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Radiolab Presents: More Perfect - Mr. Graham and the Reasonable Man

Thursday, November 30, 2017 - 03:41 AM

This story comes from the second season of Radiolab's spin-off podcast, More Perfect. To hear more, subscribe here.

On a fall afternoon in 1984, Dethorne Graham ran into a convenience store for a bottle of orange juice. Minutes later he was unconscious, injured, and in police handcuffs. In this episode, we explore a case that sent two Charlotte lawyers on a quest for true objectivity, and changed the face of policing in the US.



The key voices:

  • Dethorne Graham Jr., son of Dethorne Graham, appellant in Graham v. Connor
  • Edward G. (Woody) Connette, lawyer who represented Graham in the lower courts
  • Gerald Beaver, lawyer who represented Graham at the Supreme Court
  • Kelly McEvers, host of Embedded and All Things Considered


 The key case:


Additional production for this episode by Dylan Keefe and Derek John; additional music by Matt Kielty and Nicolas Carter.

Special thanks to Cynthia Lee, Frank B. Aycock III, Josh Rosenkrantz, Leonard Feldman, and Ben Montgomery.

Leadership support for More Perfect is provided by The Joyce Foundation. Additional funding is provided by The Charles Evans Hughes Memorial Foundation.

Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell.


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Comments [52]

Peg Cherre from Rochester, NY

I love Radiolab and More Perfect, and unlike many other listeners, I found this episode to be very well done. Am recommending it to friends and family. What is 'reasonable'? What standards do the courts use? How are juries instructed? Are the answers to those last 2 questions, in fact, reasonable? Should the standard be changed? While I don't necessarily agree with the person who suggested the officer must be 'in fact' correct or go to jail, the whole concept of reasonableness being redefined is definitely worth consideration.

Although it should not matter, I am an older white woman who is sick about the way we treat blacks in this country, men and women.

Apr. 19 2018 12:20 PM
DH from Alexandria, VA

Not fair or balanced. I am surprised you mentioned halfway through that most police killings are of white people. Why didn’t you open the podcast with that important fact? Jad, we all know why, it won’t sell, and you are biased.

In 2017 there were twice as many whites killed as blacks and almost as many Hispanics. Not many seem to care about this fact.

I’m not trying to justify the killings but I can say with certainty there would be fewer killings if suspects would sometimes comply with police commands.

Mar. 24 2018 09:31 PM
Mike from NJ

I like radio lab, however the clear bias in this episode is concerning. The police shootings you rattled off as "unarmed" black men being shot for no apparent reason (as you would lead your audience to believe) is false and misleading. Some cases involved the men having an illegal weapon on them and some were resisting arrest / fighting back. The argument that more black men are killed at a higher rate as white men may be based on the fact that a disproportionate amount of black men are responsible for the crime rate hence more interactions with police officers... something you failed to acknowledge.

Mar. 09 2018 06:48 AM
Michael Monagan from Culver City

Frustrating that the issue of the job of being a cop is never discussed. That is, what you have signed up for. Being a cop is a DANGEROUS job! You work with dangerous people. What would make a normal citizen afraid is not what should make you afraid. Everything is this podcast is looked at as though the cops are just ordinary people but they're not. They are (or should be) highly trained individuals who carry guns! There is nothing ordinary about that. Just because someone is running at you, or reaching in their pocket does not mean that you can start firing. If you don't want to operate to this higher standard then you should find a different job. I was disappointed that this issue was never raised in the story as it seems to me to be at the crux of the matter. Man up!

Jan. 29 2018 04:08 PM
Ken from Minnesota

Big fan of the podcast, but terribly disappointed in this episode. The legal commentator was bizzare, advocating emotion over reason and pretty much demonstrating what's wrong with our discussion of such issues. Also, do you really want to abandon a standard based on reasonableness for a post-hoc "totality of the circumstances" test? How can anyone be expected to react to things they don't know? And if you want the totality of the circumstances to come in, then are other facts not known to the officer relevant? Like the criminal record of the person involved in the incident--even if not known to the officer? Like that person's past history of violence--even if not known to the officer? Like the person's mental health history--even if not known to the officer? It's the current legal standard that makes those facts generally inadmissible (there are exceptions).

I also think blaming the tragic outcomes on the officers shows a lack of imagination. These individuals often work in areas where there are dozens, sometimes hundreds of murders and hundreds of violent crimes every year. They respond to the calls related to these crimes. These officers meet both the profoundly dangerous and the wholly innocent every day. It's a dangerous and threatening job and officers are killed by criminals in every state, nearly every year.

I think the real explanation for the outcome of these cases is not the legal standard, but the jury system. People don't want to convict these officers. The testimony of the officer on the stand weeping was compelling. He was involved in a tragedy. The reason that juries don't convict is because they believe officers' versions of what happened, believe they did not intentionally do anything wrong, and believe that they are often deeply remorseful. These verdicts of acquittal are ordinary people saying that the officers involved are ordinary humans placed in a difficult job and that these officers are worthy of our understanding and sympathy. It's my belief that the people working on this epispode would be the first to acquit the officer who was crying on the stand. They would see that he is human, understand the difficult job that he had, and acquit.

My thought is that focusing on the heartbreaking cases where things go wrong--the exceptional cases--and making them emotional flashpoints tears us apart and accomplishes the exact opposite of what we want. And the fiery emotion of your legal commentator, who appears to dismiss all reasoning and logic in favor of a discussion of what he wants (as he did in the internet debate), demeans the social discourse and the quality of your show.

It seems to me that the team that put this show together wants to go to what they think will be a better place and are willing to abandon "reasonableness" and logic to get there. And query: Does turning up the tension between police and citizens during every encounter--something all the rage now--result in a net societal good?

Jan. 19 2018 11:36 AM
Nathalie Azuaje from Montreal

It is NOT reasonable for a police officer to be afraid.
How reasonable would it be for your surgeon to be afraid while their performing surgery on you? Would you trust your surgeon?
How reasonable would it be for your high school teacher to be afraid of you? Would you expect her teaching to be effective and competent?
FEAR is NOT a reasonable response to ANY situation. A police officer who is afraid should not be a police officer, he should be a mail man.

Jan. 16 2018 10:17 AM
Nathalie from Montreal

The whole concept of the reasonable man in the way it is taught to police officers and used to defend them is a transversion of the original concept. A reasonable, competent and properly-trained police officer would be expected to stay calm and collected during his duties, to not respond based on fear or panic, to not let another person's state of panic put them in one, and to use time wisely so as to not kill an innocent person.

Jan. 16 2018 10:09 AM
K Allen from Wisconsin

Horrible podcast. Love Radiolab but this was tripe. Your liberal leanings we’re all over this. Didn’t talk to one cop and instead went to Calibre Press training? They are a joke amongst law enforcement on the Midwest. Stick to science, your political stuff is so biased it’s pathetic.

Jan. 14 2018 08:17 PM
Ben from warrenton

>tell me how a 12-year-old playing with a toy gun rises to the level of it being reasonable for a cop to shoot him. Now imagine that the 12-year-old was white, and then tell me again.

I learned how to shoot a gun at about 5 years old and was hunting from 7 years old onwards.

A 12 year old is more than capable of killing someone with a gun as we see in gang disputes all the time.

Regardless of race.

If they couldn't tell it wasn't a gun, then it might as well be a gun.

Jan. 11 2018 02:08 PM
Damien Willis from New Mexico

Who was the woman who said, "I will not bring charges against a policeman?" I've searched for it on YouTube and cannot find it. I'd be curious to know, because the Governor of NM is indicating she'd like to extend immunity to all law enforcement officers.

Jan. 10 2018 08:06 PM

I personally think the first priority should be to stop these things happening, not to prosecute the cops. To that end I don't understand why there aren't 2 aspects to each case, the first part should be did this person deserve to get mistreated or killed, if not then that is a failure in policing and the police department should be held accountable in some way. Then the second part of the case can be did this particular officer make the correct decision and if not punish him.

Basically make the police force like any other workplace, if the employee follows the rules of the company but still causes injury to a third party then the company is at fault. That's the only way I can see to stop this fear of survival that is driving cops' decisions.

Jan. 03 2018 11:40 AM
Dale (from Canada) from Halifax Canada

This episode was excellent. I was particularly intrigued by the short poem that was used to summarize the basis of the need for the concept of a "reasonable man". Was this written in support fo the episode or sourced from another author... I would like to read it in its own rite if possible. Is further information available?

Dec. 22 2017 07:22 AM
Maura from Ketchikan, AK

Malcolm Gladwell wrote an interesting section on the likelihood of an officer to shoot in his book "Blink." There are training methods that help reduce that likelihood, so maybe the "Reasonable Officer" needs to be reevaluated as one who has undergone training and practiced methods to avoid the impulse to shoot first.

Dec. 17 2017 02:24 PM
Michael from St. Louis

excellent episode! It does a great job putting us in the mind of both the police officers and the victims, showing that there is certainly a lot of grey area. My only issue is with the commentary of Elie Mystal. I dont understand how a show that is attempting to be unbias can have "legal editor" who is biased to the point that is opinion is border-line incoherent.

Dec. 17 2017 09:08 AM
Jim from Minneapolis

After the shooting of Justine Ruszczyk one has to ask... can any officer shoot any person for any reason?

Dec. 15 2017 02:30 PM

To ask what a reasonable person - someone capable of informed, aware judgment calls - would do in a given situation is to ask what someone in full command of their intellect and therefore with full command over their emotions would do, someone who could subjugate her emotions to her intelligence in a dicey split-second situation - admittedly, a pretty rare person, but that’s why not everyone is a cop, right? So, instead of simply asking if the officer was fearful at all, the question might be, was the officer reasonably or unreasonably fearful?

Sure, reasonably fearful is a much higher standard, because it takes into account the “totality of circumstances” and asks whether the officer was making an informed choice, a choice based on knowledge (“he pulled a gun out and pointed it toward me”) or an uninformed choice, based on ignorance (“I wasn’t sure what he was reaching into his jacket for - it could have been a gun”). But no "reasonable person" would become a police officer without being aware of the risks she is taking regarding her own life and the lives of others. If you agree to this enormous responsibility, part of that agreement is to a higher standard regarding your fearfulness than that of a civilian in similar circumstances. Turning out to be a worse judge of your own character than you thought - oh wait, actually I DO get scared and overreact just like an average civilian!, or more charitably - oh wait, being on this job is super stressful and has frayed my nerves in tense situations! - is a much more suspect basis of acquittal.

It would seem, then, that to successfully prosecute officers who use deadly force without justification under current standards, you would have to attack the “reasonable officer” paradigm and emphasize that a reasonable officer, being unavoidably aware of her unique privilege of responsibility, is not a reasonable civilian (hairdresser, shopkeeper, neuroscientist, etc.).

Dec. 15 2017 03:04 AM
john brand from Escondido, CA

You guys are great!! Can't tell you how much I love listening to your show. This was one of many that advanced my comprehension of various issues. Thanks so much.

Dec. 14 2017 01:20 AM
IV Liberty from California

Thank you Jad and the rest of the team for continuing to tackle this issue. Here is the problem that it seems everyone wants to ignore: How about the victim? How about what he sees and his interpretation of events? If a police officer is attacking you, is it reasonable for the victim to just acquiesce? Psychology 101 says fight or flight is a human response.

I have been attacked several times by police without cause. I always tend to look suspicious to a police officer which is nothing but a euphemism for being black. This amounts to cruel and unusual punishment to constantly be subjected to this type of unjustified scrutiny.

I have an appeal that has been pending for over 4 years. "Justice" moves slowly. There is no one to protect the people who are targeted by police.

Dec. 13 2017 07:41 PM
LOL from Michigan

In every one of these cases those dirty chimpanzees deserved it. No doubt they were acting aggressively and they are surprised when they get a reaction from police....

Dec. 11 2017 03:18 PM
Josh from Berkeley

Agree with the listeners about how one-sided this episode was and am thinking I'll, unfortunately, probably stop listening as well. Your legal expert could not be more impartial if he tried (and I was already pretty sour on him after your free speech debate where he was absolutely crushed by the opposing side with the kind of simplistic argumentation I would not have expected from a legal advisor to your show). I'm not a journalist, nor a legal expert, but 10 minutes on google turns up more nuance than this episode was able to provide. Two examples:
1). You correctly note more white people are shot by police than blacks, but then note blacks are shot at a far higher rate relative to their percentage of the population and that they're 12 times more likely to be shot by a cop. This is true, but it's also true blacks (and more specifically, young black males) are fare more likely (in the neighborhood of something like 90%) to be perpetrators of violent crimes. It's also true that a black male is more likely to be struck by lightening as they are killed by a cop, because, frankly, there's less crime and most shootings are in response to a criminal situation. It's also true that the leading cause of death for young black men, as of several years ago per government statistics, was being shot by another black male at rates far higher than white males shooting other white males and far higher than the next leading cause of death (unintentional injuries).
2). You referenced Tamir Rice on a number of occasions but you really gave no backstory to it other than pointing to another example of a police shooting and implying there was a racial component. I literally googled "Tamir Rice" after hearing your episode because I was curious how cut and dry of a case it was. I learned the 911 caller said a young kid was pointing a gun at people a recreation center, but it was likely fake. The dispatcher, tragically, never passed along that the gun might be fake nor that the potential shooter was a kid. Also of note, the gun had its orange safety tip removed and from a distance is almost an exact match of a real gun (eerily so in fact). When the police arrived, Tamir was sitting and actually picked up the gun which was on his table. This is a tragic, tragic episode, and I'm not even justifying the shot, but this is far more a case of a police dispatcher that is either inexperienced or incompetent than a cut and dry example of a white cop killing of unarmed black man simply because of their skin color.
I'll be the first to acknowledge there are undoubtedly people with a badge that should not have them, so I'm not knee-jerk defender of all police. However, I suspect (and this is just a hunch) we will likely see far more substandard police officers on our streets in the coming years and, as a consequence, more bad shots and the reason is simple: what rational person would want to face this kind of public scrutiny, hysteria and biased reporting?

Dec. 09 2017 07:37 PM

i have an idea, america get rid of your guns so police officers arn't so prevelant to shoot as the mentality is kill or be killed.

Dec. 09 2017 07:30 PM
Rich B from canada

In most cases of this type, the evidence is taken globally... for whatever reason, we break everything down to a split second... The "reasonable officer" needs to be seen from A to Z of the intervention, and I think some jurors have this idea that cops are to be overzealous and jump on everything they see... that is not what a reasonable officer does in reality.

For Grahame, it is clear to me that if they would insist on following up the "suspicious behaviour" in the shop, that at most they can follow the car and get info from the shop BEFORE intervening directly with the occupants of the car. Also, reasonable cops should try to get as much info as possible... and not reflexively disbelieve Mr Grahame, and claim he is faking... Moreover, being drunk is not the same thing as being a shoplifting or robbery suspect... it was not reasonable to disbelieve Mr Grahame... therefore the entire intervention against Mr Grahame was illegal, in my opinion...

Cops should not, through this insane "split second superseding moment" rule get away with creating their own exigent circumstances through their overzealous, guns a blazing, shoot first and ask questions later mentality... if they act in this way this should be considered NOT the actions of a reasonable officer, not unless there already exigent circumstances that may justify it...

Also, take Daniel Shaver... it was relevant that the killer cop inscribed his gun with "you're (expletive deleted)", and this was excluded from the jury, it was also relevant that he behaved sadistically in the moments leading up to the shooting and there were far better options open to him... that whole scenario needs to be considered and not the split-second fear he may have had when Shaver's hand moved towards clothing that could not have concealed a weapon.. his was not the acts of a reasonable officer.

What has happened is we have a subjective "I'm scared" standard where if in a split second he may have objectively feared some possibility that was not even probable in any way, just remotely possible, sort of Dick Cheney's 1% solution there... that is enough. That is not a real objective standard, and not of a moderate cop... a moderate cop does not assume every movement is a plot to kill him, a moderate cop assumes some measure of risk..

Dec. 09 2017 03:08 PM
Rosemary Red from Grandville, MI

Don Kaufman from Seattle, are you talking about Rueben Galindo? There is bodycam footage available. You tell me - was it reasonable for the police to shoot a man with his hands up? How can anyone respond in a quick, calm and orderly fashion when many police are screaming at you to get your hands up or don't move or put the gun down before POP POP you're shot?

Let's be honest here. It doesn't matter how big or muscular a person is, if the police subjectively feel threatened, they will shoot.

Police are trained to escalate and kill when not necessary. It is time to hold them accountable, especially in cases where people were unarmed.

Dec. 08 2017 06:18 PM
Don Kaufman from Seattle

Huge fan of Radiolab, but this was garbage. I am NO Cop-lover, but this was pretty biased. Wasn't the Charlotte guy a football player, and probably over 250 lb of solid muscle. That has more bearing than race. The last guy ranting about missing a shoplifter arrest failed to address a 300 lb linebacker charging you.

Dec. 08 2017 03:31 PM
Karla from Pennsylvania

I am a huge fan of Radiolab and never felt the need to comment before. I am an attorney and wished that you had added just one more piece of information at the end of this episode. The “totality of the circumstances” is the standard which is already used for reasonableness in the context of motions to suppress evidence illegally seized. Yet, we use the other standard in police shootings even in some of those same jurisdictions that apply the standard. They continue to use the superceding moment idea.

What I find most interesting about police and the courts is how bent the standards are towards police generally. None of them are truly objective. The Constitution requires probable cause for searches and seizures but in Terry v. Ohio the Supreme Court created the reasonable suspicion standard because of what the police are experiencing in the moment. This same thinking used in the language of Graham. While I understand the need of the Courts to protect the lives of officers, many of the Supreme Court decisions are quite removed from the reality of day to day living. For example, the Supreme Court approving officers ability to lie, threaten, allow suspects to sit for hours without charge in order to get what they need. All of which is contrary to the historical context of why the Framers added these parts to our the Constitution in the first place. Most feared the overreaching of government toward the person. Now we have this body of law which keeps watering down the protections and focuses too much on granting greater powers to law enforcement.

Ultimately, the Courts subjective misunderstanding of day to day leads to their struggle to create objective standards to be used to apply the Constitution in our daily lives. Thus leading to what seems unreasonable to most Americans and the rest of the world.

Dec. 08 2017 09:40 AM
Jack from Atlanta

RadioLab/More Perfect, I've listened to this episode 2.5x now, and I keep coming back to "Innocent until proven guilty". What does this really mean, if an innocent person can be assaulted or killed by their government and the courts just shrug?

Please do an episode that focuses on "Innocent until proven guilty" and what it means to the Supreme Court, the police and to lawyers. Does it mean anything? Does it carry real weight?

Dec. 07 2017 12:55 PM
Rosemary Red from Grandville, MI

In almost all iffy police killings, they use the "I felt threatened" defense to justify the shooting. Ask yourselves this, honestly: what will it take for you to say that a police officer is guilty for killing someone unlawfully?

Like, seriously, a serial killer turning himself in is subject to more due process than suspects on the street.

Dec. 06 2017 08:20 PM

@JamiefromLasCruces, I think you are referring to the Tamir Rice case. In my opinion, it fails to meet the legal standard. What I believe those cops did that was illegal was they rushed into the scene and put themselves in a situation where they had to shoot. What they should have done was keep a safe distance and give the kid commands to drop it and get down on the ground.

I'm pretty sure I'm right about that because the city later settled the civil case for $6Mil.

This is a pretty standard outcome. The cops get off on the criminal charges but the victim's family usually prevails in civil court which basically means the taxpayers pay for the cops' mistakes and nothing changes.

Dec. 06 2017 08:06 PM
Rosemary Red from Grandville, MI

Responding to Green from Chicago. What Mystal is saying is that a police officer better be damn sure that it's worth shooting and killing a suspect because otherwise they'll go to jail. This shoot first and ask questions later clearly isn't working.

Dec. 06 2017 08:03 PM
Cg from Sacramento

I really enjoy your podcast and even listen at times with my children. I was extremely disappointed to hear such a bias, one-sided presentation on this particular topic. What really put me over the edge was your legal editor, it's very apparent his bias towards law enforcement. I wonder what he would have done if he was in any of those situations. It easy to look back with 20/20 vision, it easy to judge from the sidelines, it's easy to make a choice once all the facts are neatly laid out in front of you, it's not easy when you don't have all those options. I am not saying that every situation presented what justified, I am just appalled that your legal editor would speak like that. My son was shocked and even said, if that was the case no one would ever think to go into law enforcement.

Dec. 06 2017 07:41 PM
Green from Chicago

I really like your podcast overall. This individual podcast was so horribly biased and in my mind so horribly misguided, and unreasonable it is making me doubt listening to the entire show. I cannot believe that reasonable people would even consider this.
From quite literally the most basic, most unemotional, and least praiseworthy of law enforcement standard you cannot come to your conclusion. If you are seriously arguing law has to be 100% correct before acting, then you are flipping the balance of power and you are allowing the upper hand to be on any potential criminals side. If you have to be 100% sure what a criminal is pulling out is a gun before acting, and not a knife, and not a fake gun, and not even a pen, then 100% of the time someone does have a gun, they have the advantage over the cop.
From purely a numbers game, if cops were put at a disadvantage and received even close to a similar number of casualties (gross of %) as the causalities that they inflict, then you would not have law enforcement. There simply would not be the numbers of people interested to replace those killed or injured, without raising the salary to a completely unreasonable amount.

That is as cold and numbers based as I can get without race/praise/etc. involved in my judgement. The most perfect police force in the world needs the benefit of the doubt, you cannot give that to the citizens. As horrible as the results are currently, the outcome of a law enforcement ham-stringed by having to be 100% correct is quite literally a dystopia. For those who are preaching this nonsense, you're either being dishonest (for whatever sinister reason) or you are being stupid.

The most reasonable person on this show was Graham's son. Very smart man, teaching his son the right way to do things, and treating everyone the way they should be treated. Does that mean something horrible will absolutely not happen to them? Of course not, but we each do our best and hope for the best.

Dec. 05 2017 02:32 PM
Jamie Bronstein from Las Cruces

OK, B the conservative libertarian, tell me how a 12-year-old playing with a toy gun rises to the level of it being reasonable for a cop to shoot him. Now imagine that the 12-year-old was white, and then tell me again.

Dec. 04 2017 03:25 PM

Enjoyed the podcast but please don't include Elie Mystal anymore. Nothing in his argument uses any logic. It was based on pure emotion and his own biases. The only thing he demonstrated was how legal training can teach someone how to make something that sounds like a substantive argument.

Dec. 03 2017 11:32 PM
Angus McFee from California

Thank you for your efforts on this. While I did not agree with a couple of the opinion based stances presented, I found this to be very well done. I enjoyed hearing Mr Graham's thoughts as well as those from the trial and appellate attorneys. I'm sharing and recommending this to my circles of personal and professional acquaintences. Again, thank you.

Dec. 03 2017 02:38 PM
Karen from Melbourne, Vic, Australia

As someone who suffers from Type 1 Diabetes, from Australia, where we have government authorities who advocate for the rights of those people with diabetes, I was absolutely appalled, and utterly disappointed to hear what happened in this story. And at the same time I was extremely happy that I live in Australia. I can’t claim to know much of living in America, but from what I do know (& if you ask me), there needs to be far less emphasis (for police and the public) on fear!! At the ‘risk’ of sounding like a hippy, we should be spreading love, not hate, or fear!!!

Dec. 03 2017 05:15 AM


All typos courtesy of Apple deliberately slowing down iPhoe 6 owners to urge upgrades. Scam.

Dec. 02 2017 09:44 PM


The graham standard fails because it permits police officers to shoot suspects who fail to obey police commands and who act in ambiguous manner (similar to graham). The often held justification is that the suspect failed to obey police commands.

The problem is that Police Have used this standard to excuse cases where they shot and killed deaf people who couldn’t hear commands, foreigners who didnt understand English and mentally troubled people who couldn’t process any communication at all.

The standard shouldn’t be the “reasonable officer” because that is obviously ambiguous and ultimately translates to the unskilled jury. The standard instead should be the perspective of the uniformly trained, certified officer where the training is universal across the USA. If an officer can’t meet that standard, they shouldn’t carry a gun.

Garner v Tennessee was a shihiite show. But it lead to Memphis PD training their officers greatly and they revolutioned reduction of officer shootings. The stats are objective: the training is not. This the Supreme Court got it all wrong.


Dec. 02 2017 09:37 PM

I love radiolab and moreperfect. I looked forward to this story based on the description and well before it was revealed... knew immediately it was Graham v. Connor (1989), heir to Garner v Tennessee (1985) fame.

I’m a conservative libertarian who made a short documentary about my high school basketball teammate that was shot by police snipers in 2012. I’m very familiar with the standard articulated in in Graham. I’m also familiar with the subsequent case law and evolving standard. The attorney who won the Garner case examined my case and agreed with my film’s conclusion.

I felt manipulated as a listener to hear the Graham standard articulated as essentially subjective...simply because your entire story failed to include the court’s objective factors required to determine whether or not a particular situation was objective. The court said the suspect must have committed a serious crime, fleeing or resisting and pose an immediate threat to officers or others. These are lead wall boundaries around which not many things can wiggle through.

You failed to point out that THAT standard kept Graham from being killed by police violence because his behavior didn’t meet the OBJECTIVE standard the court laid down for lethal force.

However, the standard is THE standard used in deciding lethal force cases which You referenced in the story.

What I want listeners of this podcast episode, who are interested in Police use of force to know, is that the civil rights violations often occur after the “heat of the moment” when some dirty cops cover up or help others cover up mistakes. But recent case law alway strongly carves out this space whereby officers are not permitted to make decisions which increase the odds an officer must use firce. In other words, if cops are called out to a suicide case of a reportedly armed subject, they can’t immediately rush the scene and expose themselves to danger by the suspect because then their actions prior to shooting a suspect create the circumstances necessary to pull the trigger.

Secondly, I appreciated the detour in the story to identify the apparent origins of the “reasonable” observer. I wasn’t aware of that history. But you poke listeners in the eye by not explaining the origins of the 4th amendment which go back to the revolution which established our country. You should have explained how under English rule the King owned everything and every person in the kingdom was merely a steward of a king who ultimately owned everything. Thus the “King’s Men” could go anywhere and search anything for little or no reason. It is one of the basic grievances that lead to the rebellion of our founders.

Kielty, why did you leave this origin out if not to make the current graham standard seem even more subjective than it is?

I think guys like you lack the philosophical chops to get the story right. The story rules you.

Now I’m going to explain why the graham standard fails. 1/2

Dec. 02 2017 09:24 PM
Jack from Atlanta

Another thought provoking investigation from More Perfect.

The one thing I noticed over and over, officers frequently discuss making decisions in fractions of a second. As someone who actively tries to avoid making snap decisions, I wonder what police are doing (if anything) to get themselves more time. If you fear getting shot, carry a shield. If the shield is too big/unwieldy, get one that's light weight and folds/unfolds at the press of a button. They could even get a shield that carries an electric charge in case the suspect gets too close or the officer wants to charge/close-in.

Police invest SO much money on lawsuits, settlements, buying military gear, and other gadgets, the shield I'm describing is not out of reach because of cost. I would like to know what tools officers have/use to avoid deadly or excessive force especially considering suspects are INNOCENT until PROVEN guilty. This is totally lost on everyone (judge, jury, or other) nowadays.

Dec. 02 2017 02:20 PM
Jack from Atlanta

Another thought provoking investigation from More Perfect.

The one thing I noticed over and over, officers frequently discuss making decisions in fractions of a second. As someone who actively tries to avoid making snap decisions, I wonder what police are doing (if anything) to get themselves more time. If you fear getting shot, carry a shield. If the shield is too big/unwieldy, get one that's light weight and folds/unfolds at the press of a button. They could even get a shield that carries an electric charge in case the suspect gets too close or the officer wants to charge/close-in.

Police invest SO much money on lawsuits, settlements, buying military gear, and other gadgets, the shield I'm describing is not out of reach because of cost. I would like to know what tools officers have/use to avoid deadly or excessive force especially considering suspects are INNOCENT until PROVEN guilty. This is totally lost on everyone (judge, jury, or other) nowadays.

Dec. 02 2017 02:07 PM
Michael from Denmark

Very impressive and very moving podcast. I am left with a far better understanding of the many acquittals of police while still unable to accept that they are right, morally or pragmatically. Perhaps a future story might pull back from the incident and examine contextual issues. In particular, I wonder if situations when police shoot are also situations where training has been insufficient or simply incorrect? Should this prove to be the case, I wonder if police and local government superiors could be motivated if failure to adequately train and equip street policemen could lead to the risk jail time for the superiors in question?

As to the 'reasonable man' concept, this has played a major (and contested) role in anthropological studies of legal practice in non-western contexts. I have heard cases discussed based on an assessment of reasonableness but I have also been told many times that reasonableness is crucial because it allows the parties concerned to accept compromise. Perhaps our system would benefit from a stronger focus on mediation and less emphasis on Law.

Dec. 02 2017 09:22 AM
Marylin Romeu from Lyon

Kelly should pay attention the systematic and unnecessary use of 'like'.

Dec. 02 2017 03:42 AM
LaTalullah from NYC (Jersey City)

But what about the friend that told the cop "He's a diabetic" and the cop said "He's not diabetic. He's just drunk" or something like that.

Doesn't that show that he purposefully ignored information that was given to him? That he basically could be slapped with that 'you didn't do your duty as a good samaritan" thing?

this bugged me through the whole podcast

Dec. 01 2017 07:52 PM

Usually love this podcast, but this episode was a little too biased for me, especially the commentary by Eli Mystal. I don't think I will be listening again, at least not for a while.

Dec. 01 2017 01:02 PM
Jo Find from Texas

Hi Radiolab

I wonder if Kelly could ride around in a police car for a few days. What an interesting perspective she could give. All the killing could have been prevented if the men in these stories would have just complied. I think there needs to be more common sense and I especially liked the last few comments. Teach your kids to respect police and to comply with commands. Remember that these officers have been dealing with difficult people all day and have had enough.
Many good comments above....your listeners seem to get it.

Dec. 01 2017 12:05 PM
C Gayer

Love you guys, but thought this was the type of cliche, one-sided journalism that we see in popular media regularly, which only leads to dividing us (but, of course, leads to higher ratings too). Your legal expert was infuriating and incredible naive. Maybe his opinion is that we need more lawyers sitting in big puffy chairs writing letters to each other at $200/hour. Yes, that's what this country and this legal system needs: more lawyers.

Dec. 01 2017 10:40 AM
Dave from Los Angeles

Interesting rundown on the Supreme Court Case, very informative. On the Con side: You're "legal adviser"? Really? Thoughtful commentary for sure...

Finally - There's a lot going on with new, and less lethal tactics. For example, the idea that you start from a distance and survey more before closing in, (just one example). In the case of Tamir Rice, if the police weren't so close, they would have been able to communicate, from a distance, ascertain that his gun was a pellet gun and de-escalate. If standard tactics for predictable situations were more codified, this could inform the "reasonableness" of a particular event. It could form part of the "totality" to be weighed. I think this is the big revolution in policing, standard, less lethal tactics that tend to de-escalate things, (when possible), and give police more time to think in a less high stakes environment.

Nov. 30 2017 11:11 PM
Menachem from Brooklyn

Is there any possible standard between "reasonable" (to the officer at the moment) or absolute hindsight? The first still sounds mostly okay to me - with tragic consequences - but the second is unconscionable: the shoplifter won't be killed, but neither will the would-be murderer, to the detriment of his victims.
Perhaps "should have been reasonable", meaning the cop should take stock before the situation on hand. Or potentially weaker charges (not murder) for mistaken judgment.

Nov. 30 2017 10:49 PM

I agree with the goal of having no unarmed citizens of any race killed in police encounters. This like all recent reporting shows that this is IMPOSSIBLE in a violent drug-soaked nation of 300+million with current law and police procedural norms. It would seem some advocates want police to never fire unless fired upon, allowing police to be killed at will by criminals, and allow violent criminals to run from police with impunity as long as they don't fire first. If that is the standard you need to tell police it is - I suspect mass # open positions, and I suspect this nation at large doesn't want that. The biggest positive change IMO would be far more minority police officers in minority communities and generally. And for God's sake, as a citizen, comply with police orders when given if you value your life.

Also, radiolab... If you're trying to put the stats in context it and say a black unarmed man is 7x more likely than a white unarmed man to be shot by police, it is disingenuous not to put it into the context of the higher rate of violent crime and police interactions with said population. This obviously changes this 7x statistic as what matters is the number of stressful /violent police interactions, not # people in population.

Finally, Leslie....smh. Really? Diabetic. Schizophrenic. These are real words and largely the people described as such would not agree with your point. Certainly not the diabetics in my family. Come on. These kind of comments turn people to Trump.

Nov. 30 2017 07:37 PM
Myron from Sacramento

Up to this show I enjoyed listening to your stories. This story, the sounds, the DARN SONG happily sung mid story is disgusting.

That you think Black Death is funny and you think it’s okay to play tourist to Black Death and pain with your repeated gun shots and disgusting apologies for the murders of blacks people is offensive.

The entire team who put this garbage story together should be ashamed and fired.

It is a testament to what is most like a truth, as it often is when white media (poorly) tells stories of and about African Americans: there are no African Americans involved in the story telling, the editing, the approval of the story. Further- almost ALL of your guests are white. Why would you think that’s okay?!

You all should be ashamed. All those white cops talking about how right they are to murder us and perhaps one black person later that you then play advocate with. White liberals trying to understand systemic racism while quoting polls and experts who uniquely focus on whites. My god.

Nov. 30 2017 05:34 PM
William Sliger from Memphis

I just wanted to say thank you for your work. I'm a broke guy who can hardly give you guys anything but I have been a sustaining member for 2 years and I can say that I love giving you ever penny and I wish I could give you more. I was a part of the .7% before you even mentioned it a few weeks back!

To curiosity and humility of the facts, may your journey continue to inspire new works and others to listen.



Nov. 30 2017 04:30 PM
Leslie from Toronto, Canada

Your shows are interesting, intelligent, and usually right on. However, I was dismayed to hear (and see above) an individual being referred to as a diabetic! Please, put the person first: an individual with diabetes. This is not a new moral/ethical/politically correct way to think - no one should be defined by a physiological condition.
Leslie Ferguson

Nov. 30 2017 04:18 PM

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