Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:10] 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: [00:00:18] So, pull up a chair.

Dan and Dave: [00:00:21] Welcome to The Briefing Room.

Dan: [00:00:37] Hello, listeners. This is Detective Dan. Today on The Briefing Room, we have the last episode of Season 2 and an episode where Dave will go it alone as the host because of his expertise and experience investigating crimes against children. When a child is the victim of sexual or physical abuse, severe neglect or witnesses domestic violence it can have terrible and long-lasting effects on their mental state. That’s why child advocacy centers across the country have become such a valuable resource for these young victims of crime, as well as law enforcement, child protective services, and medical professionals.

[00:01:15] Child advocacy centers provide a setting where children can be forensically interviewed, receive medical care, emotional support, and even testify before the grand jury, all under one roof. While what our guests talk about today applies to their specific child advocacy center, the lessons they share, as well as their services can be applied to similar child advocacy centers across the United States. Dave, I’ll hand it over to you.

Dave: [00:01:42] Thanks, Dan. I’m here with two victim advocates from Kids First. Sarah Stewart has worked with Kids First since 2011, and she’s now their Executive Director. Welcome, Sarah.

Sarah: [00:01:53] Hey, thanks for having me.

Dave: [00:01:55] Nichole Schumann is the center’s Lead Forensic Interviewer. Welcome, Nichole.

Nichole: [00:02:00] Thank you.

Dave: [00:02:01] Sarah, how does Kids First ever become a part of a child’s life?

Sarah: [00:02:05] Well, all of our referrals tend to come from law enforcement or child welfare. So, when a report of child abuse that could be criminal is made, the law enforcement detective or the child welfare worker reaches out to us to help. And so, that’s really how we get involved. We don’t take referrals from parents or families directly, but we do get a lot of calls from them. And if we do, we help them make those reports, so that they can get referred to our services.

Dave: [00:02:35] What can people expect from a visit to Kids First from your perspective?

Sarah: [00:02:38] As you said, it’s not a pleasant situation when people are coming in the doors. And so, sometimes, kids and families are nervous about that. But without Kids First, the alternatives is that they’re going to police stations, they’re going to emergency rooms, courtrooms. And so, most of the parents that we work with, people think child abuse and they think bad parents. While I understand that, over half of the kids that we’re seeing are for concerns of child sexual abuse. And so, it’s not necessarily their parent who did it. They very likely have a protective parent who can bring them in and they have little to no experience with the criminal justice system. And so, they think my kid said this, “Why hasn’t this person been arrested?” Coming into Kids First can be really helpful because they get to meet with law enforcement in a child friendly place.

[00:03:31] They get to meet with one of our advocates who’s going to really walk them through the process. They get to meet with one of our interviewers, like Nichole, to tell their story in a recorded setting, so that they don’t have to continue to talk about what happened to them and they’re not being reinterviewed. They get a chance to be heard, which is really can be really helpful and therapeutic. It’s not therapy. Interviews are not therapy, but they can be really helpful. And then they get a chance to meet with one of our medical providers to be medically examined. That’s not just for evidence purposes. It’s also a really good opportunity for kids, especially in these child sexual abuse cases, which, as you know, most of the time there isn’t physical evidence. It’s a good chance for kids and their parents who are really worried about them to know that their body is completely healthy and everything’s okay.

[00:04:27] They also were doing evidence based mental health screenings, and so we get to see if the kid’s experiencing a lot of trauma symptoms. And if so, we use the screenings to refer to ongoing therapy. And so, the opportunity at Kids First is really to get the situation addressed and assessed by all of the folks. Everybody’s coming to this child and their family to help. And then to also now that we get to offer mental health services, we’re only one year into that to also help that child and their family heal, and so that abuse doesn’t have to define their lives.

Dave: [00:05:02] Okay. For police, how we become acquainted with Kids First is, say, we get a child abuse, a child welfare, a child wellness check, any case where a child is either a victim or a witness of a fairly major crime like abuse or domestic violence. The police get called out that night, “Go handle the call.” They send their reports to various agencies, one of which is Child Protective Services, and typically also at the same time send a copy of that report to Kids First. And a lot of our patrol officers would just say, “Just show up at Kids First at 09:00 AM tomorrow, and they’ll be able to hook you up.” That is not quite how it works, is it?

Sarah: [00:05:48] It’s not. We serve over 700 kids a year. And of course, the services we provide are pretty sensitive, and so we usually have no more than two families in the building at the same time. And so, we do really work hard to schedule those appointments. We used to have drop in spots, but it got to the point where when folks would drop in, they might be waiting here a couple of hours for all of our team members to get here, law enforcement, child welfare and such. And so, it’s just not the most trauma informed welcome. We like to be prepared for them.

Dave: [00:06:19] You said 700 kids that you guys serve on a yearly basis?

Sarah: [00:06:25] Yeah, over 700 kids each year.

Dave: [00:06:27] I think people don’t quite understand how busy your center would be with 700 kids open five days a week. There’s not a terribly large population in the area, probably a little over 250,000 people in our county. And to have 700 cases, you think that’s two a day.

Sarah: [00:06:49] Right. It is a lot. It’s a decent sized population and a geographical area, but when you consider that our center, which is one of the highest volume centers in the state, is seeing 700 kids, that’s really only those situations that really rise to that potentially criminal level. Child welfare is investigating a lot more. Law enforcement is involved in a lot more that just don’t quite rise to that level. And so, 700 kids is a lot for the types of crimes that we see.

Dave: [00:07:22] When a child comes to Kids First, I think most people think who are familiar with child advocacy centers. We think about the forensic interviewing aspect of these advocacy centers. Nichole, can you walk us through maybe a little highlight of your bio, how you got involved in forensic interviewing?

Nichole: [00:07:42] Sure. Well, I started working in the field of child advocacy in Arizona, actually, at a CAC down there and transferred up to Oregon. I’ve been here for 13 years. I’ve been interviewing forensically for 17 years. So, show my age, almost 18 going on.

Dave: [00:08:02] I know that you’ve done a few dozen interviews yourself. I’m guessing you’re in the 3,000s still, or maybe you’ve gone into the 4,000s?

Nichole: [00:08:11] I’m about 5,000. About 4,500 to 5,000, when I testify at court. I don’t want to purge myself. So, I just round and I said, I’ve done a lot of interviews. I average about 300 interviews, 325 interviews a year. And over the course of 17 years, that’s a lot.

Dave: [00:08:26] I can imagine. You’ve probably heard everything.

Nichole: [00:08:30] Every day, I hear something new. So, no. But yes, I’ve heard a lot of similar stories. But there’s those wild ones that you hear and you’re like, “Okay, that’s new. That’s new.”

Dave: [00:08:42] If I’m a parent and I’ve got a child who has to go to an advocacy center next week for an interview or whatever service Kids First can help a child with, if they’re going in for an interview, what can you tell a parent about what an interview or what a morning at Kids First looks like? Nobody wants to go to Kids First, typically. There’s a bad reason for having to go to that place. But once you’re there, what can they expect?

Nichole: [00:09:14] As a forensic interviewer, we want to be a trauma informed, we want to be developmentally appropriate, forensically sound. We’re neutral fact finding in nature. And so, we want to give a chance or an opportunity for a child to be able to tell about events experienced in the past from their perspective, and give them an opportunity to tell about whatever they’re here to talk about in a way that it comes from the child’s voice building that credibility of a child, because children already start out at a lower sense of credibility in our society. And so, we want to make sure we give them the opportunity to talk about what they have experienced.

Dave: [00:10:12] Some folks might have a preconceived notion of what a child abuse interview looks like that I think even– As a patrol officer, I used to go out to some of these acute calls where a family calls us at 10 o’clock at night and says, “Hey, my child has something to tell you. Tell him what you told me 10 minutes ago.” And we have a grainy video of a child being asked something on an iPhone, and I understand why parents do that that they’re trying to start the investigation and get the facts laid out. Can you explain why that might not be entirely helpful on the prosecution end of things, and how you, as a forensic interviewer, are required to structure interviews, so they’re defensible in court?

Nichole: [00:11:04] Sure. Well, caregivers usually have the best intentions. That’s why they’re whipping out their phones and starting to record. [laughs]

Dave: [00:11:12] I agree. I agree with that.

Nichole: [00:11:13] So, they don’t know any better. Sometimes, we can’t un-ring that bell and so we just go with it and use that information. But we’ve done a lot of training that under a certain age, please don’t ask questions, just bring them to the center.

Dave: [00:11:26] What is that age?

Nichole: [00:11:28] About12 years and under. We still want teenagers to come here and adolescents, because some brains are underdeveloped. The way we ask questions are very different from a way a detective may ask questions, because we do a narrative, cognitive interview where when detectives go to the field, they’re like, “Facts, facts, facts, facts” to the point, which is important too, because you need to know that for search warrants and collecting evidence and all the things, but I’m like, “Bring up to me and I’ll get all that information for you.” I often say that to my detectives.

Dave: [00:12:05] I was slow to respond to that when I was still a detective investigating sex crimes and child abuse. But eventually you go, “I’ll just have Nichole get it for me.”

Nichole: [00:12:14] Right. The whole purpose of our interview is not only to understand their statement, but to understand everything going on in their lives that really relate to the abuse they’re experiencing. So, we go above and beyond in just gathering a statement. We understand everything that happened before, everything that happened during, everything that happened after, and then what we call polyvictimization, which is all the things and cooccurring abuse that are going on in their lives. So, we really go in depth in a forensic interview if we can, if we have the attention span, the age, the time, there’s just lots of factors.

Dave: [00:12:54] The verbal development is a big one.

Nichole: [00:12:55] Mm-hmm. It is. Detectives love it when I come and interview a three-year-old or they bring a three-year-old to interview and I get a disclosure. But there’s no context, because a three-year-old often can’t provide context.

Dave: [00:13:11] Like an example of that right off the top of my head is I’ve had plenty of cases where during a custody handoff, you have a child that arrives at the custody handoff and has a red mark on their bottom. The assumption is that that child must have got a whipping over the weekend for misbehaving. It could just be a rash. It could be a little– Maybe they went to the rock slides and the kid fell. But say that it is something that is caused by another human, the context is, “Well, what mood was your dad in when you got this scratch on your bottom?” “Well, he was trying to help me up off the slide.” That’s different than dad was angry. He was punching holes in the wall, and then he hit me.

[00:13:58] So, we do have children that can say, “Daddy got angry,” and some people might jump to, “Well, that’s the context. Dad must have abused the child.” Well, it could be that daddy got angry after the child had fallen down because the dad looked over and said, “I told you not to walk over there.” So, it’s not necessarily abusive. It’s all context. And Nichole, it’s your job to try to tease that out of the child to find ways that aren’t in a leading fashion like, “Oh, your dad was mad, huh? Does he usually hit you when he’s mad?” That’s such a leading and loaded question that I, as a detective, could never defend that in front of a defense attorney. I’m sure you’ve squared off with defense attorneys on the stand. How do you walk a jury and a defense attorney through how you’re asking these questions?

Nichole: [00:14:51] I’ve been doing that a lot lately. We’ve been going to trial a lot, explaining to the jury what we do and how we do it. Like you said, it is all about context, and we have to understand everything that child’s experiencing. And so, first off, we say start by believing and start by understanding, and we walk a jury through what an interview is. So, we tell them what it is. We tell them what to look for in a way, because we’re educating the jury, “This is how children communicate.” And so, once we teach them how children communicate, we basically do a minilesson on the stand and talk about a semi-structured interview, what that looks like, all the elements, and question types, and navigating that, and understanding what they had told us. And then what you were trying to just explain is alternative explanations like, it could be this or it could be this.

[00:15:43] We don’t come to that determination. We just gather info for the team to go out and either corroborate or refute those allegations. So, we describe that to the jury, and we also then play the interview. And so, we are teaching them like, “This is how children communicate, these are things to look for in a scope this is what you’re after.” And then we have the jury watch the interview and put together the pieces. So, we’re not saying this happened to the child or this didn’t happen to the child. We’re saying, “This is how a child typically behaves.” We tell the jury, and then they come to their own conclusion, which should happen in our criminal justice system. So, we’ve got it down in our county.

[00:16:28] So, we don’t have too many defense attacks, especially on our interviews and our process. The attacks come where those cell phones are used. And the parents, everybody who’s talked to the child prior to the interview, they’re attacking that. And so, we want to, like I said, give the child the best opportunity to tell their story in a contained space, so that we can hear from them, because parents don’t know how to question children. They’ll often go very direct.

Dave: [00:16:58] Well, even police officers don’t know how to question children. I used to cringe at some of the reports where an officer says, “I then interviewed the child, and I’m going back to the front page, feverishly going, how old is this kid?” And you’re like, “Oh, he’s six.” What on earth are we doing, guys? [laughs] Like, “We shouldn’t be interviewing kids.” There are just too many examples of cops being absolutely turned around by a defense attorney. When you get in these situations that there’s a reason why we have this defensible process and we’re going to follow it. It’s really easy to get in the, “I just want to know this one little fact before we move on, before I send this kid away.” I know that Nichole used to get frustrated with me. I’d say, “How many times? I need to know the frequency?” And she’d be like, “Dave, you know, I can’t get that.”

Nichole: [00:17:49] No time, frequency, duration with children under 10, please. Because they don’t have that cognitive ability to do so. Their development is not there. It’s an abstract thought process. Children are just learning that at that age, under age 10, and you’ll get guesses. So, if you said how many times? They’ll say a million. That just means there was a lot of times. We have tricks to get at time, frequency, and duration, and that’s by narrative questioning.

Dave: [00:18:22] Right. That it’s not just a direct. Did this happen 10 times, 20 times or 50 times? It’s like, well, what if it’s none of those.

Nichole: [00:18:28] Or, all of them.

Dave: [00:18:30] Yeah, it could be all of them. Yeah, it happened 10 times, 20 times, and 50 times. I want listeners to understand that there’s a certain voice track that we give to children and parents before these interviews, and we really try to hammer home that the child’s in charge of this process that nothing’s being done to them, it’s all being done with them. Can you talk about why it’s so important to make sure the child and the parent understands that?

Nichole: [00:19:00] There is a certain structure to it. The beginning is rapport building, assessing child fdevelopment, and also the reassurance. The reassurance piece is important because we use specific language with certain children to increase accuracy in telling. So, we do some rules depending on the age, so young children it might look differently than teenagers. But that’s where that discussion comes in, that you’re in control, you could stop the interview, you can leave at any time. Sometimes, we use that direct language. Sometimes, it’s a little bit more structured with little kids. We do an, I don’t know, instruction.

[00:19:37] So, if we’re giving the power back to them, if you don’t know the answer, you can say, “I don’t know.” And then sometimes we practice that with them. If you don’t understand me just because I’m an adult, I might get something wrong. If I get it wrong, let me know, or if you don’t understand, I’ll say it differently. So, we give them that instruction, so they have that power back. We’re trying to put that power differential equal because adults are on a higher level and credibility than children. So, we really want to give that power back. That’s what we do technically in the interview with the child.

Sarah: [00:20:11] That’s what we do at Kids First, in general. I think probably the best example is about 22% to 24% of the kids that we serve every year have witnessed domestic violence. And so, in those cases, we’re working with the parent, the survivor who has experienced domestic violence and those kids. We’re calling that survivor and we’re asking often her to bring her kids in for these interviews. And it’s intimidating. They don’t want their child to be part of an investigation. They don’t want them to be interrogated. They also feel pretty powerless, like, their partner maybe was arrested. Charges are being pressed by the state. They don’t really have a choice in that. And so, we look at it as any opportunity to give their power back and to reassure them that we’re not here to interrogate them or to interrogate their kids. Like, this is going to be a supportive environment where they can get resources, where the adult survivor has a confidential advocate just for them to be able to work with them and safety plan.

[00:21:13] Even with our medical exams, they’re asking– First of all, if they want to take part in a medical exam and then which parts they want to take part in, because we don’t want people to feel like a piece of evidence. That’s not what we’re trying to do here. Of course, a criminal case is important. But it’s not everything. It’s not the most healing thing for a lot of families. That’s not going to be as helpful to them as some of these other pieces. And so, making the experience supportive to whatever the family’s needs are is really important to give them power back.

Dave: [00:22:01] Nichole, I’ve seen so many interviews that I understand the standard operating procedure. But for the listener, a huge portion of an interview, the early portion is rapport building and explaining the rules. That’s in child forensic interviewing, that’s in interrogating a suspect that there’s a lot of rapport building. I’ve seen the evolution of a child’s disclosure on many occasions, and there are moments where I’ve been watching an interview with Nichole, and I’ve seen the moment when the disclosure happens. Nichole, how do you build trust with your interview subject, and how do you tease out the information that is going to land on a jury’s shoulders and lend themselves to credibility for the victim?

Nichole: [00:22:56] Kind of a massive answer, because there’s disclosure dynamics involved. So, I always go in like, “Where are they at on their disclosure continuum? Are they active disclosure, we’re ready to go, or are they minimizing, recanting, taking back?” Whenever all those dynamics are at play, let’s say, the offender manipulated or there’s shame and embarrassment or things like that, we do a longer rapport building. We really do. There’s research and there’s best practice. So, the research we follow is like friendly interviewer and making sure that child is heard. We’re just not only talking at a child, we’re talking with a child. We’re saying we’re listening. And so, we really demonstrate that in that rapport building phase.

[00:23:45] I always in my rapport building, they teach us to do an in narrative event practice. And in that narrative event practice, we’re trying to understand a sequencing of events from beginning to end. And so, I really try to hone my narrative event practice, not on something I’m interested in, but something the child is, because you’ll get engagement in that way. So, asking them, “What do you like to do?” “I like to blank.” Or, “What’s the best thing you’ve done this summer?” “Oh, we were just at a party and there was this huge slide and were talking about the slide.” And so, I go through everything. “What’d you do first when you got to the party, then what’d you do?” So, I’m walking them through that event on a neutral topic, because when we get to the hard stuff or the topic of concern is what we call it, they’ll already be able to do that.

[00:24:39] We’ve already demonstrated that they’re able to do that. We’ve practiced it with them. They don’t know we’re practicing and teaching, but we are in the back end and we’re listening to if they have that ability, so we won’t set them up for failure when we get to that topic of concern. So, I know in the front end, they have the skill or they don’t have the skill. And if they have the skill, I’ll use it on the topic of concern. If they don’t, I’ll formulate my questions differently. I’ll go a little bit more direct if I have to.

Dave: [00:25:08] You have to play these by ear yourself.

Nichole: [00:25:10] Always strategizing. That’s why it takes a lot of brain power, and we’re exhausted after an interview. You’ve seen it.

Dave: [00:25:17] I understand. Yeah.

Nichole: [00:25:19] We go in, and we’re not only listening, we’re thinking about what direction we want to go next and how we’re going to get at that direction by what question we’re asking with remaining in these guidelines of we’re not leading a child.

Dave: [00:25:36] And having to actively listen for little flags here and there.

Nichole: [00:25:41] Little flags. I don’t take notes, because I really, truly believe that you should be an active listener listening to everything that child says. And so, I’ve developed cues and tools along my way. I’m a hand talker. So, once in a while, they’ll say something, and they’ll say something about the blue shoes, and I’ll be like, “Blue shoes? Boom. We got to go back to that.” But they’re still going, they’re still going. “Okay, and then what happened? And then what happened?” And then later I’ll go, “Oh, you said blank about the blue shoes. Tell me more about the blue shoes.” I’ll cue back. So, I’m not interrupting. I’m not direct question after direct question. I’m doing a really open-ended narrative, because that’s how you get that child’s perception of what happened.

Dave: [00:26:25] I’ve seen it so many times on video. The actual moment of a disclosure that you’ve spent, sometimes it’s 5 minutes rapport building, sometimes it’s 50 minutes rapport building. But you see how a child, their rhythm and their cadence and how they answer, and then you get to the moment where Nichole will ask some variation of, “I heard something happened,” or “I heard people are worried about you,” or “I heard the police came to the house. What happened? Why did the police come to your house?” It’s open ended. You give the child an opportunity to speak about something. The change in body language when a child talks about the topic of concern, the change in every dynamic in that room, you can feel it even when you’re not in the room. You can see it on the screen.

[00:27:23] I think that’s why it’s so important that we video record these. And then when they’re put in front of the jury, they can see, “Oh, that child was happy go lucky until she asked about this,” and everything changed. The child’s legs folded close together, they put their hands in their lap, they look like they’re in defense mode. Those are all things that you can point out to a jury and go, “Look, you can see it right now. They’re back in it.” That’s the beauty, and I guess the tragedy of these videos that you see it in real time. When you’re in the room and that happens, what’s going through your mind?

Nichole: [00:28:04] I’m just patiently waiting and letting the thought in the process sit, because they’re processing, they’re going through it, and then they’re making decisions like, should I tell? Should I not tell?

Dave: [00:28:16] And you can see on facial expressions too.

Nichole: [00:28:19] Yeah. You could see body language, facial expressions, everything. That’s where that trust comes in. We already built that trust, that rapport building. And so, sometimes, they’ll just go and sometimes they’ll just drop a little bit, right? “Tell me the reason you’re here and then something little..” You might have to go back into rapport building– But I go back into rapport building. I navigate a different way. I talk about things that are meaningful to the investigation. Like, if they’re not ready to talk about the abuse scenario, I always go to the scene, “Tell me where you were. What does the bedroom look like?” Because that’s helpful for the detectives. It’s helpful for child welfare, everybody, where was everybody? We’ll get extra witnesses. We’ll know and understand what the room looked like what was in the room, and that’s great for warrant writing and evidence collection.

[00:29:10] Plus, we’re not talking about the hard stuff yet. We’re talking about things that they know and understand about their own room or wherever it happened. And then we could– It’s continued report building lead into that reason or the topic. And then if they’re still not ready, we go around and do more information gathering about offender, how they met, all those things, and then you get those manipulation tactics that we always talk about knowing and understanding how they got themselves in that situation, and then we can get into the topic of concern or why they’re there.

Dave: [00:29:46] Yeah. I feel like it would be a mistake if I didn’t have you at least talk about grooming to some degree. We had Roo Powell, who does a show on Discovery, I believe, Undercover Underage. She talked about grooming. She does not have a forensic interviewing background, but she does do a lot of online stings, and pretty impressive. I think you guys would enjoy having a nonalcoholic beverage with her one night. [Nichole laughs] Similar drive to help victims, but she talks about grooming and how that cannot be understated in every one of these cases. I just want to hammer home to parents that grooming is a large aspect of these cases.

Nichole: [00:30:37] It really is. There’s a culture shift in our state. We’ve had some case law, recent case law that I made with a DA. That is amazing. It overturned Henley. Henley I and Henley II said that forensic interviewers couldn’t talk about grooming to juries. And so, now there’s Williams. And Williams states that we can, in certain circumstances, of course, and describing the relationship. So, we’ve been going through– I’ve actually been to court in the last month, two months, and I’ve given my testimony at least four times and gone through a hearing to talk about scientific evidence on grooming. We don’t say grooming. Grooming is like the layman’s term. We call it offender manipulation and dynamic disclosure tactics, like, how children tell and how that impacts the telling. But it’s super important, like you said, because you’ve sat in many meetings I know where parents were like, “No, they would have told me. They would have told me. I don’t understand why they didn’t tell me.” What we know about disclosures that they don’t and the reasons why are because of those manipulation tactics. And yeah, it’s been great as far as like a win in the court. So, we use Williams now and it’s been helpful.

Dave: [00:31:58] I love that. To ignore those factors would, to me, be the crime that we are saying, “Grooming is not a real thing. You guys are making that up.” It’s like,” No, no,” [laughs] this is the foundation for 99% of crimes against children. This is what happens.”

Nichole: [00:32:17] Right. It gets really complex, especially when you’re educating a jury about it, because it’s a balancing act. You’ve been to court several times. And the balance is between saying that this person groomed this child, and therefore the abuse happened versus this is the reason why children acted the way they did, because this grooming happened. And so, we have to only use that grooming evidence and or manipulation evidence to talk about the behaviors of children, why they didn’t tell, why didn’t they run away real quick, why did they allow it to go on for years, why did they accommodate to the abuse and allow it to happen? All these factors are difficult for the general population to understand. It really is.

Sarah: [00:33:08] If you’re looking at the dynamics, you’re like, “Why didn’t this kid tell their mom?” The mom seems supportive. Why didn’t they tell their mom? And if they don’t understand the dynamics of grooming, then it might not make sense. And then also just understanding that when offenders are grooming, they’re not just grooming the child, they’re grooming their caregiver and other people in their lives. So, they have a great relationship with that parent, and so then there’s this question of like, “My mom believes me about everything, but she really trusts him. I think this would might break her heart if she knew he was doing this.” All of those dynamics are incredibly important to understanding why abuse continues, why it happened, why it continues, and why kids didn’t tell right away.

Dave: [00:33:52] I used to always give the advice to parents, just have an open line of communication with your kid and make sure your child knows that even if they’re going to tell you the most horribly, enraging, upsetting information that you’re going to handle it with poise and a measured response that doesn’t fly off the handle, those are situations where children feel safe to come forward with troubling information. I understand the mama and papa bear rage that you might get from hearing that kind of information, but it’s so important that you just have a measured, calm approach with your child. That way they feel safe when they feel like they can’t turn to anyone else to tell about something horrible that happened to them. It’s so important.

Nichole: [00:34:43] And it works too. There are cases that come here that are not abuse, but have those creepy behaviors, and we’re still here to listen to that child. I just had this conversation with some parents last week about guess what, the system worked. They went to Erin’s Law and they heard about how to tell and they said, “This person’s being inappropriate, saying sexual things that are inappropriate to me.” She’s 11 saying this, saying that, and she told the system worked. And so, we have those success stories. It’s a slow process, but if we get some education out there, we educate our community. We recently trained many advocates here to do some education in our community. And so, providing that information is power.

Dave: [00:35:56] Kids First is not just a place where kids go to get counseling referrals interviewed and medical exams. When I was a detective, we had the multidisciplinary team. I was hoping you could talk about the role that Kids First plays among the stakeholders in the child abuse realm.

Sarah: [00:36:16] Yeah. I think what I get to see working with centers across the state is that our role can sometimes look a little different than other folks. I think it really goes back to our partnership that we’ve always had with the district attorney’s office and with law enforcement. That has really allowed us to be the convener of the multidisciplinary team. And so, for context, the multidisciplinary team is like that team of professionals, law enforcement, child welfare, district attorneys, therapists, medical providers, and more that come together to support a child and a family, and then also to work on the investigation and evidence gathering.

Dave: [00:36:55] And the focus is to make sure nothing falls through the cracks that we don’t overlook a certain situation, because as we all know, people have fallen through the cracks, victims have fallen through the cracks in the past and to tragic circumstances. I think that’s how we came up with the multidisciplinary team that really it was every two weeks, we talk about every child abuse case that’s gone through the advocacy center in the last two weeks, and you talk to every stakeholder that is involved in that case. I remember around the table we would have veterinarians, we had someone from the library, we had people from the school districts, we had counselors, therapists, doctors, cops, child welfare, we’ve had a judge in on those meetings before. I think about everyone who’s involved in these cases and who might have some input, we had them in these meetings. And truly, that’s from lessons learned from the past.

Nichole: [00:37:59] Our whole goal is to share the information. So, give the story from start to finish, “This is how I received the case. This is what we’ve done, the action. Let’s talk about the forensic interview, their developmental appropriateness, what they said during the interview, and then what did child welfare do afterwards. Is there a safety plan in place? And then what’s next steps? What are the next actions?” So, a DA will look at it and say, “Oh, we should do this. This or this. Oh, there’s other children in the home, let’s get them interviewed” and then we’ll come back and we’ll talk about that case again.

Dave: [00:38:34] Nichole, these 5,000 plus interviews, I know you have the biggest heart. Where do all these thousands of interviews, where do they sit with you and how do you sleep at night?

Nichole: [00:38:47] Sarah named it, like, eight years ago, she says I’m a conduit. Meaning, that I don’t hold the information. It goes through me. So, when I’m in the moment doing my job, I’m doing my job much like any other trauma person doing their job. Active listening, remembering everything that child said, so I can go back and direct and ask more questions. I don’t personalize it. That’s one key. I, sometimes, have to re-read my notes or I pull up an interview and I’m like, “Oh, I remember that one, because this, this, and this.” Especially if we’re going to be discussing it at MDT two weeks later, or if a detective wants to consult for a supplemental interview. Meaning, that they need more or there’s more there. So, I have tools and tricks to cue myself as to what the case is. I re-read, I rewatch. But I think that’s why I’ve been able to do it for 17 years is just because I don’t hold on to it.

[00:39:49] Of course, there are those cases. The hard ones are deceased children and homicides are very hard because they’re just memorable, but other things, I’m able to purge. I get to see the end result, and I’m proud of that end result, which is, either going through therapy and the healing and moving on and or fighting in court and going that route and getting end results, which is justice. Not every kid gets justice, but the ones that do are really impactful.

Dave: [00:40:22] Sarah, looking back nostalgia wise, I know that there have been times where law enforcement on, say, a weekend or in the middle of the night, Kids First was always very proactive about letting us know, “If you need us on an emergent basis, just call us and we’ll come open the doors, even if it’s 2 o’clock in the morning.” I’m wondering about those types of situations for you with a follow up on how do you handle these types of cases in your own personal life.

Sarah: [00:40:54] What you’re talking about, like, coming in the middle of the night, we don’t do that all the time. We do it a few times a year. We trust our partners. When they’re asking us to do it, it’s usually pretty important. Those are hard cases. They are usually like a witness to a homicide, or maybe a child death, or something like that that’s just really hard for everyone, it’s hard for the entire team. And so, those are some of the cases that I would say that I remember most. I don’t necessarily think of them as the hardest times, sometimes a little bit, but I also think our MDT, it’s a really good opportunity for the MDT to come together. Although, none of us want to be coming in Labor Day weekend to work on a homicide and we certainly don’t want a number of kids to have witnessed that, it’s the team coming together to support the child and the family and making sure that they’re served in the best, most trauma informed way.

[00:41:58] I always find it really powerful and inspiring as well, even though, it’s really a little dark. I think for me, as an administrator now, not doing as much advocacy, my top moments have been being able to add therapy, being able to have a permanent building that’s ours that we’re not going to get kicked out of, being able to grow our team. Even when you were on our MDT, we did a strategic plan where we did a survey of partners and people said even back then like, “Gosh, wouldn’t it be great if you could do therapy, if you could provide some of these healing services?” It took us so long to be able to get the physical space, and then to be able to get the funding, and then to find the qualified staff to do it. But it’s really powerful, I think, to be able to see the growth and how that is impacting children and families. That is the inspiring part for me.

Dave: [00:42:58] And these families never get a bill from you, guys.

Sarah: [00:43:02] Never.

Dave: [00:43:03] Everything is taken care of. That doesn’t happen nowadays.

Sarah: [00:43:07] Especially, for quality, medical care, and evidence based mental health treatments, the waitlists for those services are so long. We don’t have a waitlist for our services. We’re referring people, and they get in within the first week. So, it’s just giving them the evidence-based treatments, which is very important promptly. It’s short-term because the treatments work. So, it’s usually 12 weeks maybe at the most, and then their trauma symptoms are reduced. It’s powerful stuff.

Dave: [00:43:37] When it comes to fundraising and keeping a place like this running, how do you guys do it? Where are your funding streams and how can people help?

Sarah: [00:43:48] It’s not always easy. We now have 23 team members. So, even back when we had five to six team members, we still saw about 700 kids a year. And so, it’s not necessarily that the demand is increasing, but the services that we’re providing to each family. So, before we used to provide solely the forensic interview, which is great, but that’s not what necessarily helps the child heal and move on and be resilient and reduce– break that cycle of trauma and violence. And so, we’ve worked really hard to add these additional services, including hiring multiple medical providers, multiple qualified therapists. It’s competitive salaries you have to have people who are working in this field. You know, as a detective, having turnover in our interviewers and in the medical providers, all of that impacts kids. And so, fundraising is really important.

[00:44:39] We also apply for a lot of grants. I spend a lot of time applying for grants, both statewide and federally. We work with our local coordinated care organizations to see for the medical services that we provide to try to figure out an appropriate reimbursement rate for some of that. But the fundraising is a big piece. So, we have some smaller events. And then we also are really reliant on donors, especially for our mental health program. So, all of our services that we provide for families, including the medical and the ongoing mental health services are provided at no cost to children and families, no matter what their income is. We don’t even ask them what their income is. It doesn’t matter to us. So, we provide those at no cost, which means that we have to have someone who funds them.

[00:45:23] So, we look at grants for that. But then we also have a number of donors and business partners who believe in that, and believe in a child’s need and right to have evidence-based treatments after they have experienced abuse. And so, they might give $5,000 a year to help support some of those services to kids, and that is really important. We could not do it without them.

Dave: [00:45:49] And you mentioned the turnover. Staff wise, it sounds like you’re saying that there are times when people enter this job and realize that their job is going to be all about children being traumatized that you have to wear that every single day that you go to work, that it takes a certain person to be able to dive into that every day. I think you two are shining examples of that. I couldn’t handle it. I couldn’t do what you guys do. Is there a way for people who want to get involved, how might they go about volunteering or being a part of an advocacy center in their area?

Sarah: [00:46:29] Every advocacy center is different, and so they might have different opportunities. I would suggest maybe checking out their website. So, for us, we might have opportunities to serve on boards on different committees to do fundraising. Some centers maybe are hospital based, and so they don’t have any direct client volunteer opportunities, but they might have ways that you can help organize their clothing closet or make resource packets for families. So, there’s a lot of different ways to get involved based on the center. There are also still some smaller centers that are really reliant. They might have three or five staff members, so they are reliant on volunteers to help provide those direct services. And so, reaching out to them and figuring out how to get involved is absolutely what I would do.

Dave: [00:47:12] I’m going to try to bring a little levity to this since it’s heavy topic. Nichole, any weird, odd, holy shit moments in the interview room with a kid?

Nichole: [00:47:25] Always. Kids are unpredictable. I am actually a state trainer, so I had a blooper reel put together [giggles] of kids that did weird things in interviews. And a couple of them, I have kids get in my personal space and you have to just gently direct them. This is my bubble, kind of push them away. I’ve had a kid literally– We have easels and writing and drawing tools and he drew on my back. He started coloring on the back of my shirt. I had a kid almost try and get on my shoulders and I’m like, “No piggyback rides. No piggyback rides.” He was halfway up before I gently pushed him off to the side. Just kids are cute. It’s my favorite thing. I think that’s what keeps me going too is that I love working with kids, I love talking with kids and they’re so resilient. This isn’t always traumatizing for them. Maybe in the moment or telling their story, especially if it’s an adolescent who can process and really go deep and feel the impact, but with littles, that’s why they’re my favorite population to interview is they’re just, “Ah, this happened to me. It was a bad thing” and then, growing and moving forward. But they’re adorable.

Dave: [00:48:40] Nichole, Sarah, it feels like it’s been too long, but I always truly appreciate your appearances on our shows and truly appreciate your friendship as well.

Sarah: [00:48:52] We feel the same. It’s been so great to get to chat with you.

Nichole: [00:48:55] Appreciate you.

Yeardley: [00:48:58] The Briefing Room is produced by Jessica Halstead and co-produced by Detectives Dan and Dave. Executive producers are Gary Scott and me, Yeardley Smith. Our production manager is Logan Heftel. Logan also composed the theme music. Soren Begin is our senior audio editor. Monika Scott runs our social media, and our books are cooked and cats wrangled by Ben Cornwell.

[00:49:23] Thank you to SpeechDocs for providing transcripts. To read those transcripts or to hear past episodes, please go to our website at thebriefingroompod.com. The Briefing Room is an Audio 99 production. And I cannot go without saying thank you to you, all of you are fans, you are the best fans in the pod universe. And I can say with complete confidence, nobody is better than you.

[Transcript provided by SpeechDocs Podcast Transcription]

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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