‘Reasonable’ use of force? How a Charlotte case could influence jury in Chauvin trial

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While jurors continue to deliberate in the trial of a former Minneapolis police officer accused of murdering George Floyd, the ghost of Dethorne Graham may well be in the room.

Last May, Minneapolis police Officer Derek Chauvin was shown on video kneeling on Floyd’s neck for more than nine minutes as Floyd begged for his life. The victim’s plea — “I can’t breathe” — became a rallying cry in Charlotte and around the world for demonstrations decrying police violence against Black people.

Chauvin was charged with second-degree unintentional murder, third-degree murder and second-degree manslaughter.

After a three-week trial, 12 jurors took over the case Monday evening. Their decision could well hinge on the legal standard arising from a police traffic stop in Charlotte almost 40 years ago.

That standard, known as “objective reasonableness,” could make it more difficult for jurors to convict Chauvin, says police use of force expert Philip Stinson, despite “nine minutes of video in which a man died right before our eyes.”

It all boils down to how the jury defines reasonable. Which brings us back to Charlotte.

From West Boulevard to Supreme Court

On Nov. 12, 1984, Dethorne Graham was a passenger in a car pulled over by Charlotte police Officer W.S. Connor on West Boulevard for Graham’s supposedly suspicious behavior inside a Pilot convenience store a few minutes before.

In fact, Graham, 40, was a diabetic in a desperate search for a bottle of orange juice to quell an insulin attack. He ran out of the store with the juice after seeing a long checkout line. A half-mile down West Boulevard, the car driven by Graham’s friend was pulled over.

By the time officers dropped off Graham at his home later that day, he had a broken foot, a damaged shoulder, handcuff wounds on both wrists, and cuts and bruises to his face from having his head slammed into the hood of a car.

Graham, who died in 2000, was Black. Most of the officers involved in the traffic stop were white.

Graham’s subsequent police-brutality lawsuit made it to the U.S. Supreme Court. The justices’ 1989 landmark ruling establishing “objective reasonableness” remains perhaps the country’s most important standard for assessing the propriety of police behavior.

At the time, Graham and his attorneys, including Woody Connette of Charlotte, hailed the opinion as providing clearer guidelines for holding officers accountable.

Yet today, critics say the reasonableness standard serves as a protective shield that limits the arrests of police. When officers are arrested, it makes convictions harder to get.

Since 2015, police nationally have averaged about 1,000 fatal shootings a year. Since 2005, only 140 officers have been arrested for murder or manslaughter in connection with those on-duty killings. Of those cases, only 44 convictions have occurred, often for lesser crimes, says Stinson, a former cop and now a political scientist at Bowling Green State University.

Stinson says convictions have not increased despite “the ubiquity” of onlooker videos that frequently challenge an officer’s version of events.

“In general, juries are just very reluctant to challenge the split-second decisions of a police officer,” he says.

‘Like reliving the whole thing’: Mom of Jonathan Ferrell says Chauvin trial brings back memories of son’s death

Graham v. Connor

Part of that reluctance clearly arises by the legal guidance from the Charlotte case widely known in law schools and courtrooms as Graham v. Connor.

Under the reasonableness doctrine authored by then-Chief Justice William Rehnquist, any legal review of police actions had to consider “the totality of the circumstances” including “the tense, uncertain and rapidly evolving” circumstances confronting a cop.

Rehnquist’s opinion established a pivotal question: Would a reasonable police officer facing the same set of circumstances respond in the same way?

In another application, police can legally use deadly force if they have a “reasonable fear” for their lives, the lives of fellow officers or those of the public.

The signature language from the Graham case has been a staple of police training for decades. It has also come to dominate legal arguments surrounding police matters in which people die.

“Police know what to say and what to tell a jury and what to tell a judge to make those folks believe that they were reasonably in fear,” Kate Levine, a professor at the Benjamin N. Cardozo School of Law, told the New York Times after Floyd’s death.

“Even if there are other witnesses, those witnesses just don’t get the same amount of credibility determination from prosecutors, judges, juries.”

A CMPD officer killed Jonathan Ferrell in 2013. Charlotte hasn’t forgotten.

In 2015 the manslaughter trial of Randall Kerrick — the first Charlotte-Mecklenburg police officer in at least 30 years to be arrested for an on-duty shooting — ended in a mistrial. Two-thirds of the deadlocked jury said Kerrick reasonably feared for his life when he shot an unarmed Jonathan Ferrell 10 times as the former college football player collided with him. On the witness stand, an emotional Kerrick testified that Ferrell reached for the officer’s gun.

In the Chauvin trial, both sides have laid claim to the reasonableness high ground. Witnesses for the prosecution, including the Minneapolis chief of police, testified repeatedly that Chauvin violated his training by using excessive and prolonged force against a vulnerable and compliant suspect.

“This wasn’t policing,” said Steve Schleicher, one of Chauvin’s prosecutors. “This was murder.”

But drawing directly from the Graham opinion, Chauvin’s attorney, Eric Nelson, in his closing arguments told the jury “to consider the totality of the circumstances,” and that his client had taken “reasonable” steps to restrain a criminal suspect who had taken fentanyl and still posed a legitimate danger to officers.

Barry Brodd, a law enforcement veteran, trainer and police consultant, according to the Wall Street Journal, testified this way:

“I felt that Officer Chauvin’s interactions with Mr. Floyd were following his training, following current practices and training, and were objectively reasonable.”

All the Chauvin testimony, of course, will be pinned against perhaps the most disturbing law enforcement video since the police beating of Rodney King by Los Angeles police in 1991. Prosecutors later used the reasonableness standard to convict two of the officers involved in that case.

Any Chauvin verdict must be unanimous. Stinson ticks off the defense case — that officers on the scene had called EMS to get medical treatment for Floyd; that Floyd may have been high on powerful narcotics, that he allegedly posed a continued threat to officers — to say that it’s possible one juror may find “reasonable doubt” and refuse to convict.

That scenario has precedent. Dethorne Graham’s case was sent back to Charlotte federal court to be retried under the new reasonableness standard.

He lost.

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