Bonus 1: Seth Stoughton

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. To continue supporting work like this, visit heraldonline.com/podcasts and consider a digital subscription. 

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Episode Transcript

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
continued our coverage to night here on w c c
O m CBSN. Minnesota protesters have sat fire in Minneapolis's
Third Police Precinct. Policing has evolved over time in its

(00:42):
tactics and its priorities, and as we've all seen during
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 Floyd arrest were headquartered.
My initial reaction was, if we change the date, we
could be having a conversation about the Jim Tuggan shooting

(01:04):
from a year ago. Seth Stowton, who you heard in
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. Stowtn's expertise formed 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 Produce, 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

(02:12):
forward for law enforcement in general through an approach known
as guardian policing. This conversation has been edited for length
and clarity. Alright, Juel 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

(02:32):
Florida State the now 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

(02:55):
services at the police 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

(03:15):
the University of Virginia. 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

(03:36):
basic overview of the 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

(03:58):
the Michael Brown shooting in for You In or the
timor 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,

(04:21):
going back at least as 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.

(04:42):
So the shooting in the 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

(05:04):
place in American history, very 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

(05:25):
the police exist at 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

(05:46):
different ways, to search 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

(06:08):
a question that has a 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

(06:31):
happened about that in this 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

(06:53):
now would consider 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

(07:14):
fugitive slaves and 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

(07:35):
disciplining their 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,

(07:58):
we still see this 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

(08:19):
sort of tactical 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

(08:44):
cities and 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 in 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,
the 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 you 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

(16:13):
occasions 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, science 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 think to

(18:00):
ask how many firearms might be in this room right now?
I have a taser. Okay, 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 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 wheel gun,

(18:42):
and the wheel would have a little thing that you
pull out and then it would fall open. Then 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 toligne the
next bullet up with the barrel. A semi automatic like

(19:07):
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 have even more
gunpowder residue coming out of the back sprang off to
the sides. Obviously some coming out of the front with

(19:30):
the bullet coming out of the muzzle with a bullet,
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 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

(19:54):
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 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

(20:17):
of exploding, comes out of the front of the gun.
It propels the bullet forward. Essentially, when the firearm is
too close to someone, 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

(20:37):
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 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

(20:59):
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 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

(21:22):
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 and angle. Then you can maybe,
and I'm emphasizing maybe, start to say this looks consistent

(21:44):
with or this does not look consistent with a self
inflected gun job wound. We'll be back after the break.
Then we get into 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

(22:07):
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 as best as they can make it.
When you're talking about an officer being involved in a

(22:29):
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 a statement or report for reasons that I think

(22:49):
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
so is where today we might have this massive case

(23:33):
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. Ye, 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, when it takes how
I've told the reason three stops. You didn't fail, you
failed to signal your lane change. You get you DRAMs
line in churance with you. After an initial interaction, the

(25:44):
officer 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, no, you
you this is Joja. I'm know you what you seem
very irritated. I am, I really am. Was that? But

(26:04):
what I'm getting a typical I'm getting out of your way.
You're just speeding up tailor me, so I'll move over
and you stop here. So yeah, I am a little irritated,
but that doesn't stop you from giving me a ticket. Crap.
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

(26:26):
more deference than he gave Sandra Bland. But what he
did was Santra Bland is He waited four seconds and
he said, are you done? You asked me what wrong?
And I tell him you okay, So now I'm telling you.
In other words, he was telling her, I'm not deferring
to you that I don't care about or respect your concerns.

(26:50):
They were 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 first, and that's
the officer. I'm giving you a law for to turn around.
You're going, I'm not complaining because you just pulled me
out of my car around and the idea that a

(27:11):
guy coming 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,

(27:33):
the potential for explosive conflict 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

(27:54):
Colin Kaepernick's um. Yeah. Look at the way that 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,

(28:20):
I'm Chuck Norris. I want to talk 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

(28:43):
to try and pick apart because we don't know if
this was a cover up. Yeah, we don't know if
this was actually a straightforward, open and chuck kind of thing,
or if it was a straightforward, open and shut kind
of thing that was just handled really badly. Yeah. What
can we learn from this historical incident that we can
apply today? And one of the things I can tell you,

(29:06):
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 way the police said it did,

(29:28):
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,
my trust is so incredibly important. If I'm the police chief,

(29:49):
I need to be able to say we messed up
or the circumstances, the facts, the evidence certainly suggests 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

(30:10):
can build that 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,

(30:33):
they'll have some trust 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 on Davin Coburn. Return Man
is a production of The Herald, McClatchy Studios and I
Heart Radio. Brett McCormick is the lead reporter and the

(30:56):
show is produced by Matt Walsh, Tarat Tabor, Caught Stevens,
and Rachel Wise. I'm the executive producer from McClatchy Studios.
The executive producer for I Heart Radio is Shan 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, email us at

(31:18):
return Man at Harold online dot com. To continue supporting
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