March 23, 2021 • 31 mins
Seth Stoughton, whom listeners heard in the podcast, was a police officer before becoming a lawyer. Today, he teaches at the University of South Carolina School of Law, and is an expert in the evolution of policing tactics throughout American history. In this extended interview, Stoughton talks about lessons today's officers can learn from a case like Jim Duncan's, and the vital role of trust in the police-community relationship.
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Episode Transcript
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Speaker 1 (00:01):
Welcome back to Long Shot, a production of McClatchy Studios
and I Heart Radio. I'm executive producer Davin Coburn. This
is a bonus feature for a return man, taking you
behind the scenes of a reporting process that lasted more
than three years. In researching Jim Duncan's death, lead reporter
Brett McCormick and the rest of our production team wanted
(00:22):
to better understand the actions taken or not by Lancaster
authorities following the shooting, and to learn more about how
police in that era approached their jobs in general. We're
continuing our coverage to night here on w c c
O m CBSN. Minnesota protesters have set fire to Minneapolis's
third police precinct. Policing has evolved over time and its
tactics and its priorities, and as we've all seen during
(00:46):
recent nationwide protests, the role that officers play in their
communities is the subject of much debate. The third precincts
where the officers involved in the George, Florida arrest were headquartered.
My initial reaction was, if we change the date, we
could be having a conversation about the Jim Douggins shooting
from a year ago. Seth Stowton, who you heard in
(01:08):
the show, has a unique perspective on that happened. He
was a police officer himself before becoming a lawyer. I
got sucked right back into studying from an academic and
legal perspective all of the stuff that I had previously
done as an officer, and he now teaches at the
University of South Carolina School of Law. Officers get involved
(01:28):
in a wide variety of very different situations, and good
policing is context specific. Student's expertise form the basis for
a ted X talk he gave there in Columbia. On
another level, though, we could identify a set of principles
that we could use to evaluate policing in almost any context.
Principles that shape the police function itself, what officers do
(01:52):
and how they do it, the way that officers view
their job, and the way that they relate to community members.
Return Man, Sir Rachel Wise and I sat down with
Stouton in his office to learn more about the history
of policing, lessons today's officers can take from Jim Duncan's case,
and what Stowton says is the best way forward. For
(02:13):
law enforcement in general through an approach known as guardian policing.
This conversation has been edited for length and clarity. All Right,
Jue Boy in My life in a nutshell Um. I
grew up in South Florida. I moved to North Florida
to go to college, to go to Florida the now
(02:34):
the Florida State University, and it was working as a
martial arts instructor at the time, and one of the
students at the martial arts studio where I worked was
the public information officer for the local police department. He
encouraged me to do ride along with him, which I
did to start volunteering in victim services at the police
(02:56):
department and eventually to apply as a reserve officer. That
was there five years. I ultimately left the city police
Department for a job as a state investigator. I was
there for more than two and a half years, and
in an effort to continue to expand my career horizons,
essentially went to law school at the University of Virginia.
(03:17):
I clerked for a judge for a year. I was
lucky enough to get an academic fellowship at Harvard Law
School for two years and then came here to the
University of South Carolina School of Law, where I've been well,
this is my sixth year here. What was your initial
gut reaction when you heard the basic overview of the
(03:37):
facts here. There are aspects of it that are obviously
different because it happened so long ago, But the issues
that it raises are exactly the same as a lot
of the issues that we see, and a lot of
the concerns that are brought to a head by the
Walter Scott shooting in North Charleston, or the Michael Brown
(03:59):
shooting in for Sit or the timure Rice shooting in
Cleveland and so on. There are questions about transparency and accountability.
There are questions about whether there was a sufficient investigation,
And the reason that that's a little depressing is because
the conversations that we're having now about policing aren't new.
They've actually been fairly steady, going back at least as
(04:22):
far as the eighteen thirties and forties. As American policing
really started the modern era of policing in this country
kicked off, there have been concerns about police abuses and
overreach and unfairly targeting certain population groups. About unaccountable extra
judicial killings and the like. So the shooting in the
(04:44):
individual incident may seem like an aberration, but one it's
not clear that as a factual matter, it is or
was that unusual, and too certainly with regard to the
concerns that it raises, those are not at all unusual.
And the timeline you laid out back to the eighteen
thirties and forties, very different place in American history, very
(05:06):
different place in South Carolina history, but apparently not a
very different place in these questions about police interactions with
communities of color, and I think it's inevitable. I think
we will always have those conversations. I don't think there's
a way to alleviate everyone's concerns about the role that
the police play. And it's because the police exist at
(05:27):
the very point of tension between society's need for order,
to be protected from people who do bad things, to
apprehend people who do bad things. Keeping in mind that
society's need for order requires us to allow the government
to infringe on our freedoms in different ways, to search
(05:47):
our cars, to use force. On the other hand, we
also demand in a democracy to be protected from government overreach.
How much freedom are we willing to give up to
get both my individual interest in freedom and also society's
interest in order. That's not a question that has a
(06:10):
stable answer. At any given point of time, in any
given community, they're going to be multiple perspectives about how
to balance those priorities. So to a certain extent, it's
very natural that we've always had these conversations. They're inevitable,
especially in this place. And I think about the Confederate
flag in the conversation that happened about that in this
(06:32):
concept of the government should not be overstepping its bounty.
And I can give you a historical example, right, um,
back a long time ago before and at the time
that American police agencies were really kicking off in cities
like Philadelphia, New York, in Boston, right, the big cities
were the first to adopt what we now would consider
(06:53):
a police force. South Carolina and a number of the
other states had slave acts that either allowed or required
the government to put together groups of usually white land
and slave owning men to round up fugitive slaves and
(07:15):
to effectively prevent slave uprisings by intimidating the black population.
Number of plantation owners didn't like those laws, not because
they wanted to look out for slaves rights. It's because
they didn't want the government interfering in what they viewed
as a plantation and slave owners prerogative of disciplining their
(07:36):
own slaves. They didn't want the government to get involved
in that. That was something for me as a man
to deal with and not something that the government should intervene. So,
even when we're talking about that really disturbing history that
I think it's important for us to acknowledge as one
of the precursors to modern policing, we still see this
(07:58):
resistance or this tension between how much do we want
to allow the government to infringe and how much do
we want to keep the government out. In the sixties
and seventies, when Duncan would have been growing up, and
then when he died, can you offer sort of a
general description of police procedures and the sort of tactical
(08:20):
and training revolution of that era. So there are a
couple of things to keep in mind about that era.
When policing was first introduced in this country, it was
introduced as a very localized endeavor, which of course it
is today. We don't have one police agency. In the
state of South Carolina, we have more than two hundred
police agencies. When policing originated in the larger cities and
(08:45):
spread to the midsize cities in starting in the eighteen
forties and getting into the eighteen fifties and sixties, the
officers job was in large part to make sure that
their local elected official state and power. Because someone knew
got voted in, they would fire all the police officers,
and then through a political patronage system, they would hire
(09:07):
an all new group of police officers, many of whom
would pay the political patron for the privilege of getting
hired as a police officer. Starting in the very late
eighteen hundreds and into the early nineteen hundreds, there was
a police reform or police professionalism movement. The reform era
sought to shift policing from a politically involved constituent services
(09:32):
type endeavor to being primarily about law enforcement and crime fighting.
Officers were crime fighters first and foremost. There are all
kinds of reasons why that was actually wrong. Crime started
going up and police agencies couldn't handle it. So the
image that they had been selling to the public, we
are crime fighters, let us do our thing, well, if
(09:54):
you're crime fighters, you're doing an awful job of it.
So that the perspectives started to shift in the sixties
and seventies, in part because of public pressure during the
Civil Rights movement. So that started what we now refer
to as the tactical revolution in policing, making sure that
there is now a book so that officers can go
(10:17):
by the book. But that was a slow process. It
didn't penetrate fully. Like a lot of things in policing.
It started at the largest agencies and kind of trickled
down to smaller agencies, which ultimately gets us to Jim
Duncan Lancaster event and these questions of trust faith. In
(10:39):
the aftermath of a critical incident like a shooting, there
is always going to be uncertainty. When Officer Wilson shot
and killed Michael Brown, there were different pieces of information
flying all over the place, and two narratives came out
of that, and one of those narratives was that Michael
(10:59):
Brown had violently attacked Officer Wilson and then was returning aggressively,
approaching a second time, purportedly to violently attack him again
at the time he was shot and killed. The second
narrative is that Officer Wilson shot Michael Brown while Michael
Brown's hands were up and he was surrendering. After that shooting,
(11:23):
I would hazard a guess that anyone who wasn't an
eyewitness did not have facts to figure out which narrative
was correct, which narrative they should believe. So one of
the big questions for me is not just what happened
in that shooting. One of the big questions is why
did so many people in Ferguson and the surrounding area
(11:44):
and across the country believe the second narrative? Why did
so many people think, Yeah, I could totally see that
an officer would shoot and kill an unarmed black man
whose hands were raised in surrender. The answer to that
question and his lack of trust. People in Ferguson, people
in the St. Louis area, and many people across the
(12:05):
country saw the shooting of an unarmed black man while
surrendering as consistent with their perspective of policing. So when
I see the Jim Duncan shooting story, it raises that
same question of trust, and it raises a question of power.
Who in that story trusted the police and who had
(12:29):
the power to express that trust or distrust. And I
don't just mean express it like saying it. I mean
express it through their actions. In Ferguson, you had a
lot of people who distrusted the police and were empowered
to show that distrust by marching, by protesting, by holding visuals.
I don't think you've had quite that same dynamic in
(12:51):
the sixties. We'll be right back after the break. I
was out in Lancaster yesterday afternoon. I went by Duncan's
house where he was living at the end of his life.
And for a long time that house has been vacant,
and there was a car in the driveway this time.
(13:15):
So I went up and I knocked on the door.
There's a new owner and her name is Camelia Funderburke.
And I asked her if she knew anything about who
had lived in the home before or this case. She
had not known anything about this. She had lived in
Lancaster all her life, but I told her about it.
He played for the Baltimore Colts and he actually died
(13:35):
in the Lancaster police station. And I would like to
just play you her reaction and get your reaction to it.
Camelia Funderburke declined to let us use her voice in
this podcast, but Stonton's reaction to hearing the tape spoke volumes, Yeah,
that's she had never heard the story before, that some
(13:59):
total of her knowledge about this was be outlining the
facts for and it's fascinating, isn't it? And a little
frightening that her immediate conclusion is, I don't believe that
it's not completely crazy, right, like people absolutely have in
the course of American history walked up to officers and
(14:22):
attempted to wrestle their gun out of their holsters. So
why not believe it? I would hazard a guess it's
because either she doesn't trust police now, which may be
part of the story, or she thinks about what policing
was like at the time in the nineteen sixties and says,
there's no way that I'm going to trust that institution, right,
that's a distrust issue. Even then, if Duncan's death did
(14:45):
happen exactly as it's described based on what we know
of how police investigated the incident, there are critics, obviously,
who say that they sort of invited these kinds of
questions and second guessing based on what seemed like a
perfunctory kind of an investigation the incident. Is that fair
the criticism the criticism, absolutely, that's fair. Well, let's be
(15:05):
a little bit cautious. Investigations into police shootings in the
sixties do not look like what should be investigations of
police shootings today. Unfortunately, there are at least some investigations
of police shootings even today that would have looked pretty
normal back in the sixties. That's not because the investigations
in the sixties were so good. That's because even today
we still have some pretty shitty investigations into officer involved shootings.
(15:28):
There wasn't the same demand for that in the sixties,
and what demand there was was not from a part
of the population that really had the power to make
that demand a reality. Since the summer, when we've had
a number of high profile police killings, one of the
reasons that we've seen such a spotlight being shined on
(15:52):
policing is because of video, Because people who otherwise would
not have believed that police could do these things are
now looking at their phones and being shown effectively incontrovertible
proof that in fact, police do, on at least some occasions,
(16:14):
engage in these entirely and obviously inappropriate and egregious actions.
And then you have people, especially from the black community
or other communities of color, who say, of course that's possible.
We've known about stuff like that since um slavery. That's
not a surprise to us. Can you talk about what
(16:35):
sort of an investigation might have been done, what sort
of capabilities they would have had, technological or Okay, so
there are things that we could do today that wouldn't
necessarily have been an option at the time. And I'll
give you a very superficial example. Today, it would probably
be the case that the police station would have had
(16:57):
a security camera rolling. It would probably be pretty simple
to just pull the tape. So what would an investigation
look like? Well, the first sort of investigations one oh one,
which was as true in the nineteen sixties as it
is today, is you separate the witnesses and get statements
from them. There were multiple officers around, as I understand,
(17:18):
and you're going to want to separate them so they
don't cross contaminate each other's interviews. We're not just going
to say go in with a list of questions and
get specific answers. We want to have more open ended interviews.
We want to engage in what today is called cognitive interviewing,
and then we compare those statements to make sure that
they are consistent, and when we find inconsistencies, we look
(17:39):
for reasons for those inconsistencies, but would also be looking
at other pieces of evidence. We would, for example, do
a gunshot residue test, particularly back at the time, with
a revolver when the revolver goes off. Um, sorry, I
don't have a revolver. I don't think I'd didn't think
(18:00):
to ask how many firearms might be in this room?
Right now? I have a taser, very plastic. Uh, you
know the sad things. I used this as a prop
in class sometimes, and every time I use it as
a prop in class, I feel like I have to
say the gun you were about to see is not real.
Please don't come up and tackle me. I didn't used
(18:20):
to say that, and now I kind of have to
which ship. It's troubling. Okay. So this is a plastic
replica of a semi automatic firearm, and very basically, um,
in a real semi automatic firearm, this piece here would
come out that would be the magazine you would load
bullets into the magazine. A revolver is an old timey
(18:41):
wheel gun, and the wheel would have a little thing
that you pull out and then it would fall open
and you could put your five or six bullets in,
and then you close the wheel, and when you pulled
the trigger, the firing pin would hit the bullet and
send it to the barrel, and then the wheel would
rotate by one fifth or one sixth of a turn
(19:02):
to line the next bullet up with the barrel. A
semi automatic like this will eject gunshot residue, burnt powder,
a little bit of unburnt powder, the chemicals from the
explosion of the bullet in the chamber. A wheel gun,
a revolver is even more open, so you're going to
(19:23):
have even more gunpowder residue coming out of the back
sprang off to the sides. Obviously some coming out of
the front with a bullet coming out of the muzzle
with a bullet um, but there might be a lot
more gunpowder residue to test form. If you have no
gunpowder residue on someone's hands, you can be pretty sure
(19:44):
that that person either was not the shooter, or they
were the shooter, but they were wearing multiple sets of
gloves that came up to their forearms that someone took
off afterwards. Right. So in a case like this, I
would have wanted to see them test Jim Duncan's hands
for gunshot residue, and if it turns out that he
didn't have gunshot residue, then that would have suggested that
(20:05):
he was not the shooter here. Also, I mentioned that
when the bullet is fired, gunshot powder which is on
fire right, which is in the process of exploding, comes
out of the front of the gun. It propels the
bullet forward. Essentially, when the firearm is too close to someone,
(20:27):
the powder that's expelled from the front, the chemicals and
the residue that's expelled from the front can penetrate the skin.
That's called stippling. And what we now know, but I'm
not sure we would have known in the nineteen sixties,
is how to measure approximately a burn pattern from a
particular gun or the stippling pattern from a particular gun,
and estimate about how far away the gun was at
(20:49):
the time, also the position an angle of the wound.
And this is something that I would have expected them
to have been able to identify it's not always possible
to line up with perfect accuracy the penetration pattern of
a bullet, and thus to backtrack that and say, okay, well,
the bullet penetrated here, then it clearly came off at
(21:11):
this angle. But we can rule out certain things, right.
We can say, okay, well it definitely came from somewhere
over here as opposed to somewhere over here. If they're
examining this gunshot wound and the person is right handed,
but it's from over here, then we have some questions.
It's not impossible, but it becomes a little bit more
improbable when you start to put together things like distance
(21:35):
and angle. Then you can maybe, and I'm emphasizing maybe,
start to say this looks consistent with or this does
not look consistent with a self inflicted gun job wund
We'll be back after the break. Then we get into
(21:58):
the questions of report and what would be written down,
what would have what are current best practices and what
how do you anticipate they might have differed from what
was happening in a rural police station in the early
nineteen seventies. Yeah, best practices now are largely officers report
everything an officer's report is their representation of the facts
(22:24):
as best as they can make it. When you're talking
about an officer being involved in a critical incident, particularly
police shooting, the rules change a little bit. Ideally, you
still want the officer to give a statement, and you
still want them to give a statement fairly promptly. But
a lot of agencies now allow officers to either not
write their own report or to delay the providing of
(22:46):
a statement or report for reasons that I think are
are largely flawed, but it is common practice. We're going
to give the officer time to decompress a little bit,
maybe time to have a representative present with them, a
lawyer or a union rap or something like that. The
purported facts of this case is that this wasn't an
officer involved shooting. Applying modern standards, I would expect officers
(23:10):
to write reports as if this was a suicide that
they had witnessed. Back in the day at a smaller agency,
at a more rural agency, at an agency that may
not have been leading the charge of police reform and professionalization,
a lot of ship happened that never got reported, and
(23:30):
so is where today we might have this massive case
file hundreds of pictures, hundreds of pages of statements from officers,
of reports of witnesses, of forensic reports. Um. Yeah, in
a case like this, if you had anything, you might
have a one line or one paragraph right up in
the watch log. At eight oh three pm, one man
(23:54):
later identified as Jim Duncan entered, attempted to take an
officer's firearm and shot himself. Period it done. If you
had that, nobody's going to jail. The officers are never
gonna have to testify against anyone because the only bad
actor here, so to speak, is the decedent. Why bother?
That leaves the door open for a lot of questions
(24:16):
about how authoritative that narrator is. Yeah, it does, But
you know, at the time, officers didn't feel the need
to present an authoritative narrative because their verbal explanations would
be enough. At least it would be enough for everyone
who they cared about. And I want to emphasize that's
not policing specific right. We constantly make divisions based on
(24:38):
differences or perceived differences, and we're using them to adjust
how much deference we give the other person and how
much difference we expect them to give us. There's some
problems that are particularly acute in the policing context when
both people expect more deference than the other one is
(24:59):
giving them. Social psychologists called this an asymmetric deference norm.
The officer might say, this person should defer to me
because I am the authority. The other person might say
the officer should defer to me in at least some
respect because I am a taxpayer, or something like that.
(25:21):
The potential for conflict comes up when the officer may
not just view lack of deference as something that is upsetting.
They may view it is something that requires a physical response.
And I can think of no better example than the
Sandra Bland traffic stoff. Hello man, well it takes how
I've told The reason for your stop is you didn't fail.
You failed to signal lane change. You get a dramas
lice insurance with you. After an initial interaction, the officer
(25:45):
walked back to his car, wrote out what we later
learned as a warning ticket, walked back up to Sandra
Bland's car, and one of the first things he said
was you seem irritated. Okay, I'm like, now you you
this is Joja. I'm know you what you seem very irritated.
I am, I really am like that. But what I'm
doing tychical. I was getting out of your way. You're
(26:07):
speeding up tailorly, so I'll move over and you stop.
So yeah, I am a little irritated, but that doesn't
stop you from giving me a ticket. Sever If that
had been me in my newer model car, dressed in
my business suit, I think the cop would have, again,
unconsciously and without realizing it, given me a little more
deference than he gave Sandra Bland. But what he did
(26:29):
was Sandra Bland is He waited four seconds and he said,
are you done? You asked me what's wrong, and I
told you so now I'm doing you. In other words,
he was telling her, I'm not deferring to you that
I don't care about or respect your concerns. They were
(26:50):
in a staring contest, and the problem with the staring
contest in this context is not who blinks first. It's
who has the power to swing for and that's the officer.
I'm giving you a law for to turn around, will you.
I'm not complaining because you just pulled me out of
my car around and the idea that a guy coming
(27:12):
from Baltimore at the time, where he was royalty, where
he where he might have expected quite a bit of deference. Again,
I want to emphasize I'm not saying that is what happened.
But if Jim Duncan, the football star who is used
to deference and even a degree of hero worship in Baltimore,
comes down to South Carolina, the potential for explosive conflict
(27:36):
is pretty obvious. There's an interesting parallel here again that
in a lot of ways, NFL players are at the
forefront of this conversation about police interactions with communities of color. Yes, yes, yes,
look at I oh my god, the whole the kneeling,
the Colin Kaepernick's um. Yeah. Look at the way that
(27:57):
that we have responded as a society. Look at the
way that we responded to other sports figures taking stances
on things. No one got upset when Chuck Norris started
his Kick Drugs out of America program. These are the
faces of America's future now more than ever. They need
our help. Hi, I'm Chuck Nora. I want to talk
(28:22):
to you about our kids. What the hell does Chuck
Norris know about drugs? Stay in your lane, Chuck, that's
why I'm here to ask your support for kick drugs
out of America. Of course that would be absurd to say, right,
But Colin Kaepernick, he should just shut up and play
any case like this, whether it was Ferguson, whether it
was Lancaster, it's frustrating to try and pick apart because
(28:45):
we don't know if this was a cover up. Yeah,
we don't know if this was actually a straightforward, open
and chut kind of thing, or if it was a straightforward,
open and shut kind of a thing that was just
handled really badly. Yeah, what can we learn from this
historical incident that we can apply today? And one of
(29:05):
the things I can tell you, just very superficially is
we need accurate and legitimate investigations. At risk of repeating you,
there are some predictable possibilities to explain what happened. It
happened the way that the police later said it did,
and they acted appropriately in the aftermath. It happened the
(29:26):
way the police said it did, and they botched the aftermath.
It did not happen the way that the officers said
it did, and there is some ineptitude at best, or
active cover up at worst. We don't know. That's again
where trust comes in. That's again why trust is so
incredibly important. If I'm the police chief, I need to
(29:49):
be able to say we messed up or the circumstances,
the facts, the evidence certainly suggest that we messed up.
Here's what I'm going to do immediately, and here's what
I hope to do in the mid term, in the
long term, to make sure that we stay on top
of this. By acknowledging missteps, police agencies can build that
(30:12):
trust step by painful step so that when something happens,
and it's not a matter of if, it is a
matter of when. When something happens in which there is
ambiguity or uncertainty that can ignite a fire in the community,
when the police chief steps forward and says this is
not as bad as it looks, they'll have some trust
(30:34):
that if it was as bad as it looks, that
would be acknowledged. They're not going to have the same
questions then that we have now about the Jim Duncan shooting.
I'm Davin Coburn. Return Man is a production of The
Herald McClatchy Studios and I Heart Radio. Brett McCormick is
(30:55):
the lead reporter, and the show is produced by Matt Walsh,
Tara Tabor, Caught Stevens, and Rachel Wise. I'm the executive
producer from McLatchy Studios. The executive producer for I Heart
Radio is Sean Titone. For lots more on this story,
go to Harold Online dot com Slash return Man. If
you have any additional information about Jim Duncan's life or death,
(31:17):
email us at return Man at Harold online dot com.
To continue supporting this kind of work, visit Herald online
dot com slash podcasts and consider a digital subscription. And
for more podcasts for my Heart Radio, visit the I
Heart Radio app, Apple Podcasts, or wherever you listen to
your favorite shows
Welcome back to Long Shot, a production of McClatchy Studios
and I Heart Radio. I'm executive producer Davin Coburn. This
is a bonus feature for a return man, taking you
behind the scenes of a reporting process that lasted more
than three years. In researching Jim Duncan's death, lead reporter
Brett McCormick and the rest of our production team wanted
(00:22):
to better understand the actions taken or not by Lancaster
authorities following the shooting, and to learn more about how
police in that era approached their jobs in general. We're
continuing our coverage to night here on w c c
O m CBSN. Minnesota protesters have set fire to Minneapolis's
third police precinct. Policing has evolved over time and its
tactics and its priorities, and as we've all seen during
(00:46):
recent nationwide protests, the role that officers play in their
communities is the subject of much debate. The third precincts
where the officers involved in the George, Florida arrest were headquartered.
My initial reaction was, if we change the date, we
could be having a conversation about the Jim Douggins shooting
from a year ago. Seth Stowton, who you heard in
(01:08):
the show, has a unique perspective on that happened. He
was a police officer himself before becoming a lawyer. I
got sucked right back into studying from an academic and
legal perspective all of the stuff that I had previously
done as an officer, and he now teaches at the
University of South Carolina School of Law. Officers get involved
(01:28):
in a wide variety of very different situations, and good
policing is context specific. Student's expertise form the basis for
a ted X talk he gave there in Columbia. On
another level, though, we could identify a set of principles
that we could use to evaluate policing in almost any context.
Principles that shape the police function itself, what officers do
(01:52):
and how they do it, the way that officers view
their job, and the way that they relate to community members.
Return Man, Sir Rachel Wise and I sat down with
Stouton in his office to learn more about the history
of policing, lessons today's officers can take from Jim Duncan's case,
and what Stowton says is the best way forward. For
(02:13):
law enforcement in general through an approach known as guardian policing.
This conversation has been edited for length and clarity. All Right,
Jue Boy in My life in a nutshell Um. I
grew up in South Florida. I moved to North Florida
to go to college, to go to Florida the now
(02:34):
the Florida State University, and it was working as a
martial arts instructor at the time, and one of the
students at the martial arts studio where I worked was
the public information officer for the local police department. He
encouraged me to do ride along with him, which I
did to start volunteering in victim services at the police
(02:56):
department and eventually to apply as a reserve officer. That
was there five years. I ultimately left the city police
Department for a job as a state investigator. I was
there for more than two and a half years, and
in an effort to continue to expand my career horizons,
essentially went to law school at the University of Virginia.
(03:17):
I clerked for a judge for a year. I was
lucky enough to get an academic fellowship at Harvard Law
School for two years and then came here to the
University of South Carolina School of Law, where I've been well,
this is my sixth year here. What was your initial
gut reaction when you heard the basic overview of the
(03:37):
facts here. There are aspects of it that are obviously
different because it happened so long ago, But the issues
that it raises are exactly the same as a lot
of the issues that we see, and a lot of
the concerns that are brought to a head by the
Walter Scott shooting in North Charleston, or the Michael Brown
(03:59):
shooting in for Sit or the timure Rice shooting in
Cleveland and so on. There are questions about transparency and accountability.
There are questions about whether there was a sufficient investigation,
And the reason that that's a little depressing is because
the conversations that we're having now about policing aren't new.
They've actually been fairly steady, going back at least as
(04:22):
far as the eighteen thirties and forties. As American policing
really started the modern era of policing in this country
kicked off, there have been concerns about police abuses and
overreach and unfairly targeting certain population groups. About unaccountable extra
judicial killings and the like. So the shooting in the
(04:44):
individual incident may seem like an aberration, but one it's
not clear that as a factual matter, it is or
was that unusual, and too certainly with regard to the
concerns that it raises, those are not at all unusual.
And the timeline you laid out back to the eighteen
thirties and forties, very different place in American history, very
(05:06):
different place in South Carolina history, but apparently not a
very different place in these questions about police interactions with
communities of color, and I think it's inevitable. I think
we will always have those conversations. I don't think there's
a way to alleviate everyone's concerns about the role that
the police play. And it's because the police exist at
(05:27):
the very point of tension between society's need for order,
to be protected from people who do bad things, to
apprehend people who do bad things. Keeping in mind that
society's need for order requires us to allow the government
to infringe on our freedoms in different ways, to search
(05:47):
our cars, to use force. On the other hand, we
also demand in a democracy to be protected from government overreach.
How much freedom are we willing to give up to
get both my individual interest in freedom and also society's
interest in order. That's not a question that has a
(06:10):
stable answer. At any given point of time, in any
given community, they're going to be multiple perspectives about how
to balance those priorities. So to a certain extent, it's
very natural that we've always had these conversations. They're inevitable,
especially in this place. And I think about the Confederate
flag in the conversation that happened about that in this
(06:32):
concept of the government should not be overstepping its bounty.
And I can give you a historical example, right, um,
back a long time ago before and at the time
that American police agencies were really kicking off in cities
like Philadelphia, New York, in Boston, right, the big cities
were the first to adopt what we now would consider
(06:53):
a police force. South Carolina and a number of the
other states had slave acts that either allowed or required
the government to put together groups of usually white land
and slave owning men to round up fugitive slaves and
(07:15):
to effectively prevent slave uprisings by intimidating the black population.
Number of plantation owners didn't like those laws, not because
they wanted to look out for slaves rights. It's because
they didn't want the government interfering in what they viewed
as a plantation and slave owners prerogative of disciplining their
(07:36):
own slaves. They didn't want the government to get involved
in that. That was something for me as a man
to deal with and not something that the government should intervene. So,
even when we're talking about that really disturbing history that
I think it's important for us to acknowledge as one
of the precursors to modern policing, we still see this
(07:58):
resistance or this tension between how much do we want
to allow the government to infringe and how much do
we want to keep the government out. In the sixties
and seventies, when Duncan would have been growing up, and
then when he died, can you offer sort of a
general description of police procedures and the sort of tactical
(08:20):
and training revolution of that era. So there are a
couple of things to keep in mind about that era.
When policing was first introduced in this country, it was
introduced as a very localized endeavor, which of course it
is today. We don't have one police agency. In the
state of South Carolina, we have more than two hundred
police agencies. When policing originated in the larger cities and
(08:45):
spread to the midsize cities in starting in the eighteen
forties and getting into the eighteen fifties and sixties, the
officers job was in large part to make sure that
their local elected official state and power. Because someone knew
got voted in, they would fire all the police officers,
and then through a political patronage system, they would hire
(09:07):
an all new group of police officers, many of whom
would pay the political patron for the privilege of getting
hired as a police officer. Starting in the very late
eighteen hundreds and into the early nineteen hundreds, there was
a police reform or police professionalism movement. The reform era
sought to shift policing from a politically involved constituent services
(09:32):
type endeavor to being primarily about law enforcement and crime fighting.
Officers were crime fighters first and foremost. There are all
kinds of reasons why that was actually wrong. Crime started
going up and police agencies couldn't handle it. So the
image that they had been selling to the public, we
are crime fighters, let us do our thing, well, if
(09:54):
you're crime fighters, you're doing an awful job of it.
So that the perspectives started to shift in the sixties
and seventies, in part because of public pressure during the
Civil Rights movement. So that started what we now refer
to as the tactical revolution in policing, making sure that
there is now a book so that officers can go
(10:17):
by the book. But that was a slow process. It
didn't penetrate fully. Like a lot of things in policing.
It started at the largest agencies and kind of trickled
down to smaller agencies, which ultimately gets us to Jim
Duncan Lancaster event and these questions of trust faith. In
(10:39):
the aftermath of a critical incident like a shooting, there
is always going to be uncertainty. When Officer Wilson shot
and killed Michael Brown, there were different pieces of information
flying all over the place, and two narratives came out
of that, and one of those narratives was that Michael
(10:59):
Brown had violently attacked Officer Wilson and then was returning aggressively,
approaching a second time, purportedly to violently attack him again
at the time he was shot and killed. The second
narrative is that Officer Wilson shot Michael Brown while Michael
Brown's hands were up and he was surrendering. After that shooting,
(11:23):
I would hazard a guess that anyone who wasn't an
eyewitness did not have facts to figure out which narrative
was correct, which narrative they should believe. So one of
the big questions for me is not just what happened
in that shooting. One of the big questions is why
did so many people in Ferguson and the surrounding area
(11:44):
and across the country believe the second narrative? Why did
so many people think, Yeah, I could totally see that
an officer would shoot and kill an unarmed black man
whose hands were raised in surrender. The answer to that
question and his lack of trust. People in Ferguson, people
in the St. Louis area, and many people across the
(12:05):
country saw the shooting of an unarmed black man while
surrendering as consistent with their perspective of policing. So when
I see the Jim Duncan shooting story, it raises that
same question of trust, and it raises a question of power.
Who in that story trusted the police and who had
(12:29):
the power to express that trust or distrust. And I
don't just mean express it like saying it. I mean
express it through their actions. In Ferguson, you had a
lot of people who distrusted the police and were empowered
to show that distrust by marching, by protesting, by holding visuals.
I don't think you've had quite that same dynamic in
(12:51):
the sixties. We'll be right back after the break. I
was out in Lancaster yesterday afternoon. I went by Duncan's
house where he was living at the end of his life.
And for a long time that house has been vacant,
and there was a car in the driveway this time.
(13:15):
So I went up and I knocked on the door.
There's a new owner and her name is Camelia Funderburke.
And I asked her if she knew anything about who
had lived in the home before or this case. She
had not known anything about this. She had lived in
Lancaster all her life, but I told her about it.
He played for the Baltimore Colts and he actually died
(13:35):
in the Lancaster police station. And I would like to
just play you her reaction and get your reaction to it.
Camelia Funderburke declined to let us use her voice in
this podcast, but Stonton's reaction to hearing the tape spoke volumes, Yeah,
that's she had never heard the story before, that some
(13:59):
total of her knowledge about this was be outlining the
facts for and it's fascinating, isn't it? And a little
frightening that her immediate conclusion is, I don't believe that
it's not completely crazy, right, like people absolutely have in
the course of American history walked up to officers and
(14:22):
attempted to wrestle their gun out of their holsters. So
why not believe it? I would hazard a guess it's
because either she doesn't trust police now, which may be
part of the story, or she thinks about what policing
was like at the time in the nineteen sixties and says,
there's no way that I'm going to trust that institution, right,
that's a distrust issue. Even then, if Duncan's death did
(14:45):
happen exactly as it's described based on what we know
of how police investigated the incident, there are critics, obviously,
who say that they sort of invited these kinds of
questions and second guessing based on what seemed like a
perfunctory kind of an investigation the incident. Is that fair
the criticism the criticism, absolutely, that's fair. Well, let's be
(15:05):
a little bit cautious. Investigations into police shootings in the
sixties do not look like what should be investigations of
police shootings today. Unfortunately, there are at least some investigations
of police shootings even today that would have looked pretty
normal back in the sixties. That's not because the investigations
in the sixties were so good. That's because even today
we still have some pretty shitty investigations into officer involved shootings.
(15:28):
There wasn't the same demand for that in the sixties,
and what demand there was was not from a part
of the population that really had the power to make
that demand a reality. Since the summer, when we've had
a number of high profile police killings, one of the
reasons that we've seen such a spotlight being shined on
(15:52):
policing is because of video, Because people who otherwise would
not have believed that police could do these things are
now looking at their phones and being shown effectively incontrovertible
proof that in fact, police do, on at least some occasions,
(16:14):
engage in these entirely and obviously inappropriate and egregious actions.
And then you have people, especially from the black community
or other communities of color, who say, of course that's possible.
We've known about stuff like that since um slavery. That's
not a surprise to us. Can you talk about what
(16:35):
sort of an investigation might have been done, what sort
of capabilities they would have had, technological or Okay, so
there are things that we could do today that wouldn't
necessarily have been an option at the time. And I'll
give you a very superficial example. Today, it would probably
be the case that the police station would have had
(16:57):
a security camera rolling. It would probably be pretty simple
to just pull the tape. So what would an investigation
look like? Well, the first sort of investigations one oh one,
which was as true in the nineteen sixties as it
is today, is you separate the witnesses and get statements
from them. There were multiple officers around, as I understand,
(17:18):
and you're going to want to separate them so they
don't cross contaminate each other's interviews. We're not just going
to say go in with a list of questions and
get specific answers. We want to have more open ended interviews.
We want to engage in what today is called cognitive interviewing,
and then we compare those statements to make sure that
they are consistent, and when we find inconsistencies, we look
(17:39):
for reasons for those inconsistencies, but would also be looking
at other pieces of evidence. We would, for example, do
a gunshot residue test, particularly back at the time, with
a revolver when the revolver goes off. Um, sorry, I
don't have a revolver. I don't think I'd didn't think
(18:00):
to ask how many firearms might be in this room?
Right now? I have a taser, very plastic. Uh, you
know the sad things. I used this as a prop
in class sometimes, and every time I use it as
a prop in class, I feel like I have to
say the gun you were about to see is not real.
Please don't come up and tackle me. I didn't used
(18:20):
to say that, and now I kind of have to
which ship. It's troubling. Okay. So this is a plastic
replica of a semi automatic firearm, and very basically, um,
in a real semi automatic firearm, this piece here would
come out that would be the magazine you would load
bullets into the magazine. A revolver is an old timey
(18:41):
wheel gun, and the wheel would have a little thing
that you pull out and then it would fall open
and you could put your five or six bullets in,
and then you close the wheel, and when you pulled
the trigger, the firing pin would hit the bullet and
send it to the barrel, and then the wheel would
rotate by one fifth or one sixth of a turn
(19:02):
to line the next bullet up with the barrel. A
semi automatic like this will eject gunshot residue, burnt powder,
a little bit of unburnt powder, the chemicals from the
explosion of the bullet in the chamber. A wheel gun,
a revolver is even more open, so you're going to
(19:23):
have even more gunpowder residue coming out of the back
sprang off to the sides. Obviously some coming out of
the front with a bullet coming out of the muzzle
with a bullet um, but there might be a lot
more gunpowder residue to test form. If you have no
gunpowder residue on someone's hands, you can be pretty sure
(19:44):
that that person either was not the shooter, or they
were the shooter, but they were wearing multiple sets of
gloves that came up to their forearms that someone took
off afterwards. Right. So in a case like this, I
would have wanted to see them test Jim Duncan's hands
for gunshot residue, and if it turns out that he
didn't have gunshot residue, then that would have suggested that
(20:05):
he was not the shooter here. Also, I mentioned that
when the bullet is fired, gunshot powder which is on
fire right, which is in the process of exploding, comes
out of the front of the gun. It propels the
bullet forward. Essentially, when the firearm is too close to someone,
(20:27):
the powder that's expelled from the front, the chemicals and
the residue that's expelled from the front can penetrate the skin.
That's called stippling. And what we now know, but I'm
not sure we would have known in the nineteen sixties,
is how to measure approximately a burn pattern from a
particular gun or the stippling pattern from a particular gun,
and estimate about how far away the gun was at
(20:49):
the time, also the position an angle of the wound.
And this is something that I would have expected them
to have been able to identify it's not always possible
to line up with perfect accuracy the penetration pattern of
a bullet, and thus to backtrack that and say, okay, well,
the bullet penetrated here, then it clearly came off at
(21:11):
this angle. But we can rule out certain things, right.
We can say, okay, well it definitely came from somewhere
over here as opposed to somewhere over here. If they're
examining this gunshot wound and the person is right handed,
but it's from over here, then we have some questions.
It's not impossible, but it becomes a little bit more
improbable when you start to put together things like distance
(21:35):
and angle. Then you can maybe, and I'm emphasizing maybe,
start to say this looks consistent with or this does
not look consistent with a self inflicted gun job wund
We'll be back after the break. Then we get into
(21:58):
the questions of report and what would be written down,
what would have what are current best practices and what
how do you anticipate they might have differed from what
was happening in a rural police station in the early
nineteen seventies. Yeah, best practices now are largely officers report
everything an officer's report is their representation of the facts
(22:24):
as best as they can make it. When you're talking
about an officer being involved in a critical incident, particularly
police shooting, the rules change a little bit. Ideally, you
still want the officer to give a statement, and you
still want them to give a statement fairly promptly. But
a lot of agencies now allow officers to either not
write their own report or to delay the providing of
(22:46):
a statement or report for reasons that I think are
are largely flawed, but it is common practice. We're going
to give the officer time to decompress a little bit,
maybe time to have a representative present with them, a
lawyer or a union rap or something like that. The
purported facts of this case is that this wasn't an
officer involved shooting. Applying modern standards, I would expect officers
(23:10):
to write reports as if this was a suicide that
they had witnessed. Back in the day at a smaller agency,
at a more rural agency, at an agency that may
not have been leading the charge of police reform and professionalization,
a lot of ship happened that never got reported, and
(23:30):
so is where today we might have this massive case
file hundreds of pictures, hundreds of pages of statements from officers,
of reports of witnesses, of forensic reports. Um. Yeah, in
a case like this, if you had anything, you might
have a one line or one paragraph right up in
the watch log. At eight oh three pm, one man
(23:54):
later identified as Jim Duncan entered, attempted to take an
officer's firearm and shot himself. Period it done. If you
had that, nobody's going to jail. The officers are never
gonna have to testify against anyone because the only bad
actor here, so to speak, is the decedent. Why bother?
That leaves the door open for a lot of questions
(24:16):
about how authoritative that narrator is. Yeah, it does, But
you know, at the time, officers didn't feel the need
to present an authoritative narrative because their verbal explanations would
be enough. At least it would be enough for everyone
who they cared about. And I want to emphasize that's
not policing specific right. We constantly make divisions based on
(24:38):
differences or perceived differences, and we're using them to adjust
how much deference we give the other person and how
much difference we expect them to give us. There's some
problems that are particularly acute in the policing context when
both people expect more deference than the other one is
(24:59):
giving them. Social psychologists called this an asymmetric deference norm.
The officer might say, this person should defer to me
because I am the authority. The other person might say
the officer should defer to me in at least some
respect because I am a taxpayer, or something like that.
(25:21):
The potential for conflict comes up when the officer may
not just view lack of deference as something that is upsetting.
They may view it is something that requires a physical response.
And I can think of no better example than the
Sandra Bland traffic stoff. Hello man, well it takes how
I've told The reason for your stop is you didn't fail.
You failed to signal lane change. You get a dramas
lice insurance with you. After an initial interaction, the officer
(25:45):
walked back to his car, wrote out what we later
learned as a warning ticket, walked back up to Sandra
Bland's car, and one of the first things he said
was you seem irritated. Okay, I'm like, now you you
this is Joja. I'm know you what you seem very irritated.
I am, I really am like that. But what I'm
doing tychical. I was getting out of your way. You're
(26:07):
speeding up tailorly, so I'll move over and you stop.
So yeah, I am a little irritated, but that doesn't
stop you from giving me a ticket. Sever If that
had been me in my newer model car, dressed in
my business suit, I think the cop would have, again,
unconsciously and without realizing it, given me a little more
deference than he gave Sandra Bland. But what he did
(26:29):
was Sandra Bland is He waited four seconds and he said,
are you done? You asked me what's wrong, and I
told you so now I'm doing you. In other words,
he was telling her, I'm not deferring to you that
I don't care about or respect your concerns. They were
(26:50):
in a staring contest, and the problem with the staring
contest in this context is not who blinks first. It's
who has the power to swing for and that's the officer.
I'm giving you a law for to turn around, will you.
I'm not complaining because you just pulled me out of
my car around and the idea that a guy coming
(27:12):
from Baltimore at the time, where he was royalty, where
he where he might have expected quite a bit of deference. Again,
I want to emphasize I'm not saying that is what happened.
But if Jim Duncan, the football star who is used
to deference and even a degree of hero worship in Baltimore,
comes down to South Carolina, the potential for explosive conflict
(27:36):
is pretty obvious. There's an interesting parallel here again that
in a lot of ways, NFL players are at the
forefront of this conversation about police interactions with communities of color. Yes, yes, yes,
look at I oh my god, the whole the kneeling,
the Colin Kaepernick's um. Yeah. Look at the way that
(27:57):
that we have responded as a society. Look at the
way that we responded to other sports figures taking stances
on things. No one got upset when Chuck Norris started
his Kick Drugs out of America program. These are the
faces of America's future now more than ever. They need
our help. Hi, I'm Chuck Nora. I want to talk
(28:22):
to you about our kids. What the hell does Chuck
Norris know about drugs? Stay in your lane, Chuck, that's
why I'm here to ask your support for kick drugs
out of America. Of course that would be absurd to say, right,
But Colin Kaepernick, he should just shut up and play
any case like this, whether it was Ferguson, whether it
was Lancaster, it's frustrating to try and pick apart because
(28:45):
we don't know if this was a cover up. Yeah,
we don't know if this was actually a straightforward, open
and chut kind of thing, or if it was a straightforward,
open and shut kind of a thing that was just
handled really badly. Yeah, what can we learn from this
historical incident that we can apply today? And one of
(29:05):
the things I can tell you, just very superficially is
we need accurate and legitimate investigations. At risk of repeating you,
there are some predictable possibilities to explain what happened. It
happened the way that the police later said it did,
and they acted appropriately in the aftermath. It happened the
(29:26):
way the police said it did, and they botched the aftermath.
It did not happen the way that the officers said
it did, and there is some ineptitude at best, or
active cover up at worst. We don't know. That's again
where trust comes in. That's again why trust is so
incredibly important. If I'm the police chief, I need to
(29:49):
be able to say we messed up or the circumstances,
the facts, the evidence certainly suggest that we messed up.
Here's what I'm going to do immediately, and here's what
I hope to do in the mid term, in the
long term, to make sure that we stay on top
of this. By acknowledging missteps, police agencies can build that
(30:12):
trust step by painful step so that when something happens,
and it's not a matter of if, it is a
matter of when. When something happens in which there is
ambiguity or uncertainty that can ignite a fire in the community,
when the police chief steps forward and says this is
not as bad as it looks, they'll have some trust
(30:34):
that if it was as bad as it looks, that
would be acknowledged. They're not going to have the same
questions then that we have now about the Jim Duncan shooting.
I'm Davin Coburn. Return Man is a production of The
Herald McClatchy Studios and I Heart Radio. Brett McCormick is
(30:55):
the lead reporter, and the show is produced by Matt Walsh,
Tara Tabor, Caught Stevens, and Rachel Wise. I'm the executive
producer from McLatchy Studios. The executive producer for I Heart
Radio is Sean Titone. For lots more on this story,
go to Harold Online dot com Slash return Man. If
you have any additional information about Jim Duncan's life or death,
(31:17):
email us at return Man at Harold online dot com.
To continue supporting this kind of work, visit Herald online
dot com slash podcasts and consider a digital subscription. And
for more podcasts for my Heart Radio, visit the I
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