“One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring Berry’s pleas to get him some sugar.” Another officer said, “I’ve seen a lot of people with sugar diabetes that never acted like this. Aint’ nothing wrong with the MF but drunk. Lock the S.B. up.”
This was how Chief Justice William Rehnquist, of the United States Supreme Court, described the facts in Graham v. Connor, the 1989 case which defined the standard still used in excessive use of force cases involving the police.
Dethorne Graham was a diabetic who was having an insulin reaction. He filed a civil lawsuit in federal court against Connor, a Charlotte, North Carolina police officer, for injuries he sustained when officers used what his lawyer described as excessive force against him during an investigatory stop. He is the “Graham” we’ve heard the lawyers and judge refer to when discussing use of force in the Chauvin trial. As the end of the trial approaches, Judge Peter Cahill will have to decide which language from Graham he will use to instruct the jury on how to evaluate Chauvin’s use of force against George Floyd.
The Fourth Amendment to the U.S. Constitution protects us against unreasonable seizures by law enforcement. In the Graham decision, the court articulated the test to use to determine whether law enforcement officers have used excessive force against a person during an investigatory stop, which is often considered to be a seizure.
The test is this: “Whether the officer’s actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” The court rejected a subjective test which would have examined the officer’s motivations or underlying intent.
In law school we are taught to call a decision by a court the “holding.” That is the rule that other courts and lawyers are expected to follow in cases with similar issues. The author of the court’s opinion, however, usually writes about the court’s rationale for arriving at a specific holding. In Graham, Rehnquist wrote about why the court chose the “objectively reasonable” test. These explanations do not carry the same weight as the holding itself.
Why does that matter? Because there is language in Graham that has found its way into the instructions some judges have given to jurors in excessive force criminal prosecutions. And, that language is much more favorable to police officers than the holding itself. Rehnquist wrote, “The reasonableness of a particular use of force must be judged by the perspective of a reasonable officer on the scene, and its calculous must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.” He also used language from another decision (Terry) which states, “The reasonableness of a particular force must be judged from the reasonable officer on the scene, rather than with 20/20 vision of hindsight.”
This “split second” and “20/20 hindsight” language is not part of the court’s holding. But judges have used it in their instructions to jurors, along with the “objectively reasonable” standard. For instance, the judge in the Yanez case, in which Philando Castile was shot and killed, gave the jurors this very favorable language in his instructions. This may very well be one reason why Yanez was found not guilty.
In every jury trial, the prosecutor and the defense can submit to the judge what are called “proposed” jury instructions. The prosecutors and the defense in the Chauvin trial have asked for specific instructions on the use of force. Once each side has rested (has no more witnesses to call) the judge will have a charging conference (meeting) with the lawyers to talk about which instructions he will give to the jury. Where there are disagreements, the judge will make the final call. Let’s look at the differences in instructions on use of force proposed by each side.
The state has requested the following instruction:
“To determine if the actions of the police officer were reasonable, you must look at those facts known to the officer at the precise moment he acted with force. You must decide whether the officer’s actions were objectively reasonable based on the totality of the facts and circumstances confronting the officer, without regard to his own state of mind, intention, or motivation. The reasonableness of the use of force depends not only on the facts and circumstances confronting the officer at the precise moment he used force, but also on whether the officer’s own conduct during the incident unreasonably created the need to use such force.”
The defense has asked for this instruction:
“The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer at the moment he is on the scene, rather than with the 20/20 vision of hindsight. The reasonableness inquiry extends only to those facts known to the defendant, and not the other officials on the scene or their perception or preference of what should have occurred, at the precise moment the defendant acted with the force he did. The determination of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation under circumstances that are tense, uncertain, and rapidly evolving. In considering the reasonableness of the use of force, the jury may consider whether the force was applied in good faith by the defendant.”
The state has called numerous witnesses from the Minneapolis Police Department, including Chief Medaria Arradondo, to give their expert opinions on Chauvin’s use of force. Each of those witnesses have examined the totality of circumstances facing Chauvin and each testified that Chauvin’s use of force was not objectively reasonable.
During cross examination, the defense asked these witnesses questions about law enforcement being an inherently dangerous profession, and that officers are often called upon to make split second decisions. We’ve also heard references about how easy it is to look at video over and over and apply 20/20 hindsight. This language was included in the instructions for the Yanez case, even though it was not part of the holding in Graham. If you look at defense’s proposed jury instructions, you see they are requesting that Judge Cahill instruct the Chauvin jurors using that same language.
Language matters because the court will tell the jurors that they must follow the law as he gives it to them. The role of the jurors is to apply that law to what they determine to be the facts in the case. We won’t know, until probably later this week, exactly what the judge will tell the jurors about use of force. If he includes the split-second decision and 20/20 hindsight language it would be an advantage for the defense.