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Defense Questions Use-of-Force Expert in Chauvin Trial. Aired 2:30-3p ET

Aired April 13, 2021 - 14:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[14:30:00]

BARRY BRODD, EXPERT WITNESS ON USE OF FORCE: You know, armed bank robber, you would pull your gun, order them to the ground to take them into custody.

OK, you know their danger, their threat level, right off the bat.

Whereas, I can't imagine how many times I've been exposed to, personally, or have seen other officers dealing with a simple thing as a traffic stop or a jaywalking violation or some minor offense, and they end up in a fight for their life just because of the conduct of the individual they're contacting.

ERIC NELSON, DEFENSE ATTORNEY: OK. So, in terms of the severity of issue, is it always what was the initial response, in your -- or is it something that evolves over time?

BRODD: Well, the initial response, of course, is important. But it's really how the person you're interacting with as a law enforcement officer responds to you.

NELSON: OK. And that's -- does that go into the second Graham factor?

BRODD: It does, the imminent threat.

NELSON: Right. And can you just explain the imminent threat factor?

BRODD: So, imminent is, from a police officer standpoint, you don't have to wait for it to happen.

You just have to have a reasonable fear that somebody's either going to strike you, stab you, shoot you. So you try to plan to deal with the imminent threat.

And then you adjust your tactics accordingly based upon how the suspect is reacting to you.

NELSON: OK. And the third Graham factor is whether the suspect is actively resisting or attempting to evade, correct?

BRODD: That's correct. NELSON: And can you explain that to the jury?

BRODD: So, again, the level of resistance is commensurate with how they resist you justifies an officer to use a variety of tools on their tool belt.

So, if a suspect is resisting your efforts to handcuff them, and they spin away and try to punch you, an officer doesn't have to go fist on fist with them.

The officer's allowed to escalate to use an impact weapon, taser, pepper spray, or other tools.

NELSON: Now, in terms of, again, the analysis of Graham v. Connor, are there other factors or components of that analysis that are relevant?

BRODD: Yes.

NELSON: Can you explain some of those?

BRODD: So, as you're reviewing an incident such as this, you have to try to see it through the eyes of the officers on the scene.

You know, what factors were they dealing with? What circumstances? What was the suspect doing? What were onlookers doing? Were there environmental hazards?

And then try to put yourself in the officer's shoes to see what they -- the decisions they made, were they objectively reasonable or not?

NELSON: So you would agree with the other people who have testified in this case that the standard involves objective reasonableness, agreed?

BRODD: Yes, I do.

NELSON: Based on the totality of facts and circumstances of this case?

BRODD: That were present to the officer at the time.

NELSON: And a view from a reasonable police officer on the scene?

BRODD: Yes.

NELSON: And what about hindsight?

BRODD: So, it's easy to sit and judge in an office on an officer's conduct.

It's more of a challenge to, again, put yourself in the officer's shoes to try to make an evaluation through what they're feeling, what they're sensing, the fear they have, and then make a determination.

NELSON: OK. And does that prohibit or preclude a review of a police officer's conduct?

BRODD: No. Not a review, no.

NELSON: Now, when you approach a use-of-force case such as this, do you apply a particular methodology in order to -- in order to analyze the Graham v. Connor factors?

BRODD: I do.

NELSON: And can you explain for the jury the methodology that you have used in your previous cases or in your career?

BRODD: So, it's a pretty simple review.

So, I look at when the officer contacted the individual, did the officer have legal authority for a detention?

So, let's talk about a traffic stop. If somebody runs a stop sign, police officer has the right to detain you to conduct an investigation and issue a citation.

You, as the person running the stop sign, doesn't have the right to resist the officer.

So, anything that would evolve from a lawful detention, the officer has certain rights to continue the investigation.

Now, a detention can -- so, detention -- what's the suspicion for? To make an arrest, you need probable cause.

So, when I'm looking at use-of-force cases, I want to make sure that the officer had a lawful right to detain or probable cause to arrest.

NELSON: And in terms of the lawful right to detain, you used a term. What was that term? "Reasonable suspicion?"

BRODD: Reasonable suspicion to detain.

NELSON: And what constitutes, generally, reasonable suspicion to detain?

[14:35:03]

BRODD: That you see an infraction or a misdemeanor or a felony. And the person that you're going to detain, you have a reasonable suspicion that they've committed an infraction or another crime.

NELSON: And in terms of probable cause to arrest, how would you define that?

BRODD: It's pretty much as the statement says, that the person probably committed the crime. And so, officers, when they make an arrest, they base it on probable cause.

NELSON: So, in terms of putting a suspect in handcuffs, is that automatically an arrest? BRODD: No.

NELSON: Can it be a detention?

BRODD: Could be a detention.

NELSON: So, the first -- just to make sure I understand your testimony, your first prong of your analysis is to determine whether the officer had justification to detain the suspect, correct?

BRODD: Yes.

NELSON: What's the second part your analysis?

BRODD: How does the suspect respond to the officer?

If it's an arrest situation and the officer tells a suspect to turn around, put your hands behind your back or behind your head, and the suspect complies, and the officer handcuffs the suspect, that's good.

If the suspect doesn't comply and they begin to resist, then I look at what level of the resistance did the suspect display to the officer. And then what did the officer do to overcome that resistance.

NELSON: Now, let's talk briefly in the second prong about the different types of resistance that a suspect could use.

Can you describe the levels of resistance that you look for?

BRODD: So, no resistance would be compliance. That's always the goal.

The next level would be passive resistance, where a suspect -- you tell the suspect, turn around, put their hands behind their back, and they don't.

They're not resisting you. They're just being physically noncompliant. Yet, without any type of physical strength or any type of maneuvers that they may try to do to prevent you from handcuffing them.

So, the next level would be active resistance.

So I go to put you into a handcuffing position, and you pull your hands away or you struggle with me. So that's active resistance, where you're using energy to prevent an officer from accomplishing their goal.

And then now that same suspect, who I want to handcuff, pulls away from me and they swing at me, so that's active aggression.

And all those cues are allowing me to start escalating up the ladder of force options I have available to me.

NELSON: Now, in terms of your experience in various jurisdictions, do use-of-force policies differ from city to city, state to state?

BRODD: They differ slightly. Usually, deadly force policies are fairly consistent.

Some agencies have more liberal use-of-force policies than others.

Some agencies now are starting to adopt policies that you can't shoot at a moving vehicle if the only weapon is the vehicle itself.

So there's a little bit of a learning curve there for agencies.

NELSON: OK. So, in terms of your, again, analysis, the first prong being whether there was a justification for the detention, the second prong being the level of resistance exhibited by the suspect, correct?

BRODD: Yes.

NELSON: What's the third prong?

BRODD: What the officer did to overcome that resistance.

So, if somebody pulls away from you and they're actively resisting, does the officer pull out their baton and strike them in the head? That, to me, would be excessive.

NELSON: All right.

BRODD: So, was the officer's use of force proportionate to the level of resistance demonstrated by the suspect?

NELSON: Objectively reasonable, correct?

BRODD: Yes.

NELSON: So, in terms of your three-part analysis, did you apply that analysis to this case?

BRODD: I did.

NELSON: In your opinion, was this a use of deadly force?

BRODD: It was not.

NELSON: Can you explain that?

BRODD: So, I'll give you an example that I used to teach my academy classes.

So, officers respond to a domestic violence situation, and the suspect is still there. And he fights with the -- excuse me, he fights with the officers and the officers are justified in using a taser to overcome this person's noncompliance.

They tase the individual, and the individual falls to the ground, strikes their head, and dies. So, that isn't an incident of deadly force. That's an incident of an accidental death.

[14:39:56]

And in my review, I would look to see whether the suspect's resistance to justify the use of the taser was objectively reasonable.

NELSON: Can you describe what you would call control techniques?

BRODD: So, control techniques are me putting my hands on you. And it could be, you know, escort position where I put my hand above your elbow and my hand on your wrist.

It could be pain compliance techniques, which means I'm doing joint manipulation on various parts of your body, and if I'm doing what I'm asking you to do, it doesn't hurt.

If you don't do what I'm asking you to do, I can motivate your compliance through pain compliance, stimulating you with pain.

NELSON: Now, in terms of your analysis of any case, you -- I think you described this a little bit. But you -- did you refer to kind of an increased level of force to overcome the resistance? How would you describe that?

BRODD: Police terminology is called one-upmanship. So police officers don't have to fight fair.

They're allowed to overcome your resistance by going up a level, or resorting to a different force option to let them accomplish the goal of getting you to comply.

NELSON: Are officers also required to de-escalate in certain circumstances?

BRODD: Yes.

NELSON: And can you describe the process of moving up or down that use of force?

BRODD: It really -- it's always in response to what a suspect is doing.

So, if they're fighting, you're fighting back, you're trying to control them. Once they're controlled, you reduce your justified levels of force.

Yet, you're still in control of the person. Anybody you take into custody, you have to maintain control of.

NELSON: Again, in terms of the use of force, what relevance does possible drug influence have in an analysis?

BRODD: It has quite a large impact, in my opinion.

NELSON: How so?

BRODD: Well, because people under the influence of drugs may not be hearing what you're trying to ask them to do. They may not understand.

They may have erratic behavior. They may have total -- they don't feel pain. So techniques you would normally use to make somebody comply, they're not feeling.

They may have super-human strength or they may have an ability to go from compliant to extreme noncompliance in a heartbeat.

NELSON: Do you train officers to keep drug-influenced suspects handcuffed?

BRODD: I do.

NELSON: Why?

BRODD: So there's been many instances where handcuffs were removed from a drug-influenced suspect, and as soon as they were removed, or some type of first-aid measure started to be applied, the person is right back to fighting you and you're in a fight for your life.

So, I've trained, and I have been trained, that when you're dealing with drug-influenced persons, they stay handcuffed until they're taken to a medical facility, if that's what the case may be. And they're put in soft restraints on a gurney so they can be treated.

NELSON: Can you describe the concept of situational awareness?

BRODD: Yes. You know, I kind of break it down that a police -- most people's heads should be on a swivel.

You know, if you're walking down a street and you hear somebody running up behind you, your mind process -- your mind thought shouldn't be, wow, I wonder if they're going to tackle me, if they're going to rob me.

No, your head on a swivel, which means you're cognizant of your awareness, see things that may be a threat or hazard to you, plan for them.

And especially as a police officer. A police officer in uniform stands for certain things.

Unfortunately, criminals don't wear uniforms, so officers don't have the luxury of being able to look at somebody and automatically determining if they're going to be a threat or a risk to them or not.

NELSON: Does the concepts of situational awareness come into or factor into your analysis?

BRODD: It does.

NELSON: How so?

BRODD: So, what other threats are present besides the person that we're dealing with?

Are there environmental hazards? Is there traffic going by on street? Are there onlookers? Are there more people starting to focus on your arrest versus just walking down the sidewalk?

The officer's exhaustion level. You know, what are other officers doing? Things of that nature.

NELSON: Is an officer entitled to rely on information he or she receives from dispatch in formulating whether they're going to use force?

[14:45:06]

BRODD: In justifying force, I would say no. In preparing to deal with the situation you're being sent to by dispatch, then I would say yes.

NELSON: OK. How does that differ?

BRODD: So, an officer has to take into account what they see on the scene.

Dispatchers do the best jobs they can, but they're usually only getting information over the telephone. And the information may be inaccurate, may be false, may be exaggerated.

So it's up to the officer on the street to determine what is the best course of action.

NELSON: OK. Have you reviewed Officer Chauvin's uses of force in this particular case, taking into consideration your analysis as well as some of the concepts we've talked about?

BRODD: I have.

NELSON: And let's talk about Mr. Chauvin's uses of force.

Where would you say the first use of force that Mr. Chauvin engaged in occurred?

BRODD: When he joined Officer Keung and Lane trying to put Mr. Floyd in the backseat of the patrol car.

NELSON: And in your view of that use of force, what is your perspective on that?

BRODD: That Mr. Floyd's level of resistance was -- it was objectively reasonable for those officers to do the techniques that they were doing.

I felt that that level of resistance exhibited by Mr. Floyd justified the officers in higher levels use of force that they chose not to select.

NELSON: And would that be -- if an officer chooses not to use a higher level of force, is that an element of de-escalation?

UNIDENTIFIED PROSECUTING ATTORNEY: Objection, leading.

PETER CAHILL, HENNEPIN COUNTY DISTRICT JUDGE: Rephrase.

NELSON: How does an officer's decision to use less force factor into an analysis of de-escalation techniques? BRODD: So, you know, an officer sees an incident, feels it has the

justification to use these tools to deal with the incident, but just due to the personality or the personal make-up of the officer, they chose not to.

They try to expire a lesser technique to see if it will work. And then, if it doesn't work, then they escalate.

NELSON: OK. Now, you've watched -- you testified you've watched the videos in this case?

BRODD: Yes.

NELSON: Does that include the body-worn cameras of the Minneapolis police officers involved?

BRODD: It did.

NELSON: Did it include various bystander videos?

BRODD: Yes.

NELSON: And surveillance videos from area stores?

BRODD: Yes.

NELSON: And from your perspective, just generally, what are some of the limitations of camera analysis?

UNIDENTIFIED PROSECUTING ATTORNEY: Objection, lack of foundation.

CAHILL: Overruled.

BRODD: So, body camera shows what the camera's pointing at. It doesn't see what an officer may see in their peripheral vision. It doesn't show what an officer's actually feeling through their hands or sensing through other levels of awareness.

And in low-light situations, a body cam shutter responds to lighting situations quicker than the human eye does.

UNIDENTIFIED PROSECUTING ATTORNEY: Objection, lack of foundation.

CAHILL: Overruled.

NELSON: I'm -- your last statement?

BRODD: About the shutter release on the body cam is that it adjusts quicker to lighting situations than the human eye does.

NELSON: Now, so, in terms of the initial uses of force, the officer's efforts to get Mr. Floyd into the car, you felt that they were objectively reasonable?

BRODD: I did.

NELSON: Did the use of force then continue after Mr. Floyd was restrained on the ground?

BRODD: I don't consider a prone control as a use of force.

NELSON: All right.

Let's back up just a second. The removal or Mr. Floyd's getting out of the vehicle, however that was, did it -- does that constitute a use of force?

BRODD: The manhandling or the three officers taking Mr. Floyd out of the car and placing him on the ground? Yes, that's a use of force.

NELSON: Was it justified or objectively reasonable in this particular case, according to your opinion?

BRODD: Yes.

NELSON: So, when they brought Mr. Floyd to the ground, are you saying you don't consider that to be a use of force?

BRODD: Up to that point, it was still a use of force, yes.

NELSON: Once Mr. Floyd is on the ground, in your opinion, does there continue to be some level of resistance by Mr. Floyd?

BRODD: Yes.

NELSON: How would you describe that?

BRODD: Active resistance. He was still struggling against the efforts of the officers. And I saw on one of the body cam videos that Mr. Floyd appeared to kick at Officer Lane.

[14:50:12]

NELSON: Is there a reason why officers would take a suspect, an actively resisting suspect to the ground?

BRODD: Yes.

NELSON: Why?

BRODD: So officers are trained that any time you get resistance from a suspect or you're dealing with a high-risk suspect, it's safer for you, the officer, and for the suspect, to put them on the ground, in a prone position, face down.

For a variety of reasons. Some of which are, it makes the suspect's mobility diminished. They can't get up and run as quick.

It takes away some of the use of their hands. So they can't grab you without turning their body, which would give an officer time to react.

It limits what they can do with their feet. They can still kick but they don't have as much mobility or power that they would if they were standing. NELSON: In this particular case, you understand Mr. Floyd was

handcuffed at this point?

BRODD: Yes.

NELSON: Does the fact that Mr. -- that Mr. Floyd was handcuffed somehow come into the analysis as to whether or not to put him into a prone position?

BRODD: No. Any resistor, handcuffed or not, should go to the ground in a prone controlled position.

NELSON: Can you describe generally what you mean as a prone control position?

BRODD: So, it's where the suspect either, in this case handcuffed, handcuffs are behind the back, placed on their stomach and their chest, and officers are in a position to apply body weight to keep the suspect on the ground and to keep them further mobilized.

NELSON: Would it be common practice in that situation to employ an MRT or hobble restraint?

BRODD: You could.

NELSON: What would be the factors to determine whether or not an officer would employ such a technique?

BRODD: So, can the officers control the person's legs? Does the person need to have their legs controlled? In this situation they did. And could Officer Lane be successful in trying to control the legs?

So, it's part of the force option selections they had to make.

NELSON: In terms of -- your familiar with the officers in this particular case considered the use of the MRT?

BRODD: They did.

NELSON: And they ultimately decided against it, correct?

BRODD: That's correct.

NELSON: How does that factor into -- or the decision to not employ the MRT factor into the analysis?

BRODD: That one of the situations where they were justified in the maximum restraint and chose not to.

So, why they had that decision making, I'm not sure. Maybe, you know, Mr. Floyd had made comments about being claustrophobic.

And I know in the teaching I've done with leg restraints, if you leg restrain somebody in training or on the street that is claustrophobic, it creates a reaction.

NELSON: How does the fact that EMS had been summoned factor into your analysis?

BRODD: I think what I've read in the materials is that there was a fire station literally seconds, if not a minute to a minute and a half away.

So if you have somebody that's under control and in need of medical attention, and EMS, who have the training and equipment to do a lot better job than police officers could do, that would be relevant to me that, OK, we call them, they'll be here instantaneously, let's stabilize the situation and wait for the professionals to show up.

NELSON: Would a reasonable -- based on a reasonable police officer's standard, is that a factor that comes into the analysis, that EMS response time?

BRODD: Yes.

NELSON: What about a suspect -- keeping a suspect in the prone position who's potentially drug impaired? Are there safety reasons to do that?

BRODD: Again, so as I discussed earlier, potential erratic behavior, going from compliant to noncompliant, not feeling any pain, potentially having superhuman strength, and it's just safer for the officer and for the suspect to keep them in that prone control.

NELSON: Why would it be safer for the suspect to keep them in that prone control?

BRODD: Because if they were to get up and run handcuffed, trip and fall, sustain facial injuries, other injuries.

[14:55:02]

On the ground their mobility is reduced, their ability to move is reduced, and the ability to hurt themselves is reduced.

NELSON: What if they became sick, for example?

BRODD: Prone control. Instead of having somebody lay on their back where they could aspirate and vomit. Prone control, their face is down, airway is clear. If they vomit, it's not going to go down their trachea or down their throat.

NELSON: You've obviously -- in addition to watching the cameras, you heard what Mr. Floyd was saying at that time, right?

BRODD: Yes.

NELSON: And how do officers take into account an analysis of words versus conduct?

BRODD: So you hear what the suspect is saying. So if I want Mr. Floyd to get in the back of the car, and he's saying, I will, I will, I will, but he's not. And I'm trying to force him in, he says, I will, I will, but he's not, then his actions are telling me he's not getting in the car, regardless of what he's saying.

NELSON: OK. What about, as Mr. Floyd was going into the car and there was this active aggression, as you've defined it, and Mr. Floyd at that point was saying he couldn't breathe, but he continued to say that later?

How do the -- how do the words he was saying initially comply or comport with his actions in that instant?

BRODD: You know, I have advanced first aid. I certainly don't have medical degrees.

But I was always trained and feel it's a reasonable assumption that if somebody is, I'm choking, I'm choking, well, you're not choking because you can breathe.

If someone is saying they can't breathe and it appears to me that they're taking full breathes and they're shouting, to me, the layperson, they can breathe.

NELSON: Is that common -- a common misunderstanding within the policing community?

BRODD: I believe it is, yes.

UNIDENTIFIED PROSECUTING ATTORNEY: Objection, lack of foundation. Move to strike.

CAHILL: Overruled.

NELSON: So in terms of a reasonable police officer's standard, is a reasonable police officer, who has used force in an instant, can they consider that in prolonging a detention or a prone control of a suspect?

BRODD: So, if the officer was justified in using the prone control, and now the suspect is on the ground in a prone control, the maintaining of the prone control, to me, is not a use of force.

NELSON: Why is it not a use of force?

BRODD: Because it's a control technique without -- it doesn't hurt. You've put the suspect in a position where it's safe for you, the officer, safe for them, the suspect, and you're using minimal effort to keep them on the ground.

NELSON: Now, you're familiar with the concept of positional asphyxia, correct?

BRODD: I am.

NELSON: Can you describe for the jury what you train and have been trained that are the dangers of positional asphyxia? BRODD: The training I received is that a target person for positional

asphyxia would be somebody who's very obese.

And now you take that obese person and you handcuff them behind their back and you're really pulling their shoulders back, really constricting their rib cage.

And if you put them face down on the ground, that would be the training model for somebody who could be prone to positional asphyxia.

And when I was first in law enforcement and the training I initially did regarding leg restraints is that you used to hobble a person's ankles, tie the ankles to the handcuffs, and then put the person face down.

And that created even more pressure on the person's sternum and rib cage and reduced their ability to breathe. So that technique was modified to address the positional asphyxia issues.

NELSON: You would agree that the Minneapolis Police Department trains officers to place people in a recovery position, correct?

BRODD: Yes.

NELSON: You would agree that that is based out of concerns of positional asphyxia, agreed?

BRODD: Yes.

NELSON: Now, are there situations where a reasonable police officer would not put a person in the prone position into the recovery position?

BRODD: Yes.

NELSON: Can you describe what those may be?

BRODD: So, in this situation, there was space limitations. Mr. Floyd was butted up against the tire of the patrol car. There was traffic still driving down the street.

There were crowd issues that took the attention of the officers. Mr. Floyd was still somewhat resisting.

So I think those were relatively valid reasons to keep him in the prone.

[14:59:59]

NELSON: Now, in terms -- in terms of your training -- again, that you have been trained and trained other officers in the use of crowd control or crowd-control issues, right?