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Defense Cross-Examines LAPD Use-of-Force Expert. Aired 11- 11:30a ET

Aired April 7, 2021 - 11:00   ET

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


LAURA COATES, CNN SENIOR LEGAL ANALYST: The jurisdiction come and try to buttress what we already know.

[11:00:03]

We want the jurors and the prosecution to know that this is not just an inside perspective, but a universally held belief about the unreasonableness of this officer's use of force. And a phrase that the defense counsel used was, hey, reasonable minds can disagree. It seems here is not the case.

KATE BOLDUAN, CNN HOST: And it was a quick sidebar, and let's jump back in.

ERIC NELSON, DEFENSE ATTORNEY: -- this morning.

SGT. JODY STIGER, HIRED PROSECUTION EXPERT ON USE OF FORCE: No, we had a brief conversation, but no trial prep.

NELSON: OK. You or I never met or spoke, right?

STIGER: Correct.

NELSON: Are you aware that prosecutors gave me summaries of those meetings?

STIGER: Yes.

NELSON: So, you also testified yesterday that in your role with the Los Angeles Police Department and the office of the investigator --

STIGER: Inspector general.

NELSON: Inspector general, thank you -- you reviewed thousands of use-of-force cases, right?

STIGER: Yes.

NELSON: And it's fair to say that those cases range in terms of the use of force, right, the times of force use are very variable?

STIGER: Correct.

NELSON: Some cases may involve whether an officer should have punched the person, right?

STIGER: Correct.

NELSON: Some may involve whether they should have used a particular technique or not, a Taser, for example?

STIGER: Correct.

NELSON: Some involve the use of deadly force, correct?

STIGER: Correct.

NELSON: But they're not all these thousands of cases are not all deadly force or resulting in the death of an individual, right?

STIGER: Correct.

NELSON: And, in fact, a vast majority of these are based upon like civilian complaints, perhaps, or sergeants review of the use of force, right?

STIGER: Sergeant's review -- a sergeant's investigation, yes.

NELSON: Right.

STIGER: Not civilian complaints, but primarily a sergeant's investigation.

NELSON: So in the Los Angeles Police Department, it's similar to the Minneapolis Police Department. If an officer uses force, there certain times of force they have to support to their superior. Correct?

STIGER: Correct.

NELSON: And then the superior, the sergeant, will review and investigate that use of force, correct?

STIGER: Correct.

NELSON: And then that process from once that report is completed, you were on the panel of people that reviewed that investigation?

STIGER: On certain occasions, yes.

NELSON: So, again, I mean, in your capacity of reviewing the use of force, you would agree that Graham versus Connor is the standard?

STIGER: Correct.

NELSON: Right. It is a universal standard for all police officers in the United States, right?

STIGER: To my knowledge, yes.

NELSON: And that's because it comes from the United States Supreme Court, right? STIGER: Yes.

NELSON: From the highest law-making or highest court in the land, right?

STIGER: Correct.

NELSON: And that's the standard that the Office of Inspector General uses?

STIGER: It uses the Los Angeles Police Department's use-of-force policy.

NELSON: Which also includes the Graham versus Connor standard?

STIGER: Correct.

NELSON: Now in terms of Minneapolis, it's the same standard we use here.

STIGER: Yes, it is.

NELSON: Right? That's embodied in the Minneapolis Police Department's excessive force policy 5-303, correct?

STIGER: I don't know the exact number, but, yes, I believe so.

NELSON: Now, the Graham versus Connor factor, if I may just have a second.

(INAUDIBLE)

NELSON: You talked yesterday and today about the Graham v. Connor factors, and you've done thousands of use-of-force reviews. You are comfortable discussing Graham versus Connor?

STIGER: Yes, I am.

(CROSSTALK)

PETER CAHILL, JUDGE: Can we have a sidebar?

NELSON: Sure.

BOLDUAN: It looks like we've jumped into another quick sidebar in the courtroom in Minneapolis.

Let me go over to Chief Charles Ramsey.

Hopefully, we have a second, Chief. Just your reaction of what we have been listening to?

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Well, so far, I mean, he clearly has a great deal of expertise in this particular area. You know, I think it also points out best practices. I mean, it's not just about Minneapolis, Minnesota. There are certain standard, especially as it relates to use of force that are pretty much universal. And so, I think that's pretty much established through his testimony thus far.

BOLDUAN: And -- and we're right back in, Chief, let's jump back into it.

NELSON: -- Connor, correct?

STIGER: Correct.

NELSON: And within the Minneapolis Police Department policy -- within the Minneapolis Police Department policy, I'd ask the court to, I would like you to publish exhibit 106, item 106 up.

[11:05:11]

There is -- at Exhibit 106, there is the incorporation of Graham versus Connor.

STIGER: Yes.

NELSON: All right? Now, the authorized use-of-force in the state of Minnesota exists primarily from a state statute, correct?

STIGER: Yes.

NELSON: And then that state statute, in terms of the police department policy has to be consistent with the Graham versus Copper factors, right?

STIGER: Correct.

NELSON: And it's fair to say that there is more to the analysis of Graham versus Connor than simply the severity of the crime, the immediacy of the threat, or the active resistance, right?

STIGER: Yes.

NELSON: In fact, one of the ultimate police department policy says here is because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, its proper application requires careful attention to the facts and circumstances of each particular case, including those three factors? Correct?

STIGER: Correct.

NELSON: Not limited to those three factors?

STIGER: Correct.

NELSON: After we discussed those, the policy discusses those three factors, the policy goes on to read, that the reasonableness of a particular use of force must be judged from the perspective of the reasonable officer. Correct?

STIGER: Correct.

NELSON: On the scene, correct?

STIGER: Correct.

NELSON: Rather than with the 2020 vision of hindsight, right?

STIGER: Right.

NELSON: And the reason that becomes important is this next paragraph, which reads, the calculus of a reasonable -- of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation. Agreed?

That's what it says.

STIGER: That's what it says, yes. You're correct.

NELSON: And thus, this is the Minneapolis Police Department policy, right?

STIGER: Correct.

NELSON: And then it concludes by saying that the authorized use of force requires careful attention to the facts and circumstances of each case. Agreed?

STIGER: Correct.

NELSON: All right. So, ultimately, the analysis of the reasonable -- the objective reasonableness of any case has to be a consideration of all of these thoughts that are contained within the policy.

STIGER: If they apply, yes.

NELSON: And this is not an exclusive list of factors that apply, right?

STIGER: Correct.

NELSON: Because, ultimately, it's what's casualty a totality of the circumstances event, right?

STIGER: Yes.

NELSON: So we have to look at the entirety of everything that's going on, right?

STIGER: Yes, we have to look at the subject's actions as well as the officer's action and typically, to my analysis, I look at the actions before, during and after, what the officer knew at the time, things of that nature.

NELSON: And sometimes the use of force is instantaneous, right?

STIGER: Sometimes, but not in this case. I didn't believe so. NELSON: Understood.

But sometimes the use of force is instantaneous?

STIGER: Sometimes. Correct.

NELSON: Shooting a gun, it's a very fast action, right?

STIGER: Correct.

NELSON: I punch you in the face, it's a quicker type of a reaction?

STIGER: Correct.

NELSON: I tase you, it's a quicker reaction. It's just inherently a fast action.

STIGER: In some cases, correct.

NELSON: And, ultimately, one of the things you said yesterday was that you concluded this was an excessive use-of-force, right?

STIGER: Yes.

NELSON: That's not the standard, is it? The question is whether it is an objectively reasonable use-of-force, right?

STIGER: Correct.

NELSON: Now, when we review an authorized or whether a use-of-force is authorized, there are sort of layers to that analysis, would you agree with that?

STIGER: Yes.

NELSON: All right. And I'm going to kind of start from the out and work my way in. There is the general training that an officer has in his experience or her experience, right?

STIGER: Yes.

NELSON: There is kind of a mid-level of surrounding circumstances, right, like what do we know about the geography, what do we know about the neighborhood, what do we know about the people involved, right?

STIGER: Yes.

NELSON: And then there is the direct kind of layer, which is, what's the type of force being used? How long is it being used? What are the subject and the officer's action and reactions, right?

[11:10:04]

STIGER: Yes. Seriousness -- seriousness of crimes, things of that nature, yes.

NELSON: Yeah.

So, under the reasonable officer standard, we have to take into consideration the officer's training, right?

STIGER: Yes.

NELSON: We have to take into account his or her personal experience, right?

STIGER: Yes.

NELSON: We have to take into account tactical advantages or disadvantages, right?

STIGER: Correct.

NELSON: We have to take into account scene security?

STIGER: Yes.

NELSON: We have to take into account the safety and security of our police -- our partners, right?

STIGER: Yes.

NELSON: We have to take into account the public's safety, right?

STIGER: Yes.

NELSON: We have to take into account the location, generally speaking, is this a high crime, moderate crime or low crime area, right?

STIGER: Yes.

NELSON: We take that into account.

We have to take into account the specific location, meaning, am I in the middle of a busy intersection, where buses and cars are driving by or am I in someone's yard, backyard, right?

STIGER: Yes.

NELSON: We have to take into account the escalation possibilities, right?

STIGER: Yes.

NELSON: So you've seen and you discuss a little bit yesterday the Minneapolis Police Department, I'm sorry, we can take this down, the Minneapolis Police Department's critical decision-making modem, right?

STIGER: You openly discussed it yesterday.

NELSON: But you reviewed that?

STIGER: Yes.

NELSON: And you understand what an officer is supposed to do is kind of go through this cycle process, taking in information, right?

STIGER: Yes.

NELSON: Assessing the risk, the threat, deciding, is it lawful for me to do this? How do I react? Ultimately with the goal of keeping everybody safe, right?

STIGER: Yes. That's a pretty standard thing to continually reassess as you were using force.

NELSON: Right, reassessment is a specific tool.

STIGER: Yes.

NELSON: And that's common to police officers, right?

STIGER: Yes, sir.

NELSON: You have to take into account that sometimes incidents or interactions with a citizen are benign, at best, right? They're not risky at any sense?

STIGER: Correct.

NELSON: But that not a risky situation can very quickly become a very risky situation, agreed?

STIGER: Agreed.

NELSON: And there are certain circumstances that officers, they walk into knowing that this could be a higher risk situation, right?

STIGER: Yes, depending on the nature of the call, things of that nature.

NELSON: Right. So, for example, domestic assault calls have a high risk, right, to an officer?

STIGER: Yes, just like a robbery or --

NELSON: Just like a robbery.

STIGER: -- a shooting.

NELSON: A shooting, lots of situations that officers are expected to go into, they go into with a heightened sense of awareness, agreed?

STIGER: Correct.

NELSON: And sometimes, an officer will walk into a situation, have no sense of risk or no sense of concern, but they have to prepare for the unexpected, agreed? STIGER: I wouldn't agree with that. I believe based on my training

and experience, most officers once in their uniform, not only respond to a call, we know that there is a risk factor. We just don't know what level depending on the severity of the -- severity of the call.

NELSON: Right. So every single time an officer responds to a call, there is an inherent risk, correct?

STIGER: Correct.

NELSON: That's the nature of policing, right?

STIGER: Yes, it is.

NELSON: And an officer have -- a reasonable officer has to be prepared for that risk level to change?

STIGER: Correct. That's why we use tactics.

NELSON: Now, again, one of the things that officers have to take into consideration is their department's policies, right?

STIGER: Yes.

NELSON: And you would agree, would you not, that every single use-of- force policy that Minneapolis has, has some form of what's called a qualifier, meaning, if it's reasonable, or if it's safe, or if it's tactically proper, right?

STIGER: Yes.

NELSON: So all of the analysis has to depend upon the safety, the practicality and in some certain -- in certain circumstances, tactics, right?

STIGER: In certain circumstances, yes.

NELSON: Right.

STIGER: In most cases, the objective reasonableness of the actual force being used.

NELSON: Right. And when we look at the use of force, we don't look at the use of force in a vacuum, do we?

STIGER: No, we do not. We should not.

[11:15:01]

Some -- I've seen some agencies, that's all they focus on is the actual use-of-force. But when I do my analysis, I look at the totality of circumstances, meaning I look at the officer's tactics as well as the subject's actions during the whole entire incident.

NELSON: Right, and because it's a totality of the circumstances analysis, we need to and it's objectively reasonable based on the facts of this particular case. Correct?

STIGER: Correct.

NELSON: So we need to look at closely at all of the facts in assessing whether or not the use-of-force was reasonable, agreed?

STIGER: Agreed.

NELSON: So, let's talk about the facts. Do you understand that Officer Chauvin was the initial officer dispatched to this call?

STIGER: Yes.

NELSON: That dispatch ultimately, what's called a sector car took over the call and Officer Chauvin was no longer responding, correct?

STIGER: That's correct. He was no longer the primary unit.

NELSON: It's reasonable for a police officer to rely upon information he or she receives from dispatch, correct?

STIGER: Correct.

NELSON: And so, you understand that in this particular case, dispatch advised the officers that the suspect was still on scene, correct?

STIGER: Correct.

NELSON: That it was a priority 1 response calm, correct?

STIGER: Correct.

NELSON: That means get there quick, right, that's code 3, get there with lights and sirens, right?

STIGER: I don't know the exact code for Minneapolis PD, but I believe, I believe you.

NELSON: Okay.

And that the suspect was 6 to 6-1/2 feet tall, right?

STIGER: Correct.

NELSON: And that he was possibly under the influence.

STIGER: Correct.

NELSON: Right? So it's reasonable for an officer to rely on that information in response to a call, right?

STIGER: Yes, until they can confirm it.

NELSON: They can confirm it. But it also sets the stage, right? We're talking about the inherent risks.

STIGER: Yes.

NELSON: Right? So, it's much different how a police officer -- a reasonable police officer would respond to an intoxicated large person versus a smaller person who is just a little crappy, right?

STIGER: In some cases, yes. I've seen small people put up bigger fights than bigger people.

NELSON: So it's reasonable for a police officer to be in a heightened sense of awareness based upon the information they received from dispatch, agreed?

STIGER: Agreed.

NELSON: Now, ultimately, you understand, under the facts of this case, Officer Chauvin was dispatched a second time, correct?

STIGER: Correct.

NELSON: And that's because the dispatcher heard officer were taking someone out of a car, right?

STIGER: Yes.

NELSON: And so, let's just kind of stop there for a second. When you consider the fact that this was a forgery or a counterfeiting call and you don't expect to use force in that type of a situation, wouldn't normally expect.

STIGER: Correct.

NELSON: Now you hear dispatch send you on an emergency basis to the scene because officers are using force, right? They took somebody out of a car?

STIGER: Taking someone out of a car is not necessarily a use of force.

NELSON: The -- you would -- have you listened to the dispatch of this, the audio of the dispatch of this case?

STIGER: I believe so.

(CROSSTALK)

NELSON: And the testimony of the 911 operator was that she heard screaming and scuffling or some sort of a noise that prompted her to dispatch a second car, right?

STIGER: I didn't hear her testimony.

NELSON: Okay. But officers they do hear, they get the radio traffic, right?

STIGER: Yes.

NELSON: They do hear all of the communications amongst all of the officers, right?

STIGER: Correct.

NELSON: And it's reasonable for an officer to rely on that information, right?

STIGER: Yes.

NELSON: And if you are an officer and you hear a scuffle on the radio. You hear, we're taking one out, and you get dispatch code 3 or in an emergency situation, it's reasonable for an officer to come in with a heightened sense of alertness, an awareness?

STIGER: Absolutely.

NELSON: And you would expect that, right?

STIGER: Yes.

NELSON: You responded to these calls I'm sure thousands of times, right?

STIGER: Yes.

NELSON: So now you have an ex -- an officer, a reasonable officer, who has a heightened sense of concern about this call?

STIGER: Correct.

NELSON: So when Officer Chauvin arrived at 8:17 and 23 seconds, he knew that some degree of force was being used because of what he heard on the dispatch, presumably, correct?

[11:20:07]

STIGER: Correct.

NELSON: He knew that other officer were there, right?

STIGER: Yes.

NELSON: He knew that he was being dispatched to back up the situation, right?

STIGER: Yes.

NELSON: He knew that the individual suspect was possibly impaired, right?

STIGER: Yes.

NELSON: Based on the dispatcher. He knew he was 6 to 6 feet tall, 6 to 6-1/2 feet tall?

STIGER: Yes. NELSON: And so when Officer Chauvin arrived on scene, he had a

certain amount of information that a reasonable police officer can rely on in forming his or her next steps, right?

STIGER: Yes.

NELSON: And when he arrived, he observed Mr. Floyd and two officers, correct?

STIGER: Correct.

NELSON: At the backseat of a squad car, correct?

STIGER: Correct.

NELSON: And what you described as Mr. Floyd actively resisting their attempts to put him into the backseat of a squad car?

STIGER: Yes.

NELSON: At that point, according to the model, the use of force continuum, Officer Chauvin theoretically, based on what he saw, active resistance, he could have come up and dry stunned him or tased him. That would be within the active resistance struggling use of force continuum?

STIGER: Yes.

NELSON: He didn't do that, right?

STIGER: No, he did not.

NELSON: Because sometimes an officer has to back down in their use- of-force, right,?

STIGER: In certain situations, yes.

NELSON: A reasonable officer who comes on scene based with all of the information that he has at that particular time, right, comes into the scene, sees two other police officers struggling with an actively resisting person, right, it's reasonable for that officer to assist his fellow officers in their efforts, right?

STIGER: Correct.

NELSON: And you observed the slide or excuse me, the body camera footage of the struggle, right?

STIGER: Yes, I did.

NELSON: And you would agree that from the time Officer Chauvin gets on the scene into the time that Mr. Floyd is proned on the ground, Mr. Floyd was actively resisting efforts to go into the backseat of his squad car?

STIGER: Yes, sir. NELSON: And the officers were reasonable in their use of force in

their attempt to get him into the back of the squad car, agreed?

STIGER: Agreed.

NELSON: Now, in this context, Mr. Floyd was saying certain things as he was being, attempted to be put into the back of the squad car, right?

STIGER: Yes.

NELSON: Do you recall him at that point saying things like, I'm not a bad guy?

STIGER: Yes.

NELSON: Do you remember him saying, I have COVID?

STIGER: Yes.

NELSON: Or I just got over the COVID?

STIGER: I just got COVID, yes.

NELSON: Do you remember him saying at that point, I can't breathe?

STIGER: Yes.

NELSON: He was saying to the police officers at that point, I can't breathe?

STIGER: Yes.

NELSON: As he was actively resisting here efforts to put him into the squad car?

STIGER: Yes.

NELSON: Now again, over the course of your career and in the course of your training experience, in all of the context you have done, have you ever had somebody say to you, to attempt to bargain with you to avoid being arrest -- arrested?

STIGER: Yes.

NELSON: Sort of like, hey, man, I'll do what you want as long as I don't have to go to jail, right?

STIGER: Yes.

NELSON: Or somebody may be fighting and they may agree to stop fighting with you through a bargaining process, right, saying if I get to sit on the curb, I will stop fighting.

STIGER: Yes, in certain instances, yes.

NELSON: Right. Have you ever had a person feign a physical ailment as you attempted to arrest them?

STIGER: Yes.

NELSON: Sometimes people will say, I'm having a heart attack, right? I think I'm having a heart attack, don't take me to jail, take me to the hospital?

STIGER: Yes.

NELSON: And it's fair to say that the vast majority, I shouldn't say the vast majority, is it fair to say that one of the things that an officer has to do in the assessment of the reasonableness of his use of force is take into consideration what the suspect is saying and how he's acting?

STIGER: Yes, 100 percent.

NELSON: All right. So if somebody is saying, I can't breathe, and they're passing out and they're not resisting, that's one form of an analysis, right?

STIGER: Yes.

NELSON: Because the actions of the suspect are consistent with the verbal utterances he is making, right?

[11:25:02]

STIGER: Yes.

NELSON: Other times and in this particular case, when Mr. Floyd was initially saying that he couldn't breathe, he was actively resisting arrest.

STIGER: Initially when he was in the backseat of the vehicle, yes.

NELSON: Right. And, in fact, he was using his legs to push back and to use his body weight to -- against the officers, right?

STIGER: Yes.

NELSON: And at one point, three Minneapolis police officers were attempting to get him in the backseat of the squad car from the passenger's side of the car, correct?

STIGER: Correct.

NELSON: They were not able to do so?

STIGER: No.

NELSON: And in your report, you described it as when the futility of their efforts became clear, I think was the term you used.

STIGER: I can't recall using that word, but maybe I did.

NELSON: All right. Would you disagree, would it refresh your recollection to review your report?

STIGER: Yes, absolutely.

NELSON: May I approach the witness, your honor?

JUDGE CAHILL: You may.

(INAUDIBLE)

STIGER: Yes.

NELSON: Does that refresh your recollection, sir?

STIGER: Yes, it does.

NELSON: And what you wrote was, when the futility of the three officers continuing their efforts forcibly to seat Floyd in the squad's backseat became clear, right?

STIGER: Yes.

NELSON: They put him on the ground in a prone position, right?

STIGER: Yes.

NELSON: So again, just in this context of, assessing what someone is saying, the subject, an arrestee is saying in comparison to their actions, you are also making assessments of their physical characteristic, right? An officer should be observing what physical characteristics a person is displaying, agreed?

STIGER: Yes.

NELSON: And you are analyzing that against what a person says, right?

STIGER: Correct.

NELSON: Or how they are acting, I should say.

So somebody, if you ask, are you consuming -- what did you take? What drugs are you on? And they deny that they're on drugs but there is physical evidence to suggest to the contrary, it's a consideration an officer has to make, right?

STIGER: Yes.

NELSON: And in this case, officers asked Mr. Floyd repeatedly, what kind of drugs he was using, right?

STIGER: Yes.

NELSON: You had an opportunity to review the body-worn cameras and you've seen sort of a white substance forming around Mr. Floyd's mouth?

STIGER: Yes. NELSON: It will be consistent in your experience with someone who is

possibly using controlled substances?

STIGER: Correct.

NELSON: Is it common in your experience for people who have been using drugs or alcohol to deny that they have used drugs or alcohol?

STIGER: Yes, in some instances, yes.

NELSON: All right. It's kind of the proverbial drunk driver, right? I haven't had anything, officer, right?

STIGER: Yes.

NELSON: I've had two beers, right?

People have a tendency to minimize what they have consumed, right?

STIGER: Yes.

NELSON: Now, you have testified, as I understand your testimony, that once that the officers putting Mr. Floyd into the prone position was initially a reasonable use of force, right?

STIGER: Yes.

NELSON: And you are familiar with the squirm technique?

STIGER: Yes.

NELSON: Where multiple officers are on top of a resisting suspect trying to control the extremities, right?

STIGER: Yes, typically that's done prior to handcuffing.

NELSON: Right. But that's -- once you're putting someone into -- once someone is handcuffed, right, and they're in the ground, a person who is in handcuffs can continue to be a threat, agreed?

STIGER: Yes.

NELSON: They can kick you?

STIGER: Correct.

NELSON: They can bite you?

STIGER: Correct.

NELSON: They can thrash and get free and start running, right?

STIGER: In certain instances, yes.

NELSON: Right. And in certain instances, they can then get your weapon, right? STIGER: Yes.

NELSON: They could get your gun from you even though they are handcuffed.

STIGER: Yes.

NELSON: So the notion that a handcuffed suspect no longer presents a threat to an officer is not correct?

STIGER: It depends.