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Prosecution Interviews Police Use-of-Force Instructor; Use-of- Force Instructor: Should Use "Least Amount of Force" That is Reasonable for the Situation; Police Use-of-Force Instructor: "The Minimum Amount of Force That You Need" to Detain Someone "Is What You Should Use;" Use-of-Force Instructor: Unconscious Neck Restraint Only Allowed For "Active Aggression," "Life-Saving Purposes," Not "Passive Resistance;" "I Would Say No," Chavin's Neck Restraint on Handcuffed, Controlled Person Would Not Be Authorized Use of Force. Aired 11:30a- 12p ET.

Aired April 6, 2021 - 11:30   ET



STEVE SCHLEICHER, PROSECUTING ATTORNEY: I would like to show what's been marked for identification as exhibit 119. Exhibit 119 is a slide deck that's labeled 2018 defensive tactics in service. Is that right?


SCHLEICHER: If you could show the witness the second page.

And do you see your name on the slide deck listed at the top of the instructors.

MERCIL: Yes, sir.

SCHLEICHER: Are you familiar with the contents of this particular PowerPoint presentation or slide deck?

MERCIL: Yes, sir.

SCHLEICHER: Did you -- did you help create it?

MERCIL: Yes, sir.

SCHLEICHER: And you approved its use during the training, is that right?

MERCIL: That's correct.

SCHLEICHER: And it's listed as a fall of 2018. So this is what would have been provided for in service training. So experienced performing officers during this 2018 session, correct?

MERCIL: That's correct.

SCHLEICHER: And is the training that's provided, you know, you have quite a few Minneapolis police officers who have to go through the training, right?

MERCIL: Yes, sir.

SCHLEICHER: So they're not all taking it at the same time?

MERCIL: That's correct.

SCHLEICHER: But if someone is -- has completed the fall 2018 in service defensive tactics training, does that mean that they saw this slide deck?

MERCIL: Yes, sir.

SCHLEICHER: I'll offer exhibit 119.

UNKNOWN: 119 is received.

SCHLEICHER: Then we talked about training records as well and sign in sheets. And so I'd like to show the witness exhibit 124. Exhibit 124 is labeled 2018 annual in service training program group B, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And I see your name at the top as one of the instructors, is that right?

MERCIL: That's correct.

SCHLEICHER: Yes. This is a sign-in sheet that would show different officers who had signed in having taken the training?

MERCIL: That's correct.

SCHLEICHER: Turn to page two. Do you see the Derek Chauvin on this training roster?

MERCIL: Yes, sir.

SCHLEICHER: Are you familiar with that name, Derek Chauvin?

MERCIL: Yes, sir.

SCHLEICHER: Chauvin, I'm sorry. Derek Chauvin.

Do you -- would you recognize the -- Mr. Chauvin if you saw him in the court room today?

MERCIL: Yes, sir.

SCHLEICHER: Do you see him today?

MERCIL: I do, sir.

SCHLEICHER: Would you please point to him and describe what he's wearing?

MERCIL: Yes, sir. He's got a dark blue tie, light blue shirt and a gray jacket.

SCHLEICHER: May the record reflect the witness has identified the defendant.

UNKNOWN: (Inaudible).

MERCIL: It will (ph).

SCHLEICHER: I go back to PH1 and at this time I will offer exhibit 124.

UNKNOWN: Pay attention (ph), 124.


UNKNOWN: 124 is received.

SCHLEICHER: Permission to publish 124. All right. If you could highlight the instructor block and title. All right. Again, you see that this is the 2018, it's -- this training was provided on October 1, 2018; is that right?

MERCIL: Yes, sir.

SCHLEICHER: And you are listed as one of the trainers, correct?

MERCIL: That's correct.

SCHLEICHER: OK. And if you could go to page two. And highlight please. And there you can see that the training was attended by the defendant. Is that correct?

MERCIL: Yes, sir.

SCHLEICHER: You can take down.

How many times do you think you've provided training like what we saw in the exhibit to various officers over the years?

MERCIL: Hundreds of times, sir.

SCHLEICHER: And is this a slide deck that you identified as being the 2018 version fairly consistent with prior versions of the use of force training you've provided?

MERCIL: The documentation, sir?


MERCIL: Yes. SCHLEICHER: So when you do use of force training, there are generally two components, right, there's a classroom component and there would be more of the tactical component, you know practical exercises. Is that right?

MERCIL: That's correct.

SCHLEICHER: And what we saw in the exhibit was the -- was the classroom component?

MERCIL: I believe so.

SCHLEICHER: OK. Well, what I'd like to do now is publish exhibit 119.


And just like you've done hundreds of times before, I'm going to have you explain some of the selected slides to jury. All right?

MERCIL: Yes, sir.

SCHLEICHER: All right. Please turn to page two, 119. And again, you can see your name listed on this in-service training as one of the instructors. Is that right?

MERCIL: Yes, sir.

SCHLEICHER: And turn to page four. Page four of this slide deck contains a policy reference, is that right?

MERCIL: Yes, sir, it does.

SCHLEICHER: And you testified that you're familiar with the policies, the use-of-force polices. One of the objectives of training is to impart the polices, teach those policies to the attending officers?

MERCIL: Yes, sir.

SCHLEICHER: And so this is from the Minnesota -- I'm sorry -- the Minneapolis Policy Manual 5-301. Could you please describe for the jury what this slide is intended to convey?

MERCIL: Yes, sir. There's -- looks like there's three bullet points. The first one is sanctity of life and the protection of the public. That is the corner stone of our use-of-force policies is the sanctity of life and the protection of the public.

Also, clear and consistent force policies. We like our policies to be easily understood. And then the use-of-force standards do fall under the 4th Amendment reasonableness standard.

SCHLEICHER: Since we're talking about use of force, I'd like to turn to page seven of the exhibit, 119. When we talk about use of force, explain to the jury what -- what is force?

MERCIL: It's listed on this slide here. Intention police contact involving any weapon, substance, vehicle, equipment, tool, device or animal that inflicts pain or injury to another; physical strikes to the body; physical contact to the body that inflicts pain or injury; or restraint applied in a manner or circumstance likely to produce injury.

SCHLEICHER: So you train officers that restraint is a form of force, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And when apply force or applying restraint, the restraint has to be reasonable, correct?

MERCIL: Correct.

SCHLEICHER: And it has to be reasonable at the time it starts and the time it stops?

MERCIL: Correct.

SCHLEICHER: You familiar with the concept of proportionality?

MERCIL: Yes, sir.

SCHLEICHER: If you could turn to the exhibit page eight. When you discuss proportionality to trainees, you use this exhibit, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And in general, without using the slide for a moment, just explain to the jury as you would a group of trainees what is proportional force?

MERCIL: Well, you want to use the least amount of force necessary to -- to meet your objectives, to control.

And if those lower uses of force do not work, would not work, or to unsafe to try then you can increase your level of force against that person.

SCHLEICHER: I see. Do not work, would not work or unsafe to try; it sounds like you maybe have used that phrase a time or two.

MERCIL: Yes, sir.

SCHLEICHER: Is that a phrase that you've used in pretty much every training that you've given on use of force?

MERCIL: When there's a PowerPoint or we talk about use-of-force, we discuss proportionality regularly.

SCHLEICHER: OK. And you said that you want to use the least amount of force as necessary?

MERCIL: Yes, sir. SCHLEICHER: Why is that?

MERCIL: Because if you can use a least amount of -- a lower level of force to meet your objectives it's safer and better for everybody involved.

SCHLEICHER: And when we talk about proportionalities proportional to what?

MERCIL: I'd say the level of resistance you're getting?

SCHLEICHER: And the level of resistance would be dependent upon who?

MERCIL: The subject that you're using force upon.

SCHLEICHER: The specific subject?

MERCIL: Yes, sir.

SCHLEICHER: All right. At this time I'm going to ask to publish exhibit 110. And this is an item that's already be received into evidence. Do you recognize that's an (ph) exhibit 110?

MERCIL: Yes, sir.

SCHLEICHER: What is that?

MERCIL: Well, it's technically called a defense and control response training guide but a lot of people refer to this as a use-of-force continuum.

SCHLEICHER: All right. And we were (ph) discussing the concept of proportionality, you talked about subject behavior, is that right?

MERCIL: Yes, sir.

SCHLEICHER: Subject behaviors over here on the left hand side, correct?

MERCIL: That's correct.

SCHLEICHER: And the subject behavior can vary from, I guess, nothing to passive resistance, all the way to active aggression. Correct.


MERCIL: Yes, sir.

SCHLEICHER: And then in terms of proportionality, there's various tools that are available to a law enforcement officer based on the subjects behavior, correct?

MERCIL: That's correct.

SCHLEICHER: And some of these tools, if we can just take an example with a active ingression (ph) one response could be, what? MERCIL: Up to and including deadly force.

SCHLEICHER: But then for lower levels of subject activity such as passive resistance, right, that could include like presence and verbalization.

MERCIL: That's correct.

SCHLEICHER: All right. And is this something that you use with law enforcement officers you trained to graphically represent the concept of proportionality?

MERCIL: I'm not sure if we've used this specific proportionality of force but we -- we have used this in the past, to -- to describe like as levels of resistance increase that officer's response and also increases.

SCHLEICHER: OK. And -- and similarly as levels of resistance decrease, what should the officer do?

MERCIL: You should deescalate use-of-force as well.

SCHLEICHER: OK. And that's actually listed on this response and control guide, isn't it?

MERCIL: Correct.

SCHLEICHER: If you would clear that, your honor.

And you'd indicated that you train officers that they should use the least amount of force that is available or that's reasonable under the circumstances, is that right?

MERCIL: To meet the objectives, yes.

SCHLEICHER: And explain that.

MERCIL: So you want to use the least amount of force to -- if you're trying to control somebody, it might be a lower level of force and if you're trying to get them in handcuffs and they're fighting. So you want to use the lowest level of force possible in order to meet those objectives.

SCHLEICHER: And lower levels of force, look (ph), fair to say when you're using force people can get hurt.

MERCIL: Yes, sir.

SCHLEICHER: The subject can get hurt, the officer can get hurt.

MERCIL: Yes, sir.

SCHLEICHER: Is that one of the reasons why it's better to use a lesser amount of force?

MERCIL: Yes, sir. SCHLEICHER: And another reason is that it's required, is that right?

MERCIL: Yes, sir.

SCHLEICHER: If you could go back to exhibit 119 and publish page 12. And you -- you trained this to officers, this is back to your training materials, is that right?

MERCIL: Yes, sir.

SCHLEICHER: The Minnesota statutes provide and this is integrated into the MPD policy, the concept of minimum restraint, is that right?

MERCIL: That's correct.

SCHLEICHER: And I'd ask you if you could please highlight the first section. I'm sorry, the second section. Right. What does the policy in the statute provide regarding the amount of restraint that can be used on an arrested subject?

MERCIL: The first line talks about the officer making the arrest. May not subject the person arrested to any more restraint than is necessary for the arrest and detention.

SCHLEICHER: What does that mean?

MERCIL: It means the minimum of amount of force that you need to accomplish the objective of arresting and detaining somebody is what you should use.

SCHLEICHER: I'll -- your familiar with the circumstances I bring you hear today, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And I need to show you a photo that's been received into evidence and its exhibit 17. I'd like to publish that. Right. And you see exhibit 17 and you see the defendant on top of a subject that you know to be George Floyd. Is that right?

MERCIL: Yes, sir.

SCHLEICHER: Is this a use-of-force?

MERCIL: Yes, sir.

SCHLEICHER: If you could take that down please.

I want you to discuss in terms of using force and using it safely, what you teach trainees about sort of the frailty of the human body. It's important to be careful with people, is that right?

MERCIL: Yes. It's very -- very important to be careful.

SCHLEICHER: And there's some parts of the body that are more prone to injury than others, correct? MERCIL: That's correct.

SCHLEICHER: And you train on that, is that right?

MERCIL: Yes, sir.

SCHLEICHER: If we could display exhibit 119, page 49.

Now this is from strike (ph) training, is that right?


MERCIL: That's correct.

SCHLEICHER: And is it generally helpful in describing what some of the more sensitive parts of the human body are as you train Minneapolis police officers?

MERCIL: Related to strikes, yes.

SCHLEICHER: Could it be related to other types of restraint as well?

MERCIL: I think you could stretch that some. I don't know exactly how to -- what's the question exactly, again? I'm sorry.

SCHLEICHER: Is it fair to say that the areas that are marked in red, the red zones are more prone to injury than other parts of the body that could be serious?


SCHLEICHER: So for example, the neck?


SCHLEICHER: And the head?

MERCIL: Correct.

SCHLEICHER: And -- and the sternum of the chest, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And this wouldn't just pertain to strikes, it could also pertain to pressure, couldn't it?


SCHLEICHER: Is that something you probably knew before you even did any use-of-force training?

MERCIL: Yes, sir.

SCHLEICHER: Now, I'd like you to then discuss with the jury the concept of neck restraints. And if we could publish page 52 of the exhibit. And looking at the time period that you were doing this training, neck restraints were authorized by MPD policy, correct?

MERCIL: Yes, sir.

SCHLEICHER: Can you please describe the training that you provided to Minneapolis police officer regarding the use of neck restraints?

MERCIL: Yes, sir. We would go over the techniques, definitions of neck restraints and we'd go through different reps of the neck restraint to -- to get the officers comfortable in doing it.

SCHLEICHER: Could you just give the jury an overview of what a neck restraint is?

MERCIL: Yes, sir. So neck restraint is constricting the sides of a person's neck. And they refer to it as vascular neck restraint, so you're slowing the blood flow to and from the brain with the intent to gain control of a subject.

SCHLEICHER: And there are two different types of neck restraints in the MPD policy, is that correct?

MERCIL: Yes, sir.

SCHLEICHER: And those are what?

MERCIL: Yes, sir.

SCHLEICHER: And those are what?

MERCIL: The two levels are conscious neck restraint. So that means you've wrapped somebody up and their still conscious and you can gain compliance with many with that. And then there's unconscious. And that's applying pressure until the person when they're not complying you put enough pressure that they become unconscious and then therefore compliant.

SCHLEICHER: How does one actually apply a neck restraint?

MERCIL: We teach a couple of different techniques but the basic idea is you use your elbow as a landmark and you place your arm across. So your bicep would be on one side of the neck and your arm would be on the -- forearm on the other side of the neck.

And then there's a couple of different hand placements. But then you apply pressure with head pressure on both sides of the neck to gain compliance.

SCHLEICHER: And you -- you were demonstrating -- were you using -- you were using your arm to do that?

MERCIL: That's correct.

SCHLEICHER: Can it also be done with the leg?

MERCIL: It can be done with the leg.

SCHLEICHER: Does MPD train on how to do it with the leg?

MERCIL: We may show the younger officers in the academy what that looks like but we don't train leg neck restraints with the officers in the service. We -- and as far as my knowledge, we never have.

SCHLEICHER: How -- how would a trained neck restraint work? I'm sorry. How would a trained leg neck restraint work?

MERCIL: People that watch MMA, so professional fighters, they call it the Triangle Choke. And I use that term choke loosely, that's just what it's called. But that's when you place your -- your leg over somebody's back across the side of their neck. And then you trap their arm in.

So the person ends up having one arm in and their arm causes pressure on one side and the leg causes pressure on the second and you can actually render somebody unconscious if you hold that long enough.

SCHLEICHER: The -- what part of the leg?

MERCIL: Usually it's the inner thigh.

SCHLEICHER: Inner thigh. So in -- in this scenario, using a leg to do a neck restraint, would the -- would the knee sort of replace the elbow in terms of placement or how would you describe it?

MERCIL: I would say the knee doesn't really replace the elbow. Your thigh would be across the side of somebody's neck, your leg across their back. And you protect the airway really with the space that is created with their arm being pinned in there.

SCHLEICHER: If you could please display the next page, page 53. Use of neck restraints, can you describe in using those concepts of proportionality when it's authorized to use a neck restraint of the two different varieties.

MERCIL: Yes, sir. On subjects who are actively aggressive, which means assaultive, they're actively resisting and other techniques haven't worked, you can use it then.


And then on the bottom it says no, that you can't use it against subjects who are passively resistant.

SCHLEICHER: And if you could go to the next slide, page 54. And after a neck restraint is applied, there's certain guidelines that you train that have to be followed, is that right?

MERCIL: That's correct.

SCHLEICHER: For the care of the individual upon whom the neck restraint was applied?

MERCIL: Yes, sir. SCHLEICHER: And if we could publish exhibit 110 again. And bringing this specific topic back to the concept of proportionality -- could you enlarge this please?

All right (ph). Do you have one of the -- a stylus up there?

MERCIL: (Inaudible). Yes, I do.

SCHLEICHER: You can -- you can touch the screen and make a mark here, unconscious neck restraint. An unconscious neck restraint is when the person would actually be rendered unconscious, correct?

MERCIL: That's correct.

SCHLEICHER: And intentionally so?

MERCIL: Yes, sir.

SCHLEICHER: Could you please underline unconscious neck restraint as you see it and as a response and control guide?

MERCIL: Yes, sir.

SCHLEICHER: And what subject activity -- what level of subject activity would be required to use an unconscious neck restraint?

MERCIL: Well, according to this chart it's in the red area so it would be active aggression.

SCHLEICHER: All right. And do you agree with that?

MERCIL: Yes. I -- I -- I think on the last slide we talked about, active resistance if other techniques didn't work. But definitely in active aggression is where it's placed.

SCHLEICHER: If we looked and you can also find a conscious neck restraint. And that's the neck restraint for the purpose of control, correct?

MERCIL: Correct.

SCHLEICHER: Could you underline where that is in this force continuum, exhibit 110.

And -- so the conscious neck restraint is authorized in circumstances where there's, in fact, active resistance. Is that right?

MERCIL: Yes, sir.

SCHLEICHER: So then if there was something like passive resistance, right, the conscious -- neither the conscious neck restraint nor the unconscious neck restraint would be authorized, is that right?

MERCIL: Would not be authorized?

SCHLEICHER: Would not be authorized. MERCIL: That is correct.

SCHLEICHER: And an unconscious neck restraint would not even be authorized form some forms of active resistance, would it?

MERCIL: That's correct?

SCHLEICHER: OK (ph). And if the subject is offering no resistance, obviously than no neck restraint would be authorized.

MERCIL: That's correct.

SCHLEICHER: Or any restraint would --

MERCIL: Or any?

SCHLEICHER: Or any restraint if there's no --

MERCIL: Yes, generally, no.

SCHLEICHER: OK. In addition to the classroom training, you actually teach officers, show them physically how to do these sort of neck restraints?

MERCIL: Yes, sir.

SCHLEICHER: At this time I'd like to republish exhibit 17. Sir, is this an MPD trained neck restraint?

MERCIL: No, sir.

SCHLEICHER: Has it ever been?

MERCIL: Not to my -- neck restraint, no, sir.

SCHLEICHER: Is this a MPD authorized restraint technique?

MERCIL: Knee on the neck would be something that does happen in use- of-force that isn't unauthorized.

SCHLEICHER: And under what circumstances would that be authorized? How long can you do that?

MERCIL: I don't know if there's a timeframe, it would depend on the circumstance at the time.

SCHLEICHER: Which would include what?

MERCIL: The type of resistance you're getting from the subject that you're putting your knee on.

SCHLEICHER: And so if there was, say for example, the subject was under control and handcuffed, would this be authorized?

MERCIL: I would say no.

SCHLEICHER: You can take that down, please.

Continuing in this defensive tactics presentation, if you could go back to exhibit 119, page 56.

You also teach officers the proper handcuffing and techniques, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And -- and according to the handcuffing techniques. The handcuff -- they're to be handcuffed behind the back and the handcuff is to be double locked.

UNKNOWN: Your honor, can we have a sidebar?


JOHN KING, CNN HOST: I'm John King in Washington. You're watching a quick sidebar conversation here during testimony in the Derek Chauvin trial. The prosecution is question Lieutenant Johnny Mercil, he is a training officer at the academy, just moments ago.

A very compelling testimony. They showed the photo of Officer Chauvin, then Officer Chauvin kneeling on the neck of George Floyd. And John -- Lieutenant Mercil said no, that was not authorized, especially in these cases right here.

The lawyer is now having a sidebar with the judge. Let's bring in our analysts who have been watching this trial throughout. A former federal prosecutor, CNN legal analyst, Laura Coates; a former D.C. and Philadelphia police chief and commissioner, Charles Ramsey, also with us.

Laura, the testimony just moments ago from Lieutenant Mercil, when they showed the picture of Officer Chauvin kneeling there -- hold on just -- they're going to take a break in the court right now, I believe. Let's just wait. Hold on. There we go, the judge has just announced there's a quick -- the morning break in the court.

So Laura Coates, Lieutenant Mercil was the training officer. He went through the regimen. And right in the end when they brought up the photo again, the very disturbing photo seen around the world of Officer Chauvin kneeling on the neck of George Floyd, the prosecutor asked quite simply, is that authorized, in your view, under those circumstances and --

LAURA COATES, CNN SENIOR LEGAL ANALYST: The answer was no. And not -- not quite the emphatic one but the idea here was that it had the same gravitas, John. I mean think about it. We began by hearing from this particular officer that there was a continuum of force that he is trained on use of force and he's supposed to use the least amount of force necessary to control your suspect. The least amount of force necessary.

It's by policy, it's by training, it's by statute. We saw all of those things. Then we go to the idea of well, how about neck restraints? It's kind of been the lingering question for jurors here and the audience worldwide about why would this officer go so rogue. You mean to tell me no one's ever trained about the process of using a neck restraint.

Well, he goes through it, methodically talking about this idea of what types of restraints you can use, when they're appropriate. Still looking to that notion of the least amount of force that needs to be used here.

And as he brought us along this journey of how training operates, we come to this conclusion that I think is a very, very strong one and very, very compelling that not only do you not use any neck restraints, they're not authorized, he said, if the person is not resisting, is under control and is in handcuffs.

What have we seen through the video? That George Floyd at the time that the neck restraint was applied was in control, hand cuffed, not resisting. It counters that exact defense strategy there.

And then he concluded, as you said, John; the idea here that it has not even not only been not authorized, it hasn't even been trained to do so. This is extraordinarily compelling testimony from somebody who actually is the person to train officers like and specifically Derek Chauvin.

We saw that he actually signed a form there. He had not only heard about the training, he attended the training.

KING: And, Chief, to that point; people who watch T.V. courtroom shows, they tend to be more dramatic. But I think one of the ways the prosecutors here have been so effective is there very calm methodical approach and using the heat map, the slide if you will, from the training that showed the red area.

Which is if your -- if your suspect or your subject is actively resisting, then yes, officers then have to consider more aggressive use of force including if your -- if the suspect is fighting, resisting, trying to get away; possibly using a neck restraint.

But that -- what was compelling was to watch -- go through the training slides and then hear Lieutenant Mercil simply say, when they showed the dramatic photograph, that under those circumstances George Floyd is prone, he is handcuffed.

We do know, as Laura pointed out from the video, that that was not a -- that was not in the moment. That he had been so for more than nine minutes and then -- and then testimony, is that, sir, necessary? Do you train that? Very powerfully saying no.

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: No listen, this is very damaging testimony for the defense. I mean earlier we were talking about the critical decision making model, which actually supplements the use-of-force continuum, as it's called.

And when you see the continuum, depending on the actions of the offender, the use of force changes, obviously. It could escalate all the way up to and including deadly force. But there's also a part of it that deescalates as the resistance and as the behavior of the individual changes, so should your use of force.

And so you want to try to use the lowest level to begin with, only add force necessary to affect an arrest. If you do have to use a higher level of force as soon as you have a person under control, as soon as the resistance lessens so should your force.

And that's -- that's a hurdle that the defense is not going to be able to overcome. It is what it is, as they say.

And you -- here you have the trainer, the person who actually overseas it. And from his history in the -- in the department, the units he's worked in, this is a guy who's got a lot of experience, believe me. So he's very credible.

KING: Right. And that, Laura, I think walk through as a prosecutor what you're looking to get out of a witness like this at this very delicate moment in the sense that not only die Lieutenant Mercil testify he's not trained to do that. He actually specifically said he's trained not to do that.