WHO IS THE REASONABLE POLICE OFFICER? A LOCALIZED SOLUTION TO A NATIONWIDE PROBLEM

In Graham v. Connor, the Supreme Court held that a Fourth Amendment reasonableness standard governed the analysis of any allegation that a law enforcement officer used excessive force during an arrest or investigatory stop. In particular, courts were to evaluate the reasonableness of the need to use force from the perspective of a hypothetical reasonable police officer at the scene. While this test seems straightforward, the Supreme Court has provided little guidance on how exactly to apply the reasonable police officer analysis. As a result, it has been criticized as a vague standard, which is difficult for courts to apply, and unduly deferential to the police.

This Note proposes that courts adopt a localized conception of the reasonable police officer as a modest reform within the existing framework for excessive force analysis. Under the localized conception, courts would assign objective attributes, particular to the jurisdiction where the excessive force allegedly happened, to the hypothetical reasonable police officer. Accordingly, the reasonable police officer becomes less of an amorphous standard and more of a concrete vehicle for analysis that is responsive to local notions of acceptable police behavior.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2022, Columbia Law School. I would like to thank Professor Jeffrey Fagan for his invaluable guidance and the entire staff of the Columbia Law Review for their tireless work and thoughtful edits. I would also like to thank my family and partner for their unwavering support.

Introduction

A series of recent, high-profile police-involved killings has once again brought the issues of police brutality and excessive force to the forefront of the national consciousness and reinvigorated calls for police reform. 1 See, e.g., John Eligon & Will Wright, In Louisville, Looking to Protests of the Past to Move Forward, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/us/louisville-protests-civil-rights.html (on file with the Columbia Law Review) (covering the development of protests following the death of Breonna Taylor, who was shot by police officers executing a “no knock” warrant); Dionne Searcey & David Zucchino, Protests Swell Across America as George Floyd Is Mourned Near His Birthplace, N.Y. Times (June 6, 2020), https://www.ny
times.com/2020/06/06/us/george-floyd-memorial-protests.html (on file with the Columbia Law Review) (last updated Sept. 7, 2021) (covering protests and reactions in the wake of the murder of George Floyd, who died while handcuffed because a police officer knelt on his neck). For those alleging that the police used excessive force against them, one possible means of recourse is to file a § 1983 lawsuit against the police officer who used the force. 2 42 U.S.C. § 1983 (2018). Section 1983 provides individuals with the right to sue government officials and those acting “under the color of law” for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Id. Individuals commonly use § 1983 litigation to impose liability on individual police officers for misconduct such as use of excessive force and as a means to vindicate their civil rights. See Alison L. Patton, Note, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 Hastings L.J. 753, 754 (1993) (“[C]ivil rights lawyers continue to bring section 1983 suits because they view such actions as an important tool to address police brutality . . . .”). The individual’s claim in such a lawsuit is that the police officer violated their Fourth Amendment right to be free from unreasonable seizure by using excessive force. 3 U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). Under current Fourth Amendment jurisprudence, courts assess whether the use of force—conceptualized as a “seizure”—was reasonable by evaluating the need to use force based “on the facts and circumstances” of the particular situation from the perspective of a hypothetical reasonable police officer. 4 See Graham v. Connor, 490 U.S. 386, 396–97 (1989). This basic framework for excessive force analysis appears to be straightforward, but the Supreme Court has provided little guidance on how to apply it, resulting in an opaque excessive force doctrine, which has been criticized as “a factbound morass.” 5 Scott v. Harris, 550 U.S. 372, 383 (2007); see also infra note 60 (citing legal scholars who note the unclarity regarding Graham’s excessive force test). Perplexingly, but in line with the general lack of clarity surrounding excessive force analysis, there is no guidance on what qualities characterize the hypothetical reasonable police officer. 6 See infra section II.A. Commentators have written copious amounts of discourse about the need to clarify the excessive force analysis and have asked for courts to include additional considerations in the analysis. They have also called attention to other issues with the reasonable police officer standard. 7 See, e.g., Geoffrey P. Alpert & William C. Smith, How Reasonable Is the Reasonable Man?: Police and Excessive Force, 85 J. Crim. L. & Criminology 481, 482, 484–86 (1994) (criticizing the reasonable police officer standard as being unclear and difficult for courts to apply); David B. Goode, Law Enforcement Policies and the Reasonable Use of Force, 54 Willamette L. Rev. 371, 404 (2018) (arguing that courts should consider police department policies on use of force in determining how the reasonable police officer would have acted); Lindsey Webb, Legal Consciousness as Race Consciousness: Expansion of the Fourth Amendment Seizure Analysis Through Objective Knowledge of Police Impunity, 48 Seton Hall L. Rev. 403, 408–09 (2018) (arguing that the reasonable person standard used throughout Fourth Amendment analysis should incorporate the assumption that the reasonable person knows that people of color are disproportionately affected by police misconduct); Benjamin Buchwalter, Note, Return to “Reasonable” in Section 1983 Police Pursuit Excessive Force Litigation, 65 Hastings L.J. 1665, 1673 (2014) (arguing that the reasonable police officer standard, as applied in claims of excessive force during police pursuits, is overly deferential to the police and provides little guidance to courts). Yet, there is little scholarship on providing a cohesive framework to aid in understanding the attributes assigned to the reasonable police officer. 8 The one piece of legal scholarship that alludes to something like a framework for understanding the attributes assigned to the reasonable police officer is Professor Mitch Zamoff’s recently published article. See Mitch Zamoff, Determining the Perspective of a Reasonable Police Officer: An Evidence-Based Proposal, 65 Vill. L. Rev. 585 (2020). Professor Zamoff’s primary argument is that the reasonable police officer standard does not account for the differences between the police and ordinary citizens and has been turned into a “reasonable person in a high-stress situation” standard. Id. at 590. In other words, the perspective of the hypothetical reasonable police officer used by courts is no different from the perspective of an ordinary reasonable person. As a solution, Professor Zamoff relies on evidence law to propose that courts consider evidence of the officer’s training, experience, and compliance with their agency’s policies and procedures. Id. at 592. While this Note also advocates for consideration of training along with departmental policies and procedures, this Note’s primary argument is that courts must conceptualize the reasonable police officer as more than an abstract standard used to give deference to the police. Instead, it should be a model—based on objective attributes—of how police should act in a given situation. The underlying theme is that policing varies by jurisdiction, and officers in different jurisdictions are subject to different governing circumstances. Additionally, Professor Zamoff invites subjectivity into his proposed analysis by asking courts to consider the individual officer’s actual training and experience. Id. This Note, however, limits attributes assigned to the reasonable police officer to objective ones that a court could fairly assume of a reasonable officer on the scene.

This Note argues that a localized conception of the reasonable police officer should be used as a framework to inform courts of the relevant characteristics of the reasonable police officer. The localized conception would have courts assign objective attributes, particular to the jurisdiction where the excessive force was alleged, to the hypothetical reasonable police officer used in excessive force analysis. Part I of this Note describes how the excessive force inquiry has developed and highlights some of the policy considerations informing its development. Additionally, Part I points out the confusion that the lack of Supreme Court guidance has created.

Part II then examines how the lack of clarity about the characteristics of the reasonable police officer creates problems for excessive force analysis. Section II.A argues that this lack of clarity adds to the confusion about what information courts should consider in evaluating whether a particular use of force was reasonable. Section II.B then describes how a lack of consensus regarding acceptable police behavior further compounds this confusion, as illustrated by jurisdictional variations in policing standards. Section II.C argues that this lack of clarity accommodates negative biases or sensory misperceptions that police may have, potentially leading to excessive use of force.

Finally, Part III suggests a novel framework for courts to use in the excessive force inquiry. This framework, the localized conception of the reasonable police officer, asks courts to hold that the reasonable police officer takes on objective attributes particular to the jurisdiction where the excessive force is alleged. 9 For example, the framework assumes that the reasonable police officer is aware of and in compliance with a state law that requires exhaustion of all reasonable alternatives before using deadly force. See infra section III.A.1. The localized conception of the reasonable police officer is a unique contribution to the literature on excessive force in that it offers courts a method to decide what attributes are given to the reasonable police officer and not just whether a specific consideration is relevant to the excessive force inquiry. 10 See supra note 7 and accompanying text (highlighting excessive force literature that calls for particular considerations to be examined during excessive force analysis).