORNE GRAHAM JR.: A reporter from CNN contacted me and he talked about how they were gonna use my dad’s case during that trial.
MATT: As a defense, for the officer.
DETHORNE GRAHAM JR.: This CNN reporter informed me, said ...
MATT: "Do you know about this?"
DETHORNE GRAHAM JR.: No, I had no idea.
[ARCHIVE CLIP: The Grand Jury deliberated over two days, making their final decision.]
MATT: One of the questions posed to the jury was: Did Officer Darren Wilson act reasonably when he shot Michael Brown?
[ARCHIVE CLIP: They determined that no probable cause exists to file any charge against Officer Wilson, and returned a no true bill on each of the five indictments.]
MATT: And the jury was basically, like, yeah, that was reasonable.
[ARCHIVE CLIP, protester: I think this is a fucking joke.]
[ARCHIVE CLIP, protester: We with you, baby.]
[ARCHIVE CLIP, protester: They killed her baby, man.]
[ARCHIVE CLIP, protester: We’re with you.]
[ARCHIVE CLIP, protester: I can’t get nobody back.]
[ARCHIVE CLIP, protester: We’re going to get justice! We’re going to get justice!]
MATT: Later that same year ...
[NEWS CLIP: The 12-year-old boy shot and killed by two officers while holding a pellet gun.]
MATT: Tamir Rice.
[ARCHIVE CLIP: We are instructed to ask what a reasonable police officer would do in this particular situation.]
MATT: The jury found that the officer who shot and killed the 12-year-old boy Tamir Rice acted reasonably. And then ...
[ARCHIVE CLIP, protesters: I can’t breathe! I can’t breathe!]
MATT: Eric Garner.
[NEWS CLIP: A grand jury in New York City has refused to indict yet another white police officer said to have killed an unarmed Black man.]
MATT: His death was reasonable. John Crawford ...
[NEWS CLIP: A 22-year-old Black man killed last month.]
[NEWS CLIP: Carrying around a BB gun.]
[NEWS CLIP: After a judge declared a mistrial today.]
MATT: Samuel DuBose.
[NEWS CLIP: In the case of a white police officer who killed an unarmed Black man.]
[NEWS CLIP: With Sterling on his back ...]
MATT: Alton Sterling.
[NEWS CLIP: One officer pulls his gun.]
[NEWS CLIP: Sterling lay dying on the street.]
MATT: Terence Crutcher.
[NEWS CLIP: An unarmed Black man ...]
[NEWS CLIP: ... shot and killed by police in Oklahoma.]
[NEWS CLIP: Charlotte police ...]
MATT: Keith Lamont Scott, Jamar Clark.
[ARCHIVE CLIP, mother: This city killed my son.]
MATT: Philando Castile. Reasonable.
[ARCHIVE CLIP, mother: Are you kidding me right now? We’re not evolving as a civilization. We’re devolving. We’re going back down to 1969. Damn!]
MATT: And in almost every one of those cases, Graham vs. Connor, the Supreme Court decision that many people felt was supposed to establish a new universal standard that would deliver justice for victims of police violence, in almost every one of those cases it ended doing the exact opposite. It prevented the victims from getting relief and instead protected the cops.
KELLY MCEVERS: One person, my colleague who covers cops, describes it as, like, cops -- cops see it as, like, their First Amendment.
JAD: After the break we’ll ask: How did that happen? And we’ll watch it happen. More Perfect will continue in a moment. Radiolab will continue in a moment.
JAD: This is More Perfect. I’m Jad Abumrad. 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, 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 percent of the overall population, what you end up with is that an unarmed Black man is roughly about seven times more likely to be killed by police than an unarmed white man. That’s according to one study. Now these numbers are very disputed and argued about, but what is clear is most police officers who use deadly force are never charged and an even smaller percentage serve jail time. So Matt ...
JAD: 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: Yeah. Yeah.
MATT: Well, that’s -- it’s because the reasonable officer standard, like, from the moment that it was created, it was actually constrained in a few very important ways.
KELLY: Yeah, and actually, like, I have here the jury instructions from the Ninth Circuit, and this is what jury members are told to think about when they have to assess this kind of use of force case.
MATT: Oh, sweet. You just want to read those?
KELLY: Yeah, yeah. And so ...
JAD: This is what the jurors are actually told this is your job?
KELLY: Yeah, exactly.
MATT: Just to back ID, Prime Time Kelly Prime.
KELLY: Yeah. So it says under the Fourth Amendment, a police officer may use only such force as is objectively reasonable. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene, and not with 20/20 vision of hindsight.
MATT: Those -- those are a couple really crucial phrases, which is, "perspective of an officer on the scene," so you have to look at it through the eyes of the officer on the scene. And then you can’t look at it through the 20/20 vision of hindsight. So you have to put yourself in the shoes of an officer in the moment and look at it through their eyes, and that’s how you have to understand these things.
JAD: And where did that idea come from?
MATT: So that comes from Graham. Like, that comes from the Chief Justice William Rehnquist’s opinion, which I have right here. "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. And its calculus must embody an allowance for the fact" -- and this is extremely important -- "that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation." And so, as you can see, this idea of reasonableness is circumscribed very tightly by time. It’s not asking, like, what a reasonable officer would do here in general during a moment where -- where they have to use force. Instead, what it’s asking is what would a reasonable officer do in this split second, in this little tiny sliver of time where the force actually occurred? And in fact, that moment has legally become to be known as a superseding event.
JAD: Meaning what? What does that mean?
MATT: Meaning, this is -- I find this is kind of crazy. Meaning that that moment, that superseding event, essentially it breaks the chain of causation. So if you think of time as just this, like, continuous flow, this is like, no, you break that, you stop that and you take this one little moment and you pluck it out and you’re like, this moment. This is the one moment that you look at.
JAD: That’s all they can think about, the jurors?
MATT: Right. And it turns out, if you ask a jury the question about use of force that way, about this one little moment, the Graham standard that many people thought and hoped would help victims of police violence does the exact opposite.
KELLY MCEVERS: One person, my colleague who covers cops, describes it as, like, cops -- cops see it as, like, their First Amendment.
MATT: They just think of it like as a shield?
KELLY MCEVERS: Yeah.
MATT: Okay, so this is NPR reporter ...
KELLY MCEVERS: Kelly McEvers. Host of Embedded podcast and All Things Considered.
MATT: So, Kelly’s actually -- she’s covered police shootings for the past, like, year for NPR, and we’ve sort of been comparing notes with her as we’ve been producing our story. And a little while back, she sent us an email basically saying that she had this opportunity to go and see something that most people don’t get to see. To sort of see how cops are actually trained to understand Graham. And so she asked us, do you want in? And we were like, yeah.
KELLY MCEVERS: Okay, so I went to Cleveland.
[ARCHIVE CLIP: All right all you hungover cops, let’s get this shit started.]
KELLY MCEVERS: For this two-day training course called Street Survival.
MATT: It was in a hotel ballroom.
KELLY MCEVERS: One of those hotel ballrooms where you have, like, a big conference and ...
JAD: How many people? Do you remember?
KELLY MCEVERS: There was somewhere just under 200 cops. Lots of really jacked dudes, with tats.
MATT: Mostly white.
KELLY MCEVERS: There were some sarges, some lieutenants.
MATT: Rookies right out of the academy, some mid-career guys.
KELLY MCEVERS: From all over Ohio, Pennsylvania. And they were not super happy about me being there.
JAD: Did you get, like, angry stares?
KELLY MCEVERS: I mean, in the beginning there was just, like, a lot of side eye.
[ARCHIVE CLIP, Jim Glennon: Nice, nice. Good morning, Cleveland. How’s everybody doing? How many of you have been to a Calibre Press seminar before? Please show of hands. Let’s do it this way, who’s never been here before, never been to a Calibre Press class? Oh wow. Good, good deal.
MATT: Kelly said the whole thing was put on by this company.
KELLY MCEVERS: Called Calibre Press. It’s a company that’s actually been around for a really long time. And they teach classes.
MATT: Classes that are aimed at police departments. They offer them all across the country. And this particular one ...
[ARCHIVE CLIP, Jim Glennon: We’re gonna talk a lot about stress survival instincts.]
KELLY MCEVERS: The general idea is how to survive and, like, make it to retirement.
[ARCHIVE CLIP, Jim Glennon: I mentioned heart attacks, emotional health, suicide.]
KELLY MCEVERS: You know, how to basically do this job and ...
[ARCHIVE CLIP, Jim Glennon: It’s really about 24/7 survival.]
KELLY MCEVERS: ... and live.
[ARCHIVE CLIP, Jim Glennon: Living and lasting a 25-30 year career.]
KELLY MCEVERS: They talk a lot about self care.
[ARCHIVE CLIP: What do you eat?]
KELLY MCEVERS: About sleep and exercise.
[ARCHIVE CLIP: My wife and I talked about this. If I start getting crabby, there’s something else there.]
KELLY MCEVERS: Making sure that your spouse and your family, like, understand the stresses of your job. And they talk about going to therapy. I mean, it’s like ...
KELLY MCEVERS: There’s times when it’s really this touchy-feely kind of thing.
[ARCHIVE CLIP: I started getting overwhelmed. I didn’t know what was happening with me.]
MATT: There’s even a moment, she says, when an officer got up, talked about contemplating suicide.
[ARCHIVE CLIP: My wife kept on telling me I needed to get help. I started secluding myself. I started alienating myself. Was fucking hating everybody.]
KELLY MCEVERS: Everyone was, like, crying. So I mean, it’s a really intense couple of days.
MATT: But for our purposes, the reason we were there or the reason we were excited for Kelly to be there is that a big chunk of the class ...
[ARCHIVE CLIP, Jim Glennon: So all right, let’s talk about the ...]
MATT: ... is devoted to Graham.
[ARCHIVE CLIP, Jim Glennon: ... about Graham vs. Connor and us actually using force.]
MATT: About teaching these cops about how to understand Graham, and -- and how it impacts their lives. And by the way this is the instructor, the Graham instructor. His name is Jim Glennon.
KELLY MCEVERS: He himself was a cop for years and years and years.
[ARCHIVE CLIP, Jim Glennon: I was in charge of use of force for 18 years.]
KELLY MCEVERS: He was a lieutenant outside of Chicago.
[ARCHIVE CLIP, Jim Glennon: And I tell you, we talked about Graham vs. Connor and our use of force policies on a regular basis. I don’t mean I got up four times a year and just read. What I would do is show a video and then let’s talk about Graham vs. Connor based on this video.]
MATT: So, fired up the projector.
[ARCHIVE CLIP, Jim Glennon: Come on.]
KELLY MCEVERS: It is really interesting to see these videos from their perspective.
[ARCHIVE CLIP, Jim Glennon: Like this one.]
[NEWS CLIP: Video of a ...]
KELLY MCEVERS: September, 2015, a guy named Freddy Centeno.
[NEWS CLIP: 40 year old, Freddy Centeno.]
KELLY MCEVERS: He’s gone to a woman’s house, like, to a woman’s front door and threatened her and says he has a gun. And the cops pull up ...
MATT: Get out of their car, they’re just, like, 20 feet away from Centeno, who’s walking towards them on the sidewalk.
[ARCHIVE CLIP: Hey, Pistol Pete. Get on the ground! Get on the ground!]
KELLY MCEVERS: 10 shots, 7 of them hit.
[ARCHIVE CLIP, Jim Glennon: The sequence was 47 frames long, and that translates to about 1.566 seconds.]
KELLY MCEVERS: Jim claims it happens in about 1.566 seconds.
[NEWS CLIP: A 40-year-old mentally disabled man is hit seven times and dies in the hospital 23 days later.]
MATT: And in one of these news clips that Jim shows, the lawyer for Freddy Centeno’s family is basically just like ...
[NEWS CLIP: This is a, you know, a bad shooting. It’s an atrocity.]
MATT: Like, this was an atrocity. Nothing about this use of force should be considered reasonable, because the cops in this situation, they rolled right up on Freddy Centeno, they didn’t create any space, they didn’t give Freddy Centeno any time.
[NEWS CLIP: They told him, get on the ground. He didn’t have a chance to get on the ground. One second before they began to fire.]
[NEWS CLIP: In his honor's view, the video shows the officers did not give Centeno a chance to respond to their commands.]
MATT: So Jim plays all these reaction clips.
KELLY MCEVERS: And then ...
[ARCHIVE CLIP, Jim Glennon: Here’s what happens, it’s real quick.]
MATT: He plays the original body cam video again.
[ARCHIVE CLIP: Hey, Pistol Pete!]
MATT: You see Freddy Centeno.
KELLY MCEVERS: They tell him to get on the ground. He doesn’t.
MATT: And then Jim slows the video down, and when he does you can see Centeno’s right hand.
KELLY MCEVERS: Reaches into his pocket.
MATT: Jim pauses. And he’s like, "Take a look at this right here." And up on the screen, Jim has this frozen moment where you can see that Freddy Centeno’s hand has started to move.
[ARCHIVE CLIP, Jim Glennon: The movement of a hand a couple of inches.]
MATT: Just starting to come up out of his pocket.
KELLY MCEVERS: This moment from the pocket to the out-of-the-pocket ...
MATT: This, to Jim, was the moment.
[ARCHIVE CLIP, Jim Glennon: The moment. Remember that word.]
MATT: Jim was like, this is the only moment that matters. Like, forget what happened before, forget that the officers rolled right up on Centeno, forget that they weren’t giving him much time or space, it’s this moment right here. When Centeno starts pulling his hand out of his pocket, this is the moment where you ask the question, "What would a reasonable officer do right now?"
[ARCHIVE CLIP, Jim Glennon: This man appears to be pulling out an object from his pocket. I can’t tell what it is, and you probably can’t either without outside information.]
KELLY MCEVERS: Turns out he had a nozzle from a garden hose.
[ARCHIVE CLIP, Jim Glennon: What was the call? Man with a gun. However you see this, whether he started moving up or down, he doesn’t go to the ground, he goes into his pocket and pulls something out. They think it’s a gun. Any reasonable person would think it’s a gun.]
MATT: And so ...
[ARCHIVE CLIP, Jim Glennon: Does this work under Graham? Yeah. It’s sad, yeah, but yes.]
KELLY MCEVERS: Yes.
[ARCHIVE CLIP, Jim Glennon: Under Graham, it’s fine, I believe.]
KELLY MCEVERS: For him, he’s just like, over and over and over stresses what would a reasonable police officer do ...
[ARCHIVE CLIP, Jim Glennon: At the moment you use force ...]
KELLY MCEVERS: ... in that moment?
[ARCHIVE CLIP, Jim Glennon: ... what did you know? Not what you could’ve known, not what you should’ve known. What did you know? What was going on? Look what it says up there.]
KELLY MCEVERS: He talks about Rehnquist and the decision. He's like, "What Rehnquist said is ...]
[ARCHIVE CLIP, Jim Glennon: Allowance must be made for the fact police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, rapidly-evolving about the amount of force that is necessary in a particular situation.]
KELLY MCEVERS: This is fast, it’s dynamic, it’s nothing like television. There’s no five cameras on it, there’s no change in the music, there’s no upswell in the music. It’s fast, and the court recognizes that.
[ARCHIVE CLIP, Jim Glennon: This is an Albuquerque case.]
MATT: Jim plays another example, this one of a guy ...
[ARCHIVE CLIP: Drop the gun! [gunshots and sirens]]
MATT: A white guy who police officers shot because they thought he had a gun.
[ARCHIVE CLIP, Jim Glennon: Guy did not have a gun.]
MATT: Guy had a knife, but the cops had gotten a call that he had a gun. And in this split second he raised his arm like he was raising a gun up, and so the cops shot him.
[ARCHIVE CLIP, Jim Glennon: Does this work under Graham? Yeah.]
MATT: Another one.
[ARCHIVE CLIP, Jim Glennon: I talked to this officer. He gets a call to a domestic.]
MATT: Showed another video of a police officer shooting an unarmed white man in the head, and again he walked through it beat by beat.
[ARCHIVE CLIP, Jim Glennon: With Graham, you got to put yourself in that officer’s position, right?]
MATT: Said you got to look at just the superseding moment, forget everything else. And what you realize, if you do that, if you force someone -- say a jury -- to look at just that one moment, forgetting everything else, just look at this one slice through the eyes of an officer, then the whole concept of what is reasonable shifts. And the only real question you can ask when the moment is so confined is: Did the officer feel threatened? Like, was the fear that that officer had a reasonable fear in that moment? And that is a very different standard than what Woody and Gerry and Dethorne Graham had intended.
KELLY MCEVERS: Yeah, so ...
MATT: Kelly actually told us a story that she reported for her podcast, Embedded, that actually gets at some of this stuff.
KELLY MCEVERS: In this particular case ...
MATT: Who was Jonathan Ferrell and what happened?
KELLY MCEVERS: Jonathan Ferrell was a football player, he’s from Florida.
MATT: Was he a big dude?
KELLY MCEVERS: Yes.
KELLY MCEVERS: He looks like a football player.
MATT: 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: One night ...
KELLY MCEVERS: ... it was a Friday night. He goes with some friends. He goes out to a bar.
MATT: He has a couple of drinks, makes his way home.
KELLY MCEVERS: You know, we don’t exactly know what happened.
MATT: But while Jonathan Ferrell was making his back home, at some point ...
KELLY MCEVERS: His car ...
MATT: ... he lost control of his car, crashed into the woods off this road in suburban Charlotte.
KELLY MCEVERS: He didn’t have his phone.
MATT: 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: 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: Apparently she opens the door, sees Jonathan Ferrell and quickly closes it.
[ARCHIVE CLIP, 911 operator: 911, hello?]
KELLY MCEVERS: So, she calls 911.
[ARCHIVE CLIP, Sarah McCartney: I need help.]
[ARCHIVE CLIP, 911 operator: What's going on there?]
[ARCHIVE CLIP, Sarah McCartney: There’s a guy breaking in my front door.]
[ARCHIVE CLIP, 911 operator: There’s a guy breaking in your front door?]
[ARCHIVE CLIP, Sarah McCartney: Yeah. he’s trying to kick it down.]
MATT: The woman tells the dispatcher that she doesn’t know who the guy is.
[ARCHIVE CLIP, 911 operator: Are you sure he’s a Black male?]
[ARCHIVE CLIP, Sarah McCartney: Yes.]
[ARCHIVE CLIP, 911 operator: Okay.]
[ARCHIVE CLIP, Sarah McCartney: Oh my God.]
KELLY MCEVERS: Her alarm system’s going off.
[ARCHIVE CLIP, 911 operator: All right. It's 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.
[ARCHIVE CLIP, 911 operator: Where’s he at now?]
[ARCHIVE CLIP, Sarah McCartney: He’s still there yelling. Oh my God!]
[ARCHIVE CLIP, 911 operator: Do you have your baby with you?]
[ARCHIVE CLIP, Sarah McCartney: No, he’s in bed. I don’t know what to do.]
[ARCHIVE CLIP, 911 operator: Okay, I’m right here. The police are on their way, okay?]
MATT: 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: There’s a dashcam video from the squad car of one of the officers.
KELLY MCEVERS: They’ve gotten a description, It’s an African American man with green shirt and light pants.
MATT: So, this officer’s driving down this road, driving, driving, driving. 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: He’s walking towards the squad cars.
KELLY MCEVERS: You see the red light of a taser on his chest.
MATT: And then ...
[ARCHIVE CLIP, police officer: Get on the ground!]
MATT: Ferrell just, like, takes off. One of the officers is yelling at him to get on the ground.
[ARCHIVE CLIP, police officer: Get on the ground!]
MATT: But Ferrell keeps running.
KELLY MCEVERS: Runs off camera.
[ARCHIVE CLIP, police officer: Get on the ground!]
MATT: You can’t see what happens next, but then ...
MATT: One of the officers fires 12 shots, 10 of them strike Jonathan Ferrell. He falls to the ground.
[ARCHIVE CLIP, police officer: Shots fired. Shots fired. Don’t move! Don’t move!]
KELLY MCEVERS: And he dies.
MATT: The facts of this case are that here’s a guy who was unarmed, who did nothing wrong and then he was killed. Like, plain and simple. If you ask was that reasonable, well on some basic level, no, it was not reasonable. This man should not have died. But in the trial -- this case did go to a trial, a jury trial -- the jury was instructed: forget everything but that moment of force. Like, no 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? 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.
[ARCHIVE CLIP, Randall Kerrick: The suspect began aggressively coming towards me.]
MATT: And during the course of this trial, Officer Kerrick took the stand.
[ARCHIVE CLIP, lawyer: And could you tell the jury about what pace he was coming at you?]
[ARCHIVE CLIP, Randall Kerrick: At first, it was a pretty rapid pace, more of a fast walk. I gave loud, verbal commands for him to stop and get on the ground.]
[ARCHIVE CLIP, lawyer: How loud were your verbal commands?]
[ARCHIVE CLIP, Randall Kerrick: Very loud.]
[ARCHIVE CLIP, lawyer: Tell us -- show the jury how loud you were yelling to the suspect and what you were yelling to the suspect.]
[ARCHIVE CLIP, 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: 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 sort of run between them all.
MATT: That was what the prosecution was saying. The defense was like, "No, no, no. He was running at the cops."
[ARCHIVE CLIP, lawyer: Did the suspect say anything to you?]
[ARCHIVE CLIP, Randall Kerrick: No, sir.]
[ARCHIVE CLIP, lawyer: What did you interpret his body language to mean?]
[ARCHIVE CLIP, Randall Kerrick: He was gonna attack me. He was gonna assault me, he was gonna take my gun from me.]
[ARCHIVE CLIP, lawyer: Did you have time to holster your weapon?]
[ARCHIVE CLIP, Randall Kerrick: No, sir. And here I was, suspect matched the description and he just ran through a taser, which at the time I thought was -- 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.]
[ARCHIVE CLIP, lawyer: And was he ever -- was the suspect ever still?]
[ARCHIVE CLIP, Randall Kerrick: No, sir.]
[ARCHIVE CLIP, lawyer: Did he continue to advance on you?]
[ARCHIVE CLIP, 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 way. I didn’t think my gun was working. I thought I was going to die, because nothing I would do would stop him.]
[ARCHIVE CLIP, lawyer: What was the reason that you continued to fire your weapon?]
[ARCHIVE CLIP, Randall Kerrick: Because he wouldn’t stop. He kept trying to get to my gun.]
MATT: 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 RAFFY: 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: On one side ...
KELLY MCEVERS: A white guy named Bruce Raffy.
BRUCE RAFFY: We were sitting in that courtroom, and we were sitting in that jury deliberation room. It was no bigger than this living room, okay? And it’s hot and we’re arguing. We’re -- it’s going nowhere. And so the more it went on -- this went on for days.
KELLY MCEVERS: And he’s sort of leading the charge in the "We have to acquit Kerrick” side.
MATT: 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 Raffy’s saying to me, like, you know, he was a young man ...
BRUCE RAFFY: Distraught, disheveled, confused, angry, if you will.
KELLY MCEVERS: ... he made a very aggressive move ...
BRUCE RAFFY: Towards these police officers after disobeying commands. He had many choices in this video, and it was clear from the very first time I viewed it. Stop, sit down, put your hands up. Do any of those things, other than what you chose to do, which was to charge Officer Kerrick. And so there’s no other way around what I saw. And -- and I kept coming back to that.
KELLY MCEVERS: And that’s exactly how the defense painted it, right? This case is not about race. This case is about choices. And that stuck in Bruce Raffy’s mind, so that when he was asked was it reasonable for Kerrick to shoot him, it was like, "Well, yeah. Because Jonathan Ferrell made all these bad choices."
MOSES WILSON: This is an old trick from -- from defense attorneys.
MATT: This is another one of the jurors that Kelly spoke to.
KELLY MCEVERS: Named Moses Wilson.
MATT: 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?
KELLY MCEVERS: In the jury room.
MOSES WILSON: In the jury room. I wrote this on the board. What did he do?
MATT: And so what happens with the jury?
KELLY MCEVERS: It splits.
MATT: Eventually, the tally is eight to acquit, four to convict.
KELLY MCEVERS: Eight jurors, most of them white, side with acquitting Kerrick. And four jurors, most of them people of color ...
MATT: Side with convicting Kerrick.
[NEWS CLIP: Breaking news in the trial of Officer Randall Kerrick, the judge has just declared a mistrial. This after the jury ...]
MATT: 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 a separate civil suit.
KELLY MCEVERS: Yeah.
MATT: 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: Because it feels like this Fourth Amendment reasonableness standard, this reasonable officer standard, like, what -- from what I understand, is that it was an attempt to really kind of look at these situations, these shootings.
KELLY MCEVERS: Mm-hmm.
MATT: These uses of force cases through this sort of objective lens where you're just looking at all the facts on the ground.
KELLY MCEVERS: Right. Uh-huh.
MATT: And yet the cases don’t seem to be tied to, like, any sort of objectivity.
KELLY MCEVERS: Yeah.
MATT: And there’s something about hearing Moses, where you’re like, oh that’s actually, like -- that feels like a peer sort of objectivity. Like, what -- what had this guy done? He hadn’t actually done anything. He ran at somebody.
KELLY MCEVERS: Yeah.
MATT: Maybe. 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?
KELLY MCEVERS: Like, that is the question.
JAD: I don’t know. Given the history of our country, I’d say in many cases, that’s not even a question.
JAD: But I guess, the question I’m actually left with is: If this is where the reasonableness standard has led us, is there another standard?
WOODY CONNETTE: I think that’s right.
MATT: This is Woody Connette again. He represented Dethorne Graham in that original case.
WOODY CONNETTE: When you see it applied, you wonder whether or not this is the best standard or there might be something better. I just don’t have an answer to that.
ELIE MYSTAL: I -- I would just suggest a whole more radical standard then.
JAD: This is Elie Mystal, More Perfect’s legal editor. We ended up talking with him about this shortly after the Philando Castile verdict came out. So he was -- well, that was a tough pill for him and many people to swallow.
ELIE MYSTAL: I would suggest that they have to be -- the cops have to be right in fact, which is something we usually do not apply to the law.
JAD: What does that mean? Like, from a -- in the scenario of a police person who’s --- does that mean, like, I need to be right, that you don’t have a toy gun?
ELIE MYSTAL: Yeah.
JAD: Is that -- that’s what you mean?
ELIE MYSTAL: Yeah. So if you shoot me because you think I have a gun, I had best have a gun. And if I don’t have a gun, your ass is going to jail because you were wrong. I don’t care if you really thought so, I don’t care if I was telling you I had a gun. If I -- if you are not right in fact, then you have to go to jail. I think that is -- that would be a standard that would allow us to prosecute these police officers.
JAD: But then a police person’s gonna just argue that, like, you don’t understand the pressures ...
ELIE MYSTAL: Sure.
JAD: ... that I'm under. It’s a split-second decision, Monday morning quarterbacking. If you do what you just said, we’re not gonna be able to do our jobs.
ELIE MYSTAL: And I would say, [expletive] you, police officer, I’m sick of you. I would say, "Screw you. You have had your chance. You’ve had your chance to police my community without murdering us and you have failed for 300 years. Enough." That’s what I would say to that. More people might get hurt if I wasn’t -- I’m willing to risk that. I’m willing to try it that way then.
ELIE MYSTAL: I’m -- I’d rather -- I’d rather 10 illegal shoplifting people go free than one illegal shoplifting person gets shot in the street like an animal.
ELIE MYSTAL: If you want to talk about changing the standards, that is a standard change that could help.
MATT: Now that is, as Elie said, radical and probably not realistic, given that most Americans according to polls respect the police, have confidence in the police, perceive police to be, you know, the enforcers of the law. But there are other ideas out there that are starting to bubble up. And if what’s constraining us, if what’s keeping us stuck where we are are the words of Graham, then what offers us a way out could actually also be hiding in there.
JAD: What do you mean?
MATT: Okay, so you know how Chief Justice Rehnquist, when he wrote the decision in ‘89, he put in all these phrases that took the idea of a reasonable officer and constrained it.
MATT: So, these were, like, it’s constrained only to this little moment in time, it’s constrained to the perspective of the officers, constrained that there’s no 20/20 hindsight, all of that stuff. Well, in the decision he also -- he slipped in this other phrase. He was actually calling back to an earlier decision, and what he wrote was: "The question is whether totality of circumstances justifies a particular sort of seizure."
JAD: The totality of circumstances.
MATT: Totality of circumstances, which -- and it seems to be at odds with all of the other stuff.
JAD: Right, which is all about, like, little slivers and moments and things.
MATT: Yeah, it’s about all these little tiny little bits of time, where totality seems to be suggesting that this is, like, this is the whole thing.
JAD: So he had both -- both ideas in there at once?
MATT: Yeah. Which is why right now you see the lower courts are arguing about what this phrase actually means. And so half of the circuits are saying kind of like everything that we’ve already talked about, which is that all the totality of circumstances means is that you look at everything to answer the question: Was the officer scared? You look at everything that the officer would’ve known, everything the officer would’ve seen, perceived, and then you ask, okay, knowing all that, was it reasonable for the officer to be scared in the moment? The other half of the circuits say, no, no, totality of circumstances isn’t just about what the officer knew, what the officer saw, and how it answers the moment. Totality means, like, totality. Like, what did the officer do leading up to the moment? Did the officer try to get a search warrant? Did the officer try to de-escalate the situation before using force? Did the officer try to subdue the person before using deadly force? Like, suddenly all those things that are usually kept out of the frame, maybe can be let back in. The Supreme Court so far has shown no interest in ruling on this, in trying to sort this out, but they might because the argument is happening in the lower courts. So in a way we’re kind of living at a time very much like 1984 when Dethorne Graham got pulled over outside a convenience store in Charlotte, waiting to see whether it matters that Dethorne Graham wasn’t trying to steal anything, that he was just a diabetic trying to get some orange juice.
MATT: Did what happened to your dad affect how you thought of the police, how you thought of police being a Black man?
DETHORNE GRAHAM JR.: Well, you know, believe it or not, it didn’t.
MATT: Why’s that?
DETHORNE GRAHAM JR.: I like to base my opinions based on my own experiences. My dad -- I can say this, Kelly and Matt -- I can remember my dad telling me stories of where he grew up in eastern North Carolina on a tobacco farm in that small town. I can remember him telling me a story of a Black man who had been accused of being inappropriate with a white woman, and how the whites gathered in broad daylight and castrated him in broad daylight.
DETHORNE GRAHAM JR.: And I say that -- in saying that, although he experienced all that stuff growing up and the racism that he experienced growing up, he didn’t teach that to us. He didn’t teach that to us. He taught us to love people for people. So even now, myself, I base my experience of a person, I base my experience of the police based on my dealings with the police, and not that I won’t, but I have yet to encounter a police officer who’s been mean to me, who has been rude to me, who’s mistreated me.
DETHORNE GRAHAM JR.: And that’s the God’s honest truth. But -- but in being completely honest, when I see on the news, like the kid, the 12 year old that had the BB gun?
MATT: Oh, Tamir Rice, yeah.
DETHORNE GRAHAM JR.: Yeah, yeah. You know, examples like this, that -- that does affect me, and that does make me ...
MATT: Does that make you think of your own children? Have you talked to your own kids about ...?
DETHORNE GRAHAM JR.: Of course. Of course. I’ve got a 12 year old at home. He’s got BB guns that looks just like real guns.
DETHORNE GRAHAM JR.: And, you know, but he knows that hey, they don’t leave the house.
MATT: What’s your 12 year old’s name?
DETHORNE GRAHAM JR.: My son’s name is Tanner.
DETHORNE GRAHAM JR.: Yes.
MATT: And when you -- when you talked to Tanner about the fact that, like, the BB gun doesn’t leave the house, I mean, what is that conversation?
DETHORNE GRAHAM JR.: Like, with the Tamir Rice, when he was shot and killed, when the news story came on I paused it, because you can do it with live TV now. Say, "Come here. I want you to watch this." Right now Tanner’s 12 years old. He’s cute, he’s this, he’s that. But the fact of the matter is, in a few short years he will be considered a Black man. Unfortunately, he’s gonna have a target on himself. So hey, those BB guns you got? See this is why you can’t take these out of the house. I don’t want you to take these out of the house. Even if you’re outside in the yard playing and a police should happen to come down the road, hey, drop it. Drop it immediately.
JAD: This story was produced and reported by Matt Kielty with a big assist from co-producer Kelly Prime. 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: Alex Overington and Sarah Qari, with Elie Mystal, Cristian Farias, Linda Hirshman, David Gebel and Michelle Harris. We had production support this week from Derek John and Dylan Keefe. Thanks to Kelly McEvers and Tom Dreisbach from NPR’s Embedded, Ben Montgomery at the Tampa Bay Times, Frank Acock, Leonard Feldman, Cynthia Lee and Joshua Rosencranz. Supreme Court audio is from Oyeh, 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.
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