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.
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.
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.
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.
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.”
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.
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.
Yet, there is little scholarship on providing a cohesive framework to aid in understanding the attributes assigned to the reasonable police officer.
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.
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.