Objective Reasonableness In Police Activity: A Constitutional Essay

This past weekend I was able to spend some time with a longtime friend of mine from Los Angeles who had recently graduated as a sheriff’s deputy for Los Angeles County, and shortly before this I found out that another friend of mine had graduated to become part of the thin blue line as a police officer for the City of Los Angeles, even serving as class president among his peers.  That conversation sparked some thinking about a series of posts to deal with the question of service in the police or related professions from the point of view of biblical law and practice, but the friend I spoke to also considered it of the utmost importance that I reflect on a couple of Supreme Court decisions that officers have to cite often, and so I thought it would be worthwhile before I discuss at length the legitimacy of service in the police and sheriff’s departments and departments of corrections for Christians to discuss the constitutional law, as interpreted by the Supreme Court, that governs their conduct.  Although rare, from time to time situations make a constitutional essay like this a worthwhile endeavor [1].

Not being a legal scholar, but as a historian with a strong interest in constitutional law and its implications on current events, I will briefly summarize the two cases, put them in a context with each other, and then comment briefly about the implications of these Supreme Court decisions on the conduct of officers and on the way that their behavior should be viewed by the general public.  I have also included links to both decisions on Justia for those who wish for a more in-depth discussion of the cases in question:  Tennessee vs. Garner, decided 6-3 in 1985 by the Berger court, and Graham vs. Connor, decided by six judges with the other three concurring in part in 1989 by the Rehnquist court.  To summarize very briefly, in Tennessee vs. Garner it was decided that a Tennessee statute authorizing the use of any and all force against those running away from cops was unconstitutional because a nonviolent criminal who posed no threat to others did not warrant being killed by officers simply because of taking to flight [2].  Four years later, in Graham vs. Connor, it was decided that police officers in the heat of the moment must be judged by an objectively reasonable fourth amendment standard based on their knowledge of the situation as well as the conduct of the person being apprehended, including whether or not they are armed or whether they resist, rather than from any sort of understanding based on hindsight.

What do these decisions mean, when viewed together as part of a related legal context?  As it happens, the first case prohibits states or any other jurisdiction from making statutory allowances for officers to freely engage in any sort of conduct in apprehending others.  If a frightened but nonviolent offender who poses no threat to others runs away from an arresting cop, deadly force cannot be allowed as a legal standard.  Instead, police officers are free to make objectively reasonable decisions based on their experience and knowledge of the situation and their judgment of how dangerous a situation is, and are free as part of their ordinary practice to undertake their responsibilities based on that standard, which must be stated, even if knowledge that the cop does not have at the time would have changed the decision that was made.  Police officers must act based on the situation at hand as they see it, and are not held to a standard where hindsight can be held against them.

This has serious implications that put our contemporary behavior as a society in a rather unflattering light.  So long as a police officer can view a situation or someone who is fleeing or resisting arrest as a dangerous one for themselves or others, they are within their rights to use force, up to and including deadly force.  If someone violently resists because of a medical problem, the cop is not held responsible for that knowledge because it comes after the fact and not in the heat of the moment when the officer is making that decision.  It is not assumed that police officers require omniscience or perfect judgment about the decisions that they make.  Someone who appears armed and is present in a dangerous situation may not be a threat, but can credibly be viewed as a threat, with often tragic and unfortunate results.  Yet the constitutional law as it has been decided by the Supreme Court allows police officers considerable latitude in using their best judgment in situations that can often be viewed as dangerous.  It is for this reason, mainly, based on case law, that the benefit of the doubt is extended to police officers so long as they can make an objectively reasonable judgment that a person or situation is dangerous to themselves or to others, which leads to a situation where police officers are often found not guilty in cases where a significant amount of people think that such officers have used excessive force against others based on attempts by the press to stir up sympathy for subaltern groups as well as the release of only partial footage that favors the dead suspects rather than showing the full picture that jurors see in court.

There are many implications for this.  Being a nerdy and gimpy person who frequently walks with a limp and sometimes with crutches, I am not the sort of person who would be readily seen as dangerous and threatening by most people, including police officers.  As a result, my interactions with the police in the United States and around the world has sometimes been tense, but it has not been violent.  On the other hand, there are considerable populations who would appear far more dangerous and threatening than I would by virtue of being armed, more belligerent, and less deferential and cordial with police officers, and somewhat predictably, if lamentably, such people bear the brunt of the standard of objective reasonableness.  No one in their right mind would consider me, holding books and walking with a crutch, to be a threat to anyone as I hobble around, but an armed and hostile person with face tattoos and lots of priors from the inner city is not likely to be given the same benefit of the doubt and is likely to have far more unpleasant and potentially deadly interactions with police officers.  The results, given the case law that governs police practice, is in these lights entirely unsurprising.  What is surprising and unfortunate is how little this case law is understood by those whose sympathy for problematic and troublesome subaltern groups outweighs their fidelity to the legal order of our nation.

[1] See, for example:

https://edgeinducedcohesion.blog/2011/02/09/powers-denied-to-the-states-a-constitutional-essay/

https://edgeinducedcohesion.blog/2012/01/30/powers-denied-to-congress-a-constitutional-essay/

https://edgeinducedcohesion.blog/2012/11/09/puerto-ricos-road-to-statehood-a-constitutional-essay/

https://edgeinducedcohesion.blog/2016/07/30/the-fugitive-slave-clause-a-constitutional-essay/

https://edgeinducedcohesion.blog/2016/11/14/the-enduring-usefulness-of-the-electoral-college-a-constitutional-essay/

[2] See, for example:

https://edgeinducedcohesion.blog/2013/11/29/why-do-they-always-run/

https://edgeinducedcohesion.blog/2011/02/20/bad-boys-bad-boys-whatcha-gonna-do/

About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
This entry was posted in American History, History, Musings and tagged , , . Bookmark the permalink.

5 Responses to Objective Reasonableness In Police Activity: A Constitutional Essay

  1. Pingback: A Thin Blue Line: Part One | Edge Induced Cohesion

  2. Catharine Martin says:

    The idea of “reasonableness” is one of objectivity, but each incident is a judgment call and the fall-out fans the flame of subjective emotion. This is the tension that so divides the masses and keepers of the peace. While it is always wrong for an officer to shoot anyone in the back, it is never right for the suspect to cry “foul” when he or she acts in a suspicious manner and then is treated less than gently for it.

  3. Catharine Martin says:

    Too many people remain stuck in their own heads. Most seem to be unable to put themselves in the other person’s shoes. Seeing alternate viewpoints is often called “playing the devil’s advocate” which has a not-so-nice ring to it. This is a shame, since it inhibits mutual understanding. The divide continues.

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