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Inside Politics

Defense Cross-Examines Police Use-Of-Force Instructor. Aired 12:30-1p ET

Aired April 06, 2021 - 12:30   ET

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

[12:30:00]

ERIC NELSON, DEFENSE ATTORNEY: There is no strict application of every technique that an officer is trained is there?

LT. JOHNNY MERCIL, MINNEAPOLIS POLICE USE-OF-FORCE INSTRUCTOR: No.

NELSON: Officers are trained to be fluid, correct?

MERCIL: Yes, Sir.

NELSON: And sometimes officers have to do things that are unattractive to other people?

MERCIL: Correct.

NELSON: In terms of the use of force.

MERCIL: Yes, Sir.

NELSON: And an officer, you would agree that being a police officer is a relatively dangerous job?

MERCIL: Yes, Sir.

NELSON: You yourself in the course of your career have had to use force against suspects?

MERCIL: Yes, Sir.

NELSON: You've arrested many people, I presume?

MERCIL: Yes, Sir.

NELSON: And would you agree that sometimes people aren't particularly happy about being arrested?

MERCIL: Very rarely, Sir.

NELSON: And sometimes they fight with you?

MERCIL: Yes, Sir.

NELSON: And sometimes they argue with you?

MERCIL: Yes, Sir.

NELSON: Sometimes they make excuses?

MERCIL: Yes, Sir.

NELSON: And ultimately, one of the things that a police officer has to do is try to determine is this person pretending or trying to give me some excuse not to get arrested? Or is this person experiencing some other crisis, right?

MERCIL: Yes.

NELSON: Right. And ultimately, in terms of an arrest, that's one of the things that an officer has to ascertain, right?

MERCIL: Yes, Sir.

NELSON: And, again, when you've arrested people, have you had people plead with you not to arrest them?

MERCIL: Yes, Sir.

NELSON: Have you had people say they were having a medical emergency?

MERCIL: Yes, Sir.

NELSON: Would you -- have you had people say I can't breathe?

MERCIL: Yes, Sir.

NELSON: And do you -- were there circumstances during the course of your career as a patrol officer where you didn't believe that that person was having a medical emergency?

MERCIL: Yes, Sir.

NELSON: And that's all part of the analysis in terms of the use of force, right?

MERCIL: It plays a part. Yes, Sir.

NELSON: And so if someone comes to you and says, your -- if you tell someone I'm under arrest, one way that a person can resist arrest is through the use of their words. Agreed?

MERCIL: Yes, Sir.

NELSON: And that's a form of what you would call passive resistance?

MERCIL: Depending on the types of words are used.

NELSON: Right. So words could be both passive or active resistance, right?

MERCIL: I would say, yes.

NELSON: Right. So the difference between I'm having a heart attack versus screw you, you know, you're not going to take me?

MERCIL: No, Sir, yes.

NELSON: So that's what you mean by the difference in the words, right?

MERCIL: That's correct.

NELSON: Or if a suspect is threatening you when you're arresting?

MERCIL: That's correct.

NELSON: All right. Now, the whole concept of this ground defense program, as you testified, was to really use bodyweight and control to gain compliance of a subject, right?

MERCIL: Yes, Sir.

NELSON: And would you agree that in any use of force situation, the circumstances can change from minute to minute, second to second?

MERCIL: Yes, Sir.

NELSON: So somebody who is initially compliant can suddenly become noncompliant?

MERCIL: That's correct.

NELSON: Somebody who's peacefully going into custody could suddenly become violent towards an officer?

MERCIL: That's correct.

NELSON: Somebody who is violent in one second becomes compliant could become violent again, right?

MERCIL: Yes, Sir.

NELSON: You've experienced that yourself, correct?

MERCIL: I have.

NELSON: And an officer in terms of the use of force, you don't train officers, specifically to only focus on the individual that they're taking into custody, do you?

MERCIL: No.

NELSON: Do you train them on officers to consider and to take into consideration other factors?

MERCIL: Yes, Sir.

NELSON: Such as other -- their partner safety? MERCIL: That's correct.

NELSON: Such as a crowd?

MERCIL: Correct.

NELSON: Such as the difference between a crowd, right?

MERCIL: Yes, Sir.

NELSON: Are they a happy crowd, or are they an angry crowd?

MERCIL: Yes, Sir.

NELSON: In terms of we're talked -- we talked about the proportionality of the use of force and kind of sliding force up and down that model, do you recall that?

MERCIL: Yes, Sir.

NELSON: When an officer uses force do they take into -- do you train officers to take into consideration what happened immediately prior to the use of a particular use of force?

MERCIL: Could you rephrase that, Sir, I'm sorry.

NELSON: Sure. In terms of the continuation of the use of force, do you train officers to take into consideration what has happened with that suspect in the immediate preceding events?

[12:35:06]

MERCIL: Yes, Sir.

NELSON: So for example, if you were just fighting with a suspect, and that person becomes compliant, does that become a consideration in terms of a continued use of force?

MERCIL: Yes, Sir.

NELSON: If someone has a sizable or a large size difference, do you train officers to take that into consideration in terms of their use of force?

MERCIL: Yes, Sir.

NELSON: So if somebody, if some person had fought with more than one officer at a time, do you train officers to take that into consideration as far as the continuing use of force?

MERCIL: Yes, Sir.

NELSON: So one person against three people is a factor that officers would consider for the continued use of force?

MERCIL: Yes, Sir. NELSON: Do you train officers relevant to the use of force for people who are under the influence of controlled substances?

MERCIL: To consideration, yes.

NELSON: Right. And in your experience, have you ever had to use force against somebody who's under the influence of a controlled substance?

MERCIL: Yes, Sir.

NELSON: Do you train officers that certain controlled substances can cause a person to exhibit more strength than they would have otherwise?

MERCIL: Yes, Sir.

NELSON: So the -- going back to the ground defense program, the ground control, excuse me, the ground defense program really uses a lot of joint manipulations correct?

MERCIL: Yes, Sir.

NELSON: Pressure points?

MERCIL: Not so much pressure points with ground control.

MERCIL: OK. Bodyweight pins?

MERCIL: Yes, Sir.

NELSON: So, using your -- the officers bodyweight to physically control an individual, correct?

MERCIL: Yes, Sir.

NELSON: Now, you were previously interviewed by the FBI in connection with this case?

MERCIL: Yes, Sir.

NELSON: And you are aware that your statement was recorded, transcribed, and have you had an -- were you aware of that?

MERCIL: I was aware of that.

NELSON: Have you had an opportunity to review your statement to the FBI?

MERCIL: Nope.

NELSON: OK. So I'm going to ask you just some general questions. And if I need to refresh your recollection, I'll do so. OK?

MERCIL: OK. Thank you.

NELSON: So, in terms of Minneapolis Police Department policy, there's a difference between a chokehold and a neck restraint, correct?

MERCIL: That is correct.

NELSON: A chokehold is considered a lethal or deadly use of force, correct?

MERCIL: Correct.

NELSON: And a chokehold is defined by Minneapolis policy as specifically blocking the trachea or the airway of the suspect from the front side, correct?

MERCIL: Correct.

NELSON: So essentially, what you would kind of think of as almost strangulation, putting your hands around someone's neck and squeezing the front of their neck, correct?

MERCIL: Yes, Sir.

NELSON: In this particular case, have you had an opportunity to review the body worn cameras, the sort of the bystander surveillance, or the bystander cameras?

MERCIL: I've seen both, Sir.

NELSON: OK. At any point, did you see Officer Chauvin use a choke hold in this case?

MERCIL: No, Sir.

NELSON: Now, in terms of neck restraints, you said that you testified that you have been involved in the martial arts since college?

MERCIL: Yes, Sir.

NELSON: And I believe if I'm not mistaken, that you also train MMA fighting?

MERCIL: No, Sir, I do not.

NELSON: Have you ever?

MERCIL: No, Sir.

NELSON: OK. But in the course of your training both in martial arts, as well as like Brazilian jujitsu, and you're training to become a use of force instructor, you have experienced neck restraints, correct?

MERCIL: Yes, Sir.

NELSON: And you have taught individual officers, I believe you say hundreds of times and hundreds of officers, on how to use a neck restraint, correct?

MERCIL: Yes, Sir. NELSON: And a neck restraint, as you have described it is requires both sides of the neck to be compressed in order to render a person unconscious, correct?

MERCIL: That is what we teach, yes.

NELSON: How much pressure has to be applied to both sides of the neck in order to render a person unconscious based on your training?

MERCIL: It depends.

NELSON: OK. On what factors?

MERCIL: Size of the person, your skill, whether they're on narcotics or not, whether they're having an adrenaline rush, heart rate, general physical health, there's just a lot of factors involved.

NELSON: OK. Typically do you have to apply a lot of pressure to let's say, a healthy individual for a long period of time in order to render someone unconscious?

[12:40:03]

MERCIL: I would say, no.

NELSON: Right. Do you recall, what is the percentage of pressure that you would generally expect to have to apply?

MERCIL: I don't know if I can.

UNIDENTIFIED MALE: Objection, Your Honor.

UNIDENTIFIED MALE: Overruled.

MERCIL: Question again, Sir?

NELSON: How -- what amount of pressure do you have to apply typically in order to render someone unconscious?

MERCIL: I don't know if I can answer that. It's very individual.

NELSON: OK, So you said factors such as controlled substance use play into it, correct?

MERCIL: Yes, Sir.

NELSON: And does -- if a suspect is uncontrolled substance -- on a controlled substance, does that speed up the process of rendering someone unconscious or slow it down?

MERCIL: I think my experiences are that it speeds it up.

NELSON: And if someone has, you said another factor is if someone has an adrenaline surge, right?

MERCIL: Yes, Sir. NELSON: And if someone has an adrenaline surge coursing through their body, does a use of a neck restraint speed up or slow, or does that adrenaline speed up or slow down the unconsciousness?

UNIDENTIFIED MALE: Objection, Your Honor. This is beyond the base of knowledge and the scope of direction (ph).

UNIDENTIFIED MALE: You need more foundation.

NELSON: Your Honor, I can refresh his recollection with his statement if that recalls.

UNIDENTIFIED MALE: Well, Your Honor, can we have a sidebar?

UNIDENTIFIED MALE: No proceed.

NELSON: Would it refresh your recollection to review your statement relevant to adrenaline and the impact of how it speeds up or slows down a neck restraint?

MERCIL: I don't believe I need to see that. I know the answer.

NELSON: OK. What's the answer?

MERCIL: The answer is, the higher your blood rate or your respiration and heart rate is generally the faster a neck restraint affects somebody.

NELSON: And how long based on your training and experiences it typically take to render a person unconscious using a neck restraint?

MERCIL: My experiences under 10 seconds.

NELSON: Under 10 seconds?

MERCIL: Yes, Sir.

NELSON: Now, when a neck restraint is applied, does the Minneapolis Police Department specifically trained people to be cautious when reviving or attempting to revive a suspect?

MERCIL: I'm not sure I understand the question, Sir.

NELSON: In your experience after a person has been rendered unconscious using a neck restraint, is it possible for them to continue to fight after they come back to consciousness?

MERCIL: It is possible, yes.

NELSON: Have you experienced that personally?

MERCIL: I have not experienced somebody fighting after a neck restraint.

NELSON: OK. But you -- but you're aware of the Minneapolis Police Department trains people that that is a possibility? MERCIL: Yes, Sir.

NELSON: And in fact, sometimes they can be just as aggressive or even more aggressive after coming to consciousness?

MERCIL: That is possible, yes.

NELSON: Now in terms of the use of a neck restraint, specifically, there are circumstances are there not where an officer can continue to hold a person in a neck restrict after rendering someone unconscious?

MERCIL: Hold somebody? Yes.

NELSON: And for a period of time, correct?

MERCIL: Yes, Sir. You can have your arm around their neck for a period of time, yes.

NELSON: And there will be circumstances that would affect an officer's decision on whether to hold that person in that position for some period of time, correct?

MERCIL: Yes, Sir.

NELSON: That would include maybe waiting for other officers to arrive?

MERCIL: Yes, Sir.

NELSON: Waiting for EMS to arrive?

MERCIL: I don't know but that wouldn't go that far, no.

NELSON: OK. You also train in the training department officers on the -- what are called the human factors of force, correct?

MERCIL: Yes, Sir.

NELSON: And generally, can you describe what the human factors of force are?

MERCIL: Yes, sir. It involves, you know, either startle response to the officer or getting scared or having an adrenaline rush or adrenaline dump in their body. And it affects your cognitive, physical abilities in when you encounter stress like that.

NELSON: Right. So it's fair to say that when an officer is engaged in a use of force sensitive, his or him or herself, they may experience a rush of adrenaline as well, right?

MERCIL: Yes, Sir.

NELSON: You've experienced that yourself?

MERCIL: Yes, Sir.

NELSON: And after a situation has calmed down to some degree, the officer experiences and adrenaline rush or dump, excuse me?

MERCIL: The adrenaline can continue to course through the body, yes.

NELSON: And at some point, it leads?

[12:45:01]

MERCIL: Yes, Sir.

NELSON: OK. And that adrenaline officers are trained on this, correct?

MERCIL: Yes, Sir.

NELSON: It's a part of the standard training for both recruit officers and the academy, as well as veteran officers in their in service?

MERCIL: That is correct.

NELSON: How frequently is the human factors of force taught to police officers?

MERCIL: I believe we teach it about once a year we discussed the human factors, of course.

NELSON: But also train officers to be very much aware of their surroundings at all time, correct?

MERCIL: Yes, Sir.

NELSON: And you were asked a series of questions about continuing to hold someone in prone position when you use the term, you could hold them there until the scene is called code four, do you recall that?

MERCIL: Yes, Sir.

NELSON: And so it's fair to say that the Minneapolis Police Department would train officers under certain circumstances to hold a person in a prone position until the scene is safe, correct?

MERCIL: There are circumstances where that is appropriate, yes.

NELSON: And some of those circumstances would -- could be the reaction of bystanders, correct?

MERCIL: That may be a factor, yes.

NELSON: It could include where you are physically located in terms of a geographical area, correct?

MERCIL: Yes.

NELSON: Right. Where you are in terms of other hazards that may present themselves to an officer or to the suspect, right?

MERCIL: Yes, Sir.

NELSON: Being in a busy street in the middle of a busy street, versus being in a park or a yard or something?

MERCIL: Yes, Sir.

NELSON: Now, you also describe the Minneapolis Police Department's policy in terms of rendering medical aid, as best you can, right?

MERCIL: Yes.

NELSON: You recall an officer is required to do that, correct?

MERCIL: Yes, Sir.

NELSON: But there are certain circumstances, correct me if I'm wrong, where an officer has to consider whether it's safe for the officer to do so, correct?

MERCIL: Yes, Sir.

NELSON: And in fact, the training that Minneapolis police officers receive requires it to be safe for an officer to render medical aid, agreed?

MERCIL: Generally, yes.

NELSON: And one of the considerations an officer has to make in determining whether to render medical aid is whether or not the suspect is uncuffed, or is cuffed or uncuffed, right?

MERCIL: That may be a factor, yes.

NELSON: Right. There are circumstances where you've been fighting with a person and they are hand -- you've gotten them handcuffed. And you have to decide is it worth the risk to take these handcuffs off to give this person medical aid?

MERCIL: Yes, Sir.

NELSON: Because once you unhandcuff a suspect, they could become resistant again, correct?

MERCIL: That is correct.

NELSON: You have to decide is that a risk you're willing to take?

MERCIL: Yes, Sir.

NELSON: You also described the recovery position, correct?

MERCIL: Yes, Sir.

NELSON: And the recovery position could be rolling someone on their side, sitting them up or standing them up, right?

MERCIL: Yes, Sir.

NELSON: And, again, there would be circumstances, you can envision circumstances where you would not put a person into the recovery position, correct?

MERCIL: Yes, Sir.

NELSON: Right. And, again, all of those factors that we've kind of talked about in terms of partner safety, personal safety, safety of the subject, safety of the crowd, all of those things are going through that critical decision making model process, right?

MERCIL: Yes, Sir.

NELSON: Now, in terms of the use of bodyweight to hold the suspect, right, you have -- you train officers to use their knee across the back, shoulder -- or the shoulder to the base of a neck of a subject, correct?

MERCIL: Yes.

NELSON: That is something that is specifically trained by the Minneapolis Police Department, whether it'd be for handcuffing purposes or simply prone control of a subject?

MERCIL: Yes, Sir.

NELSON: So if a person is being handcuffed, officers are specifically trained to put a knee across the shoulder blade of the suspect to the trapezius, is that what it's called?

[12:50:01]

MERCIL: Yes, trapezoid. Yes.

NELSON: Something that --

MERCIL: Yes, sure. I'm not a medical addressee.

NELSON: Yes. And that is routinely trained by the Minneapolis Police Department, both in terms of the academy as well as the -- as well as in service?

MERCIL: Situationally, yes.

NELSON: And simply because a person is handcuffed, there would be other circumstances where you would use that bodyweight, that prone control technique to maintain control of a subject, correct?

MERCIL: Yes.

NELSON: And in terms of -- we could publish Exhibit 17, Sir, if we could publish Exhibit 17. You were asked a series of questions about whether this is appears to be a trained Minneapolis neck restraint.

MERCIL: Yes, I was asked that.

NELSON: And you said, no, correct?

MERCIL: Correct. NELSON: But it is -- you hedged a little bit and said it may be some other training?

MERCIL: Perhaps.

NELSON: What would that training be?

MERCIL: Using bodyweight to control. However, I will add that we don't -- we tell officers to stay away from the neck when possible and if you're going to use bodyweight to pin to put it on their shoulder and be mindful of position.

NELSON: All right. If we can take this down and just to the witness would like to display a couple of -- this is page 41 of Exhibit 126. Let's show this to the witness. Can you see that, Sir?

MERCIL: Not yet.

NELSON: Sorry. It's -- this is already in evidence. But in this bottom corner here, do you see a photograph of an individual demonstrating how to handcuff a person?

MERCIL: Yes, Sir.

NELSON: And that knee is across the neck of that individual, correct?

MERCIL: The knee is on his far shoulder.

NELSON: Across the base of the neck?

MERCIL: The shin would be from his toes up to the knee. Yes, a shin is across the back of the neck.

NELSON: All right. So that's when we're talking about prone handcuffing. This is a specific kind of photograph that demonstrates the placement of a knee as it applies to prone handcuffing, correct?

MERCIL: Correct.

NELSON: And ultimately, if that person were to be handcuffed and circumstances dictated, the officer would be permitted to continue to hold his knee in that same position, agreed?

MERCIL: I would say, yes. However, we've cautioned officers that be mindful the neck area and to look for the shoulder for placement.

NELSON: Perfect. We can take this down. Can we take that down, Your Honor? I'm going to show you what has been introduced as Exhibit 56 already. Can you see that, Sir?

MERCIL: What was happened? Yes, sir.

NELSON: It appears to be the --

(INAUDIBLE)

MERCIL: Sure. Yes, Sir.

NELSON: It appears to be the paramedic checking the carotid pulse of Mr. Floyd?

MERCIL: Yes, Sir.

NELSON: In your experience, this is already admitted as Exhibit 56. In your experience, would you be able to touch the carotid artery if the knee was placed on the carotid artery?

MERCIL: No, Sir.

[12:55:04]

NELSON: Sir, I'm showing you what's been marked for identification purposes as Exhibit 1045, 1045. Can you just generally take a look at that?

MERCIL: Yes, Sir.

NELSON: Now, in terms of do you recognize that this appears to be a still photograph taken from the body worn camera of one of the involved officers?

MERCIL: As it appears to be, yes.

NELSON: Right. There is a timestamp on it that indicates May 25th, 2020 at 20:23:32?

MERCIL: Yes, Sir.

NELSON: OK. And can you see two officers in this area here holding Mr. Floyd?

MERCIL: Yes, Sir.

NELSON: And if we can clear this. Here, does that appear to be the placement of one officer's knee and leg?

MERCIL: Yes, Sir.

NELSON: Does that appear to be across the shoulder blade to the base of the neck?

MERCIL: The shin appears to be across the shoulder blade. I don't know if I can tell you where the knee is.

NELSON: So we'll just -- I would offer 1045.

(INAUDIBLE)

NELSON: Officer Keung.

UNIDENTIFIED MALE: No objection, Your Honor.

UNIDENTIFIED MALE: All right, 1045 is received. NELSON: Permission to publish. Can we clear that? OK. So what we're seeing here again, this is at 8:23 and 32 seconds, correct?

MERCIL: Yes, Sir.

NELSON: And obviously this is taken from one of the body cameras. And here you can see down in that area, the leg placement of the officer, correct?

MERCIL: Yes, Sir.

NELSON: And based on your observation of this photograph, it appears that the shin is coming from the top of the shoulder across the shoulder blade, correct?

MERCIL: Yes, Sir.

NELSON: And it would be -- appears to be at an angle pointed in towards the squad car, correct?

MERCIL: Yes, Sir.

NELSON: All right, if we can take this down, Your Honor. I'm sorry, I'm missing the -- I think I accidentally closed, hang on one second. Sir, I'm showing you what's been marked for identification purposes, as 1046. Does that appear to be a similar angle?

MERCIL: Yes, Sir.

NELSON: And I apologize. It was actually Officer Lane's body worn camera.

UNIDENTIFIED MALE: 1045.

NELSON: 1045 and 1046. Again, can you see what appears to be the placement of the leg of one of the officers at the shoulder blade of Mr. Floyd?

MERCIL: It appears so.

NELSON: Right. You can see in this area here what appears to be the back or the calf area coming across the shoulder blade, correct?

MERCIL: Yes, Sir.

NELSON: Again, the timestamp is 10:26 and 40 seconds.

MERCIL: Yes, Sir.

NELSON: All right. And does that need placement appear to be similar to how a Minneapolis or excuse me similar to the placement in the previous exhibit?

MERCIL: The last exhibit, Sir?

NELSON: Yes.

MERCIL: Yes.

NELSON: And that was roughly a couple of minutes after right?

MERCIL: Yes, Sir.

NELSON: OK. I would offer Exhibit 1046.

UNIDENTIFIED MALE: Just a clarification, did you say 1026 or 46, it happen to be 8.

NELSON: 8:26 and 40 seconds, 20:26:40.

UNIDENTIFIED MALE: No objection, Your Honor.

UNIDENTIFIED MALE: 1046 is received.

NELSON: Permission to publish. So again, it's a little hard to see in this particular photograph, but if we look in this general area here, correct, you attend -- you can see the placement of the knee, correct?

MERCIL: I can see the general area, the placement of knee, yes.

NELSON: And again here we have what appears to be the shin coming over the top of Mr. Floyd's shoulder blade?

MERCIL: That's what it appears, Sir.

[13:00:00]

NELSON: And that would be angled in towards the squad car, correct?

MERCIL: Correct.

NELSON: Can you take that down, Your Honor.