Who sets the rules for police use of force? In many ways, the limits are set by case law. In today’s briefing, we bring back a discussion about two U.S. Supreme Court cases that define what police can and cannot do when they need to bring force to bear.Read Transcript
Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.
Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.
Dan: [00:00:17] We think it’s time to invite you in.
Dave: [00:00:19] So, pull up a chair.
Dan and Dave: [00:00:20] Welcome to The Briefing Room.[The Briefing Room theme playing]
Yeardley: [00:00:36] Hey, all you fabulous, fabulous podcast listeners out there, it’s Yeardley Smith. How are you? I am one of the cohosts of the true crime podcast, Small Town Dicks, and I’m a civilian. I am honored to be guest hosting The Briefing Room today because I have questions that I know many of you do too, because we get a lot of mail from you guys, which is awesome. The question I have today is about police use of force. So, there’s no shortage of news and debate out there about what police can and cannot do when arresting a subject.
[00:01:13] And I thought it would be interesting to dig into how those rules about use of force in modern policing came to, because it turns out much of what law enforcement is expected to observe comes from case law and cases that have ended up in front of the Supreme Court. These rulings have very often set the boundaries for a civilian’s rights and a police officer’s responsibility for when the community and law enforcement interact. This is a great conversation. Some of you might have heard it before, but we think this is such an important topic we wanted to share it again. So, let’s get to it.
[00:01:55] Today on The Briefing Room, I have with me, Detective Dan.
Dan: [00:02:00] Hello, team.
Yeardley: [00:02:01] Hello, you. And I have Detective Dave.
Dave: [00:02:04] Hello, Yeardley.
Yeardley: [00:02:06] All righty, Dan. Class is in session. Start us off.
Dan: [00:02:10] So, when we talk about case law, it’s an ongoing curriculum for police officers. It’s a constant update for us. Every year, we have training on new case law and on case law that’s maybe been affected by other decisions. So, for this episode, the two cases we’re talking about here are Tennessee v. Garner and Graham v. Connor. Now, Tennessee v. Garner, this case happened in 1974. It wasn’t ruled on until 1985 by the Supreme Court. But this case has to do with the right of the police to shoot a fleeing felon. So, we’ll talk about that one.
[00:02:52] The other case is Graham v. Connor. This case was ruled on by the Supreme Court in 1989. What this case did was it created a three-pronged test for officers’ use of force decisions.
Dave: [00:03:08] It’s the basis of how officers are judged in use of force situations today. These two cases are landmark decisions that have survived all kinds of challenges over the years going through, being reevaluated by the courts. They’ve all been affirmed. These are solid decisions and they’re not going anywhere. This is how cases are evaluated by district attorneys who are examining whether or not the police used a reasonable amount of force.
Dan: [00:03:40] What these two cases revolve around is reasonableness. And that’s a word that we use in law enforcement quite frequently. Every use of force has to be reasonable. When we talk about how officers react and the decisions they make, we use the reasonableness test to gauge, whether or not a similarly trained officer with similar experience would make decisions similar to the officer in question. So, these cases and other cases provide a framework for how police officers do what they do out on the street every day. The first one I want to talk about is Tennessee v. Garner.
Judge: [00:04:25] We’ll hear arguments first this morning in Tennessee against Garner.
Dan: [00:04:29] This happened in Tennessee back in 1974.
Lawyer: [00:04:32] On the evening of October 3rd, 1974, the police received a call to come to the scene of what was an apparent breaking and entering.
Dan: [00:04:42] These officers arrive at the house. One of them goes behind the house and he sees a suspect running across the yard. He gives chase. The suspect encounters a six-foot-high chain link fence. The officer afterwards says, “I didn’t believe he was armed.” That’s important. He confronts the suspect, whose name is Garner. His last name is Garner. Garner disregards the officer’s commands to stop and comply. Garner does not comply. Garner begins going over the fence. The officer pulls out his weapon and shoots Garner in the back of the head, and it kills him.
Lawyer: [00:05:28] There are two issues in this case. The first deals with the constitutionality of a state statute with regard to the use by a police officer of all necessary means to effect an arrest. The second is whether the municipality’s use of deadly force to apprehend a fleeing burglary suspect after exhausting all other reasonable means is constitutionally permissible.
Dan: [00:05:57] Back then in Tennessee, they had a state statute that you could shoot fleeing felons. Even in the state that Dave and I worked in, there was a fleeing felon statute that you could use deadly force. That statute is trumped by this case law, Tennessee v. Garner.
Dave: [00:06:14] Because this is Supreme Court case law.
Dan: [00:06:17] Yeah, this is supreme court case law. It actually went through a few lower courts. And basically, the suspect in this case, he was 15 years old, he gets shot in the back of the head, and he dies on the way to the hospital. They find $10 and a purse in his possession that were taken from the house during the burglary. And police officers, now, we recognize this use of force as being completely unreasonable that you can’t just shoot somebody, because they’re running from you. But this is the case law that really set that.
Yeardley: [00:06:55] Just to be clear, because of this case, Tennessee v. Garner, you are now no longer allowed to just shoot a fleeing felon. Is that so?
Dan: [00:07:07] Correct.
Yeardley: [00:07:08] Okay.
Dan: [00:07:09] The Tennessee statute back in 1974 stated, “If after notice of the intention to arrest the defendant, the defendant either flees or forcibly resists, the officer may use all the necessary means to affect the arrest.”
Yeardley: [00:07:26] So, that would include everything.
Dan: [00:07:28] That’s pretty all-encompassing right there.
Yeardley: [00:07:31] Yes. But one would assume that you would try several other tactics, all the other tactics to stop the fleeing felon before you resort it to deadly force.
Dan: [00:07:42] Yeah. The suspect’s father brings suit and says that this was excessive force, and I agree. At first, the courts side with the police, and the prosecution, and the State on this and say, “No, we have a statute that says he can use any means to affect the arrest.” It then goes to the Court of Appeals. And the Court of Appeals says, “The killing of a fleeing suspect is a seizure for the purposes of the Fourth Amendment.”
Yeardley: [00:08:15] Can you explain what that means?
Dan: [00:08:17] The Fourth Amendment has to do with search and seizure. The Fourth Amendment is why we have to write search warrants for properties, when someone has a right to privacy in that dwelling.
Judge: [00:08:27] The narrow question presented is whether a state law authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape constitutes an unreasonable seizure of the person.
Dave: [00:08:39] The broader definition of seizure is basically, if I arrest you, that’s a seizure. If I put my hands on you, that’s a seizure. Even if I limit your movement without putting my hands on you, like, detain you by giving you a verbal command, stop right there, sit down, I am seizing you at that moment. So, when you shoot somebody, you have now disabled their ability to get away, and you have effectively seized them for all intents and purposes. So, that’s what we mean by seizure.
Dan: [00:09:13] So, the Court of Appeals ruled in this case that the killing of a fleeing suspect is, in fact a seizure, but it’s only lawful when it’s reasonable.
Yeardley: [00:09:23] Okay.
Dan: [00:09:25] It’s only constitutional when it’s reasonable.
Dave: [00:09:28] You’ve got, in this case, the officer admitting that he recognized this suspect is not armed and did not believe him to be armed. So, this officer knows that this person is not armed with a weapon, but that officer is also covered by this then existing statute in Tennessee, which says, “You can shoot a fleeing felon.”
Dan: [00:09:54] This case eventually goes to the Supreme Court, and the Supreme Court basically says, “The use of deadly force against the subject is the most intrusive type of seizure possible, because it deprives the suspect of his life.” And I think we’d all agree on that.
Yeardley: [00:10:07] Yes.
Dan: [00:10:08] The majority opinion of the court held that the State failed to present evidence that its interest in shooting unarmed, fleeing suspects outweighs the suspect’s interest in his own survival.
Yeardley: [00:10:21] So, can you say that again, please?
Dan: [00:10:23] The majority of the court held that the State failed to present evidence that its interest in shooting unarmed, fleeing suspects outweighs the suspect’s interests in his own survival.
Yeardley: [00:10:34] Right. So, it goes back to that word, reasonableness.
Dan: [00:10:39] Yeah. To me, it’s pretty obvious that in this situation, that’s inequitable.
Yeardley: [00:10:45] Right. That–
Dan: [00:10:47] That you can shoot somebody, just because they’re running from you.
Yeardley: [00:10:50] Yes.
Dan: [00:10:51] Yeah. Anytime we talk about use of force, we’re going to talk about reasonableness. I mean, we could talk about this case for a long time, and a lot of it had to do with common law, which common law goes way, way, way, way back. I mean, we’re talking about, like, English common law, right? So, it’s antique law is really what it is. I think we’ve evolved.
Yeardley: [00:11:14] I really want us to have evolved.
Dave: [00:11:17] At least, the law has. Not the mammals.
Yeardley: [00:11:20] Fair.
Dan: [00:11:21] The dissenting opinion in this case was actually from Justice O’Connor, which I find a little surprising.
Yeardley: [00:11:27] Sandra Day O’Connor?
Dan: [00:11:29] Yeah.
Sandra: [00:11:30] Do you think that it really is unreasonable under the Fourth Amendment for an officer who would tell an experienced adult, burglar, stop or I’ll shoot, you think the Fourth Amendment prohibits that? You think that there’s no room there for saying that the person who refuses to heed that warning is knowingly giving up any right to have alternative action taken?
Lawyer: [00:12:04] No, I don’t think that the Fourth Amendment should allow such a shooting. I think that unless the state interests require it because of the interest of protecting the public, the Fourth Amendment would bar that shooting. The officer may have other alternatives. He should run after him, he should call in assistance, he should investigate the scene. It does not invariably follow. If the person gets away, he’ll never be caught. Although that may often be the consequences. It’s not always the consequence.
Dan: [00:12:31] So, in her opinion, she highlights the fact that police officers must often make swift, spur of the moment decisions while on patrol, and argued that the robbery and assault that happen in the home are related to the already serious crime of burglary, which we can agree. I think burglary is a serious crime, especially at a residence.
Dave: [00:12:52] Was this an occupied dwelling?
Dan: [00:12:54] It doesn’t say anything in here. I don’t believe it was occupied at the time. Justice O’Connor mentions the robbery inside the house, and I’m thinking, was there some sort of confrontation inside the house? It doesn’t change what happens at the fence, especially when the officer says, “I didn’t believe the suspect to be armed,” right there is a huge cut-off moment for this case.
Yeardley: [00:13:18] Right. Your life as an officer is not in danger. The kid is just trying to get away from you. So, that seems massively excessive. I know we’ve said it many times, but I already can’t remember the difference between robbery and burglary. One has to do with people involved and one does not, correct?
Dave: [00:13:38] Yeah. So, robbery is, I forcibly, or by threat of force, or intimidation, take something from you.
Yeardley: [00:13:48] So, you encounter me.
Dave: [00:13:50] Right. A burglary is I break into a house, there’s nobody around. Even if there is somebody around who’s sleeping on the couch, there’s no interaction between me and the other person. So, burglary is considered a property crime, because you’ve just broken into a premise, like a building or a house. A robbery is a person crime, because you are physically either intimidating, threatening with a weapon, or you’re fighting with a person. So, robbery is people on people. Burglary is a property crime.
Yeardley: [00:14:26] Okay.
Dan: [00:14:27] So, when you get down to brass tacks about what this decision did for police officers is, it established that the reasonableness of an officer’s use of force, whether against a fleeing suspect or otherwise, is to be determined from the perspective of the officer under the circumstances that were apparent to him or her at the time. So, like, we touched on earlier, did not observe a weapon, had clear view. The officer had a flashlight and was face to face with this suspect before the suspect turned to flee, and the officer said, “No, I didn’t believe he was armed.”
Yeardley: [00:15:05] Also, he was 15.
Dan: [00:15:08] Well, the officer actually estimated this kid’s age to be 17 or 18. Now, I’ve seen kids that I swear to God were 20 years old that were only 14 or 15 years old, because they’re 6’2″. And unless you’re talking about there’s just an obvious discrepancy of what you’re looking at. An eight-year-old kid, I don’t think anybody’s going to mistake an eight-year-old for an 18-year-old. But a 15-year-old, I can see that.
Dave: [00:15:36] Especially one bold enough to go commit a burglary. Like, you want to play adult games? You’re in the adult arena now, and there are consequences. Not to say that Mr. Garner deserved what he got, but you open yourself up to a series of circumstances that are now out of your hand.
Yeardley: [00:15:55] If you’re going to break into somebody’s house, there is a chance that these harsh consequences will happen to you.
Dave: [00:16:04] Right. There are bad things that can happen when you put yourself into that circumstance.
Dan: [00:16:25] So, there’s another one here, and it’s Graham v. Connor. This guy, Dethorne Graham goes to a convenience store with a buddy. He is feeling a little off because he’s diabetic and he feels like he’s having an insulin reaction. So, he’s going to go get some sugar to even him out. And he goes inside the store, he looks and he goes, “The line’s too long. I’m leaving.” He returns to his friend’s vehicle, they drive away from the store, and Officer Connor, a police officer saw Graham’s behavior and became suspicious. So, Officer Connor pulls Graham and his friend over, and during the encounter, the officer tries to detain Graham, and Graham resists arrests and is injured, breaks his foot. He’s got some cuts on his wrists, he’s got a bruised forehead, and he injures his shoulder during this scuffle.
[00:17:26] So, he files a federal lawsuit against the officer, basically alleging that the use of force during the stop was excessive and violated his civil rights. So, it eventually went to the Supreme Court.
Judge 2: We’ll hear argument next to number 87-6571, Dethorne Graham v. MS Connor.
Dan: [00:17:49] Again, we’re talking about reasonableness, this word that is a character in our lives as police officers’ reasonableness. The Supreme Court held that determining the reasonableness of a seizure requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. So, putting a grabus on someone as a police officer, there’s a reasonableness test that you must put. Is it reasonable that I use all means of force necessary to effect an arrest? It’s similar to Tennessee v. Garner.
Lawyer: [00:18:28] To quote this court in Tennessee v. Gardner, reasonableness depends not only when a seizure is made, but also how it is carried out.
Dan: [00:18:37] The court basically said, “Given the facts known at the time, would a similarly trained and experienced officer respond in a similar fashion as Connor did?”
Yeardley: [00:18:47] That’s the question they’re asking.
Dan: [00:18:49] Yes.
Lawyer: [00:18:50] Both courts held the respondents conduct was objectively reasonable, considering the need force, the amount of force used, and the extent of the injuries that petitioner has alleged.
Judge 2: [00:19:01] Well, what reason was there for handcuffing a diabetic in a coma?
Lawyer: [00:19:07] At the time, the officers didn’t know that he was a diabetic in a coma.
Judge 2: [00:19:13] Did he have a weapon of any kind?
Lawyer: [00:19:15] The record doesn’t indicate, I don’t believe.
Judge 2: [00:19:17] The record didn’t show he had a weapon of any kind.
Lawyer: [00:19:19] That’s correct. But the record– [crosstalk]
Judge 2: [00:19:20] Why was he handcuffed?
Lawyer: [00:19:22] 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, that Mr. Barry asked for Officer Connor’s help. Mr. Barry so said, he said, he didn’t know what was wrong with petitioner. It might be an insulin reaction, a sugar reaction. He’d never seen one. He was scared. He didn’t know what to do. He asked for Officer Connor’s help. He testified that petitioner was throwing his hands around. The District Court stated without contradiction that when the backup officers were arriving, a scuffle started. At that point, the officer sought to put the handcuffs on petitioner. He resisted the handcuffs. He threw his hands around more. Indeed, 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, resisting getting into the car.
[00:20:12] The District Court and the Court of Appeals both commented on that. Given his resistance, even after he was handcuffed and given the crowd that was gathering and getting out of hand, the police were reasonable in deciding that they needed force to overcome his resistance, and that they needed to get him into the car quickly, and out of the hostile environment.
Dan: [00:20:30] So, what the Supreme Court did is, they came up with, there are three questions that you answer as an officer when using force.
Dave: [00:20:39] It’s called the three-prong Graham test.
Yeardley: [00:20:42] Okay. What are the three questions?
Dave: [00:20:45] The severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by fleeing. So, you have to take those things into account. Again, this all comes down to reasonableness and why the courts and district attorney’s offices are unable to Monday morning quarterback based on case law like Graham v. Connor and Tennessee v. Garner is that, police officers are judged in the moment, not with the benefit of hindsight. Basically, you have other officers as a reasonableness standard is would another officer with the same amount or similar training, with similar experiences in that situation, would they have acted similarly to the way this officer acted and is that reasonable?
[00:21:51] Police officers in the heat of the moment making split second decisions. When I say split second, we’re talking life could be gone in one second, if I don’t do this or if I do this. It’s not fair to judge people if you weren’t there. So, I can’t stress that enough. It’s what the officer is experiencing at the time, not what me on my couch watching the news later that night or a day later. I’m not qualified to judge that man. I can make a judgment on the reasonableness of the use of force based on, do I have similar training, do I understand that moment, do I understand all the outside factors that go into the totality of the circumstances right in front of this officer?
Dan: [00:22:47] Which is the importance of the three-prong test. So, the severity of the crime at issue, did this guy steal a pack of Skittles? Now it’s quite different if this person is a kidnapper, right? Whether the suspect poses an immediate threat to the safety of the officers or others. Now, another way to look at that is, what if this person gets away? That’s also a threat to others, correct? So, I would go back to in Season 2– [crosstalk]
Yeardley: [00:23:18] Monster.
Dan: [00:23:19] Monster. Now, if that kidnapper would have gotten away, does he pose a threat to the public? Hell yes, he does.
Yeardley: [00:23:28] And to that little girl.
Dan: [00:23:30] And to that little girl. We cannot let him get away. So, were they justified in using deadly force against him? They didn’t, but I think they were justified if they would have. If there was only one police officer and this guy is running through the forest with this girl trying to get away or the girl is safe now and the guy’s still trying to get away, but he’s running toward a neighborhood, I would say that guy poses an immediate threat to the public.
Yeardley: [00:24:00] And the third tenant is–
Dan: [00:24:03] Whether he’s actively resisting arrest or attempting to evade arrest by flight.
Yeardley: [00:24:08] So, that’s combined with number two in this particular case, if he’s trying to get away.
Dan: [00:24:13] Yes. And particularly, when I was a canine officer, these factors would go into decisions I made on whether or not I was going to deploy my dog or how I was going to deploy my dog off leash on a long line on a 6-foot leash on a 12-foot lead. My long line was 25ft. All of these factors, whether or not I was going to muzzle my dog.
Yeardley: [00:24:38] Meaning, literally keep him from biting a suspect.
Dan: [00:24:42] Yeah. One of the questions I would ask officers when I went to assist them if I was going to deploy my canine was, “Do you have PC for a crime right now and what is that crime?” I’ve got theft three. It’s a shoplifter who ran from Walmart and he ran northbound. Go find him. If I see that suspect running from me, I’m not going to just dog him. I’m not going to send my dog on him because I’ve got a petty theft. So, this case right here is the test that directed me on how I made decisions as a canine handler.
[00:25:19] Now, there was another case where it was an armed robber who was running from me, and I sent my dog on him, and my dog bit him and caused quite a bit of damage to the guy’s leg, because he was trying to pull his leg out of my dog’s mouth and he had some damage to him. But I was absolutely justified in sending my dog on that guy.
Yeardley: [00:25:43] And why is that?
Dan: [00:25:45] It’s an armed robbery. The severity of the crime is, that guy, he poses a threat to the public if he gets away. He honestly said to me, “I didn’t think your dog was going to catch me before I got to that fence.” My dog got him.
Yeardley: [00:26:01] [giggles] Your dog is always faster.
Dan: [00:26:03] 35 miles an hour. It’s pretty quick [Yeardley laughs] through an empty parking lot.
Dave: [00:26:08] Land sharks. This is important. We go back to the Kilcullen Episode.
Yeardley: [00:26:14] Sure. The Small Town Dicks episodes we called End of Watch.
Dave: [00:26:18] Right. I remember being in that pursuit, I knew that were going to chase that car forever. Regardless of the suspect’s driving behavior, which driving behavior and circumstances, the time, the location of where the pursuit is either heading towards or going through is why we terminate pursuits, because the juice isn’t worth the squeeze. We’re putting the public in more danger than it’s worth to arrest the fleeing suspect. Even though, it’s a felony. It’s a felony to elude the police.
[00:27:02] In that case, in Kilcullen case, I knew that were going to chase that car until it ran out of gas or until something happened. In the mountains where we were, I was the only vehicle that had any radio reception. I don’t know how that happened, but my car’s radio is the only one that was working for our agency. When I heard that Officer Kilcullen had been shot, I knew this was a deadly force situation.
Yeardley: [00:27:34] You mean you knew that you might have to use deadly force?
Dave: [00:27:37] Right. And that James, who is the first officer behind suspect’s car, I knew he can ram her off the side of the hill, because if the use of force is justified, the resulting injuries are inconsequential. There’s case law about vehicles being pursued and using pit maneuvers on vehicles that are going at high rates of speed, that it’s inherently a deadly use of force with your vehicle to spin a suspect vehicle at high speeds, because there’s a great chance that someone’s going to get seriously injured or killed.
[00:28:16] In that situation, I knew that James could push suspect right off the side of the hill. It’s a creative way to end that situation and make sure that this person who just shot a police officer does not get away. James had a ride along with him that night, and James was a little bit worried that he might put himself off the side of the road too. So, James did a great job. Once that pursuit ended, we came to the top of a logging landing, and there’s literally gravel ends and the forest begins. There’s nowhere for suspect to go. That allows us to slow things down. She’s not fleeing anymore. So, the circumstances changed. But it was important for me, when I heard that the officer had been shot that other people in our stack of cars following suspect need to be aware of that, because it changed the rules of engagement that now I know that I can shoot this person if they’re trying to get away from me, because that person is a danger to the public, has just killed somebody, and is actively trying to get away.
[00:29:35] Situation just did not present itself. The circumstances weren’t there. I’ve been asked many times, “I can’t believe, why didn’t you shoot her?” Wasn’t there. It was never there for me to pull the trigger and shoot this suspect, because I did not feel scared for my safety or the others that were with me. To have the number of guns that were pointed at her after she just killed one of our brothers, for her to not get shot, it shows how professional the brothers and sisters that we were up on that mountain that day. Exceptional. Exceptional folks. All did it the right way.
Dan: [00:30:17] I get the same question. You weren’t there.
Yeardley: [00:30:21] So, it works both ways. You weren’t there to know why we didn’t shoot her. And in a situation where somebody does get shot, you weren’t there.
Dan: [00:30:30] Yep. 2020 Hindsight.
Dan: [00:30:47] So, this case right here, Graham v. Connor is especially important. This is a three-prong test, right? Severity of the crime, whether the suspect poses an immediate threat to the safety officers or others, and whether or not, he or she is actively resisting arrest or attempting to flee. So, some big cases recently that this case law has been a part of is the shooting of Michael Brown in Ferguson, Missouri, the shooting of Alton Sterling in Louisiana, and the Derek Chauvin-George Floyd case in Minneapolis. Is it reasonable for Derek Chauvin to have his knee on George Floyd’s neck for eight plus minutes? No, it’s not. It’s not reasonable.
Dave: [00:31:36] And it’s not even close.
Dan: [00:31:39] When you look at it through the lens of reasonableness, officers who have been trained in those situations and have similar experience say, “That’s not reasonable.”
Dave: [00:31:49] And it’s exceptionally important for people to realize, this is in the eyes of an officer, a similarly trained officer with similar experience in the same situation. It’s not a similar citizen, it’s not a similar civilian. I need to be judged based on how other officers would have interpreted that situation. Is it reasonable?
Dan: [00:32:19] There was a case several years ago now, and I think it was in South Carolina, where a man had run from a traffic stop, and the officer shot him in the back and killed him. I remember watching, because there’s actual video of that shooting. I remember watching that video before I knew any of the facts of the case, and I was like, “That looks unreasonable to me. You were losing the foot chase, so you just shot him, and the guy was merely running from a traffic stop?” Mm-mm.
Dave: [00:32:52] It’s not reasonable.
Dan: [00:32:53] It’s not reasonable.
Yeardley: [00:32:54] Right. It’s so interesting and complex.
Dave: [00:32:58] Ahmaud Arbery, one of the persons convicted is a former investigator for the district attorney’s office there. Not employed at the time, was retired. But was any of that reasonable? You call the police. It’s that simple. These guys created their own emergency by chasing Ahmaud Arbery down.
Yeardley: [00:33:22] And then blocking its way.
Dave: [00:33:24] Yeah. And approach him with a shotgun? You just look at it and you’re like, “I’m done. This was unreasonable a long time ago, and now this happened.” Totally unreasonable.
Dan: [00:33:38] The Ahmaud Arbery case sounds circumstantially very similar to Tennessee v. Garner.
Yeardley: [00:33:46] Well. And also, Zimmerman and Trayvon Martin.
Dan: [00:33:49] Yeah. They said in the Ahmaud Arbery case that he was burglarizing a house that was under construction, and he was running, and then they shot him. So, similar to Tennessee v. Garner, where Garner got shot in the back of the head trying to go over a fence after the officer had already said, “I didn’t think he had a gun on him. I didn’t think he was armed.” So, I know that the three defendants in the Arbery case probably claim that, “Oh, we thought he probably was armed.” But I think justice has been served in that case.
Yeardley: [00:34:26] Yeah. Do you consider Connor’s stop on Graham to be to meet that threshold of the three-pronged Graham test?
Dave: [00:34:37] I understand with the benefit of hindsight, which we’re not supposed to use. Can I put myself in that officer’s shoes without knowing everything that officer is experiencing? I can understand why he was interested in what was going on with Graham. I understand that. It makes sense to me. It seems reasonable that he would be curious as to what Graham was up to. So, I understand where he’s coming from there.
[00:35:10] It’s also why in those types of situations, I would also make sure that I had additional probable cause to make the traffic stop. Did they have violations on the vehicle? In that situation, would I follow that car and without additional PC, would I pull that car over? I probably wouldn’t. I’d be like, “Oh, okay, I don’t know what he’s got. We don’t have any call from the store saying, ‘Hey, somebody just shoplifted from us.”‘ That would be additional information. That would be, now you’ve got a righteous stop.
[00:35:47] Absent that, for me personally, I would probably just follow that car, try to get my own PC for a traffic violation, and then do a traffic stop, so I can lawfully contact with the benefit of having additional PC to make the stop on the car. That’s me personally. There’s so much gray area. It’s not black and white like people want it to be or that cops would want it to be. You operate in these gray areas and you have case law that either supports what you’re doing or case law that says, “No, you can’t do that.” These situations are not very complicated. Even simple situations like this, they are nuanced and they’re complicated, but that’s why these cases are so important to the police.
Yeardley: [00:36:45] Yes. I think the thing that always strikes me about when we talk about use of force, because we do talk about it, not on the podcast, right, because we talk about everything, and there are viral videos. It seems, like, every 10 minutes. I think what probably I feel like, “Okay, I understand it, but I can’t really grasp, because I haven’t had the exact experience” is how much information you need to process in a split second. You need to meet that three-pronged threshold, but you have less than a second to figure out if you got there.
[00:37:22] As you said, Dave, it’s complicated and it’s nuanced. I love this conversation. I thank you so much for your candor, for doing what you do, and I think we could pick up where we left off in a future episode. Fabulous, fabulous podcast. Listeners, thank you so much for letting me take over the hosting chair today. It’s been an honor and great fun, and we will see you next time.[music]
Yeardley: [00:37:53] The Briefing Room is produced by Gary Scott and me, Yeardley, Smith and coproduced by Detectives Dan and Dave. This episode was edited by Logan Heftel, Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel, and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts and thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.
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