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Defense Cross-Examines Police Chief Who Fired Derek Chauvin. Aired 3:30-4p ET

Aired April 5, 2021 - 15:30   ET





NELSON: An officer makes a traffic stop for speeding or something like that, smells drugs in the car, searches the car, finds a large amount of drugs, finds guns, et cetera, right?


NELSON: So what starts out as a relatively minor incident, a traffic ticket, can turn into a felony arrest, correct?

ARRADONDO: It could.

NELSON: And that, again, happens quite regularly?


NELSON: So when an officer -- let me back up a second. You would agree that being a police officer is a pretty dangerous profession.

ARRADONDO: There are inherent dangers with it.

NELSON: I've never had to get in a fight with anybody in my life in my job, right, but in your job it's probably more probable that that will happen, would you agree with that?


NELSON: Now, talking about the use of force. When an officer approaches a motor vehicle, is that considered to be one of the most dangerous initiations of contact between an officer and a citizen?

ARRADONDO: I don't have the exact statistics on it. It's certainly an encounter that officers are certainly more heightened. I know domestic response calls can also have a sense of heightened awareness for officers, but it's certainly something -- a traffic stop certainly raises an awareness for officers, yes, for their safety. NELSON: And that's because that's that suspect's sort of space, right?

The officer doesn't know what's in the car or in the apartment during a domestic situation. You're walking into someone else's territory, so to speak, right?


NELSON: And so there could, guns, there could be knives, there could be any number of instruments that could bring harm to a police officer, right?

ARRADONDO: There's a potential.

NELSON: Now, obviously there's tens of thousands of traffic stops and there's not -- not every traffic stop turns violent. I'm not suggesting that. But that does happen regularly, agreed? That traffic stops turn violent.

ARRADONDO: Yes, they can.

NELSON: So, when we're talking about the use of force policy under 5- 301.01, the last sentence that wasn't read before is the force used shall be consistent with current MPD training, agreed?


NELSON: Now there's a difference between a policy change and like a best practice change, would you agree with that?

ARRADONDO: Can you clarify?

NELSON: Sure. So, there are certain times where the policy with respect to the use of force may specifically change to prohibit a particular style or use of force, right?


NELSON: So thinking about in the old days, officers used to wear like weighted gloves to make their punches more effective, right?


NELSON: The policy changed and prohibited that, correct?


NELSON: And then there's a difference between, say, the evolution of defensive tactics, would you agree with that? I mean, the defensive tactics training you received in 1989 was much different than the defensive tactics training that's taught now, right?


NELSON: And I believe it was maybe 15 years ago that the Minneapolis Police Department started moving towards more body weight control sort of this jujitsu training as opposed to physically striking people to gain compliance?

ARRADONDO: If you're referencing policy or the training?

NELSON: Training.

ARRADONDO: I believe so.

NELSON: About 10, 15 years ago, right?


NELSON: And that was sort of highlighting the evolution, as you kind of described it in your direct examination, of policing since you've become a police officer.


NELSON: That's one way it's evolved.


NELSON: And when something changes per policy, can't wear weighted gloves anymore, for example, that's it, no more, agreed?

ARRADONDO: Yes. I agree, yes.

NELSON: But if the policy -- if training, for example, evolves into a best practice, it doesn't prevent an officer from learning a technique he learned earlier in his career, just may not be the best practice anymore?

ARRADONDO: So, I pause just to -- when you say that they're learning something, but if it's not in line with our policy, then that would not be prohibited. If I'm hearing you correctly.


NELSON: Let me try to explain. So, if an officer was trained in a particular handcuffing technique, and then they go to their defensive tactics training and they say, this is a better way to handcuff a suspect, it's not a policy change, it's just a best practice change, and they can still use the old way they did it.

ARRADONDO: Counselor, it would have to be something the training staff would have to -- not just an officer saying, I want to do it this way. And you know, it's something that would have to be authorized through our training staff.

NELSON: So we could talk about that kind of thing with the training, the use of force, defensive tactics training, right? That would be the better place -- better people to talk to about that?

ARRADONDO: Yes, yes.

NELSON: Now, when we're talking about active aggression and active resistance, sometimes those two things are happening simultaneously, agreed.


NELSON: Now, we were talking then about, again, the grand Graham versus Connor case and how that is incorporated into the Minneapolis Police Department policy. And I'm showing you exhibit 217 now. It should be up in front of you. What we're basically talking about is United States Supreme Court decision that outlined the objectively reasonable use of force standard, right?


NELSON: And Graham versus Connor is not limited to those three factors that you were read before, right? The Graham versus Connor analyses.

ARRADONDO: Yes, correct.

NELSON: Those are three that are kind of listed but ultimately it's not an all-inclusive list of considerations for the reasonableness of the use of force, agreed?

ARRADONDO: That would be my understanding, yes.

NELSON: And, in fact, what the policy reads is that the reasonableness of a particular use of force must be judged from the perspective of the reasonable officer on the scene rather than with the 2020 vision of hindsight, right?


NELSON: So we're looking at it in the instant and the moment based upon the objective standard, right?


NELSON: Now it also -- the policy also includes that the calculus of reasonableness must embody allowance for the fact that police officers are often forces to make split-second judgements in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation, right?


NELSON: And that's because when officers go to a situation, kind of like what we talked about before, what can be very -- initially very minor can grow into something major, agreed?


NELSON: Now I'll show you exhibit 219. You read a part of 5-304, which is threatening the use of force and de-escalation. And I want to talk to you a little bit about de-escalation. Have you heard the term, sometimes you have to escalate to de-escalate? Have you ever heard that phrase?

ARRADONDO: I have not heard that. NELSON: OK. So, in here you talk about -- or the policy talks about

that officers shall consider verbally announcing their intent to use force, including displaying an authorized weapon as a threat of force, right? So, sometimes an officer has to take out his gun, say, hey, I mean, that's a use of force in that instance, right?


NELSON: And if you don't listen to me, you know, I'm going to use force. It's a pretty clear occasion that force could be used when you have a gun pointing at you, would you agree with that?


NELSON: But other things such as chemical irritants or tasers, it's not just a firearm, right?


NELSON: And so sometimes when an officer has to do is command the presence, right? They have to take control of the situation.


NELSON: And sometimes that's not particularly attractive, is it?

ARRADONDO: Could you explain?


NELSON: Sure. The use of force is not something that people like to watch generally, right?

UNIDENTIFIED MALE: Objection, speculation.


NELSON: Would you agree the use of force is not an attractive notion?

ARRADONDO: I would say that use of force is something that most officers would rather not use, yes.

NELSON: Right. And you described in your direct examination how the single greatest way that the Minneapolis Police Department could be judged is based upon how the public perceives its use of force, right?


NELSON: So, it has a tendency to garner a lot of attention.


NELSON: So much so that citizens have become more prone to record observed interactions with police, right?

ARRADONDO: Yes. NELSON: Something you didn't have to deal with back in 1989, right?


NELSON: So essentially what this policy 5-304 in terms of threatening the use of force it's contained within these de-escalation concept, right? So sometimes you have to display a weapon to deem command so that you can de-escalate, right?


NELSON: Now when we're talking about -- is it fair to say pretty much every single one of these use of force policies contain some phrase, if reasonable or if practical? There's limitations on the use of force, right?

ARRADONDO: Yes, there are limitations, yes.

NELSON: And it's a situation by situation, right?


NELSON: And again, if we go back and look at the language of the Graham versus Connor and the policy that's contained by Minneapolis Police Department, it's the use of force has no precise objective, singular rule, it's different in every case?


NELSON: So, for example, in the de-escalation policy 5-304.b.1, de- escalation is advisable when it's safe and feasible, correct?


NELSON: And sometimes de-escalation, again, includes the use of force, right? The use of force can be a de-escalation tactic.

ARRADONDO: Counselor, I was thinking of your example of displaying your weapon and so I don't have a lot of knowledge in terms of physical force being used to actually de-escalation a situation, but a threatening use of force or threatening verbally. I'm more familiar with that.

NELSON: OK. So again if we were to talk to the use of force or defensive tactics --

UNIDENTIFIED MALE: Objection. Argumentative.

CAHILL: Overruled.

NELSON: They would be the best source of that.

UNIDENTIFIED MALE: Objection, argumentative.

CAHILL: Overruled.


NELSON: But the purpose of de-escalation, agreed, is to attempt to slow down or stabilize the situation so that more time, options and resources become available to the officer?


NELSON: Basically, slow down, everyone kind of calm down, let's try to relax, right?


NELSON: But it's a lot more -- the process de-escalation is not just trying to talk somebody out of doing something. There are actions that are important, there may be reactions that are important, and the de- escalation policy includes some examples of those things, right?


NELSON: Such as placing barriers between an uncooperative subject and an officer?


NELSON: And sometimes those barriers are another officer, right?


NELSON: Containing a threat, right? I mean, that's one of the examples in policy.


NELSON: By containing a threat, that can include physically restraining someone so that they don't upset another person, right?


NELSON: Or cause another person to have a violent reaction towards them or officers, right?


NELSON: Moving from a position that exposes officers to potential threats to a safer position, right? So kind of retreating in certain circumstances?


NELSON: Reducing exposure to a potential threat using distance, cover or concealment, right? So hiding, say, behind a squad car, right?



NELSON: Avoiding physical confrontation, that's probably a pretty big one, right?


NELSON: And using verbal techniques to calm an agitated subject or promote rational decision-making, that's kind of down towards the end.


NELSON: And lastly, calling additional resources? Right?


NELSON: We talked about exhibit 230. Showing you exhibit 230, which is the emergency medical response. You would agree that the policy requires Minneapolis police employees to request an emergency medical service as soon as practical, right?


NELSON: If a person comes into contact having an acute medical crisis and any delay in treatment could potentially aggravate the severity of the medical crisis, right?


NELSON: So sometimes officers will call for EMS, not thinking it's a major issue, when suddenly it becomes apparent they can step up or request a quicker response from EMS, right?


NELSON: And that is something that an officer can do to ensure the medical treatment of the suspect that they have or the person they're in contact with, right?

ARRADONDO: Counselor, to ensure -- I'm sorry, to ensure --

NELSON: Sorry. It's been a long week. To ensure the medical condition of the suspect, to help with that.


NELSON: Right. Get ems there as quickly as possible, right?


NELSON: Now, we didn't talk about the maximal restraint technique. You're familiar with the policies surrounding that?


NELSON: I'm going to show to you what's been admitted as exhibit 225. Can you describe what the maximal restraint technique is?

ARRADONDO: Yes. Counselor, the maximal restraint technique is -- has often been referred to as the hobble. And that is a -- it's a method of if officers are dealing with a typically a combative or aggressive person, in order to protect them or even property, it's placing basically attaching a cord of the legs to the waist so the person, the individual does not have free movement of their legs. So it's securing them, again, usually by their ankles. If you're prone, bringing that up to your waist and securing it.

The maximal restraint technique or the hobble, if it's used, a supervisor has to respond to the scene. You cannot transport anyone prone in that position due to the risk of the breathing. And so -- but that is -- counselor, that would be my understanding of the MRT, or the maximal restraint technique.

NELSON: So, you talked a little bit in terms of the use of force, how officers are kind of re-evaluating their use of force from time to time, right? They should be at least, right?


NELSON: So if officers decide to use the maximal restraint technique and then decide, hey, we know -- and then later decide not to use it, that is kind of adjusting that use of force?

ARRADONDO: I would -- counselor, with some clarity. I don't know if that -- what I mean by that is, if you were to have a person handcuffed and prone on their stomach on the ground on pavement, and you had two officers, let's say, securing their legs to the back of the waist, you in a way are still employing what that technique is about anyway, so there can be some variances to that.



ARRADONDO: Does that make sense?

NELSON: It does. So let's assume that you've got two officers pulling the legs forward essentially employing that aversion so to speak of the maximal restraint. But then they release him, and they say we're not going to hobble this person. We're not going to employ the MRT. You're going from a decision to employ that technique backwards down the continuum in terms of the use of force. Would you agree with that?

ARRADONDO: Counsellor because these types of uses of force can be problematic in terms of there's a high risk to them. So meaning that if you're going to take that initiative to do that alternative version in the first place, you would want to get ahold of a supervisor because something could happen in terms of that -- that person. And so --

NELSON: I'm not asking in terms of the policy. I'm asking in terms of sort of the use of force and the critical decision-making model, right? You described how the use of force. You have to go through this critical decision-making model. How much force am I going to use and sometimes you have to back off the use of force, agreed?

ARRADONDO: Yes. NELSON: And sometimes you have to go forward with the use of force,

meaning use even more force?


NELSON: Right. And it's this constant re-evaluation, agreed?


NELSON: And so when you have officers who make a decision that the -- that the facts and circumstances would warrant using the hobble device but then later decide not to employ that device, that is that critical decision-making model in action, agreed?


NELSON: And it would be a reduction in the use of force and may still require supervisors to be on scene, policy-wise, but it is a reduction in the use of force, agreed?

ARRADONDO: Counsellor, are we talking specifically the events of May 25th?

NELSON: I'm talking generally.

ARRADONDO: In general, yes.

NELSON: If you would agree ultimately that all of the Minneapolis Police Department policies relevant to the use of force, emergency medical response, emergency medical treatment, all of these policies are by their very language are situationally dependent, right? They all say if the circumstances allow, if time permits, if it's safe, to have a qualifier to them, agreed?

ARRADONDO: Yes, I would agree with that.

NELSON: Let me show you exhibit 231. At the bottom of exhibit 231 is the crisis intervention policy, and at second page includes the definition. Could you read the entire definition of what a crisis is?

ARRADONDO: Yes. An event or situation where an individual's safety and health are threatened by behavioral health challenges to include mental illness, developmental disabilities, substance use or overwhelming stressors. A crisis can involve an individual's perception or experience of an event or situation as an intolerable difficulty that exceeds the individual's current resources and coping mechanisms and may include unusual stress in his or her life that renders him or her unable to function as he or she normally would. The crisis may but not necessarily result in an upward trajectory or intensity culminating in thoughts or acts that are possibly dangerous to himself, herself and/or others.

NELSON: All right. So generally speaking, again, not relevant to the May 25th of 2020 incident, we'll get there in a minute, but when we talk about a general police response, sometimes the police may respond to something and the person they are dealing with is not in a crisis. Agreed?


NELSON: But other people may be perceiving what is happening, and it could become a crisis to that person?


CAHILL: If you could rephrase.


NELSON: Sure. People who observe -- would you say that people who observe police interactions with people, especially the more physical or the use of force types, that's -- that could turn into a crisis for an observer.

UNIDENTIFIED MALE: Objection, irrelevant.

CAHILL: Sustained, is calling for speculation.

NELSON: So in terms of a definition of a crisis. A crisis may involve an individual's perception or experience of an event or a situation as an intolerable difficulty that exceeds that individual's current resources and coping mechanisms, right?


NELSON: That doesn't necessarily mean that you are -- the person with whom you are arresting or having contact with is going to be the person who will experience the crisis, agreed?

UNIDENTIFIED MALE: Objection, irrelevant.

CAHILL: Overruled.

ARRADONDO: Counsellor, respectfully you're saying that the person who is witnessing a situation with the officers, that situation may cause them to be in crisis?

NELSON: Correct.

ARRADONDO: It could potentially.

NELSON: Right. And the crisis may but not necessarily result in an upward trajectory or intensity culminating in thoughts or acts that are possibly dangerous to him, her or others, right?

ARRADONDO: Counsellor, just -- this is the person who is watching this?

NELSON: Right.

ARRADONDO: It could.

NELSON: Right. So people are watching something that they appear to believe, or they believe is wrong or contrary to police policy that may cause them to get upset and that level of upset -- that level of volatility may grow throughout the course of the interaction?

UNIDENTIFIED MALE: Objection, irrelevant, calls for speculation and beyond the scope.

CAHILL: Overruled. It's within the scope.

ARRADONDO: It could.

NELSON: Because ultimately part of the training that Minneapolis police officers have to go through is how to deal with crowds who observe police interactions, right?


NELSON: Crowds that may be upset with police interaction, right?


NELSON: I mean, there are classes through the training academy, there are classes through in-service specifically dealing with how to deal with crowd control, right?


NELSON: And all of this is to revert in part back to that de- escalation process as well, right?


NELSON: So part of it as a crowd grows or becomes more upset, part of it is to try to de-escalate which can involve trying to avoid a physical confrontation, right?

ARRADONDO: Yes, it could.

NELSON: Trying to stay safe, concealed and covered, right?


NELSON: Not yelling back at somebody, not engaging with them verbally, right?


NELSON: And sometimes when an officer tries to de-escalate a situation and someone is so upset, right, sometimes they don't hear what the officer tells them? Would you agree with that?

UNIDENTIFIED MALE: Objection, speculation.

CAHILL: That calls for speculation. That is sustained.

NELSON: Is it possible, generally speaking, that someone's own crisis may prevent them from hearing what an officer is telling them? CAHILL: Hold on. The objection is sustained. The answer will be


NELSON: So you -- you testified that you've watched the body cameras, correct?


NELSON: I'm going to show you I don't know -- Mr. Swisher, this is exhibit 100-8, which is a ten-second, approximately five-second clip of Alexander Keung's body-worn camera. It's all (INAUDIBLE) and I gave you a copy of it.

UNIDENTIFIED MALE: Is this in evidence?

NELSON: Not yet no. I'm just telling you first and foremost that's what it is.

I'm going to show you on your screen a short clip of a video to see if this would be contained in what you've watch, and I need to --

You would agree that that appears to be taken from one of the officer's body cameras, May 25th, 2020 at approximately 20:25.33.


NELSON: And, again, watching it without sound.