In part one, we examined the terms “minimal force” and “necessary force.” Although still widely used in discussions regarding an officer’s use of force it should be apparent now that these terms carry some negative baggage with them as a force standard. We will now continue the exploration of these force standards to include the standard that I advocate for: “objectively reasonable.”
Speaking from a grammatical point of view, the term “objectively-reasonable force” is a much more accurate standard to describe what officers using force should be held to.
The term does not carry the unrealistically-utopian idealism of the term “minimal force.” It also does not give any implication that it describes an exact quantum of force that can be debated for weeks. It does not give the idea that a use of force should be looked at with hindsight to determine if it really was “necessary.”
Indeed, all one needs to do is to revisit our friend Merriam-Webster’s Online Dictionary. The word reasonable (used as an adjective) also has several meanings and synonyms. Included in this list are:
1.) being in accordance with reason, and
2.) not extreme or excessive.
A few of the listed synonyms include: good, rational, logical, sensible, and sound.
When comparing the definitions of the terms written about in this article, would you rather be held to a standard that:
1.) requires absolute certainty and can consider facts that were discovered with hindsight, or
2.) takes into consideration the legal standard used by the Supreme Court of the United States and human performance limitations.
I know the answer is obvious to me.
I realize that some will dismiss this thinking as “just semantics.” I caution those naysayers with the same words one of my trainers told me several years ago, “the law is comprised of words, and those words have definitions.” Please take heed to these wise words as it is for your benefit.
Objective/Subjective Decision — Objective Analysis
The word “objectively” is the adverb form of the word “objective.” In this case it is used as a modifier of the adjective “reasonable” to describe the noun “force” (sorry for the grammar lesson…again). Another quick check with Merriam-Webster’s Online Dictionary reveals the definition of “objective” to include, “involving or deriving from sense perception or experience with actual objects, conditions, or phenomena.” Listed synonyms include; empirical and observational.
An officer will make his/her force-option decision based on the actions of the suspect. If the suspect is non-resistive and compliant, the officer will have no reason to have to resort to a force response. So in essence, it is the suspect who forces an officer to choose a force response.
The force option chosen and how it is deployed and used against the suspect can have a subjective component. The officer may have a choice of reasonable options but based on personal preference may lean toward one more than the other. This is where the subjectivity comes into play. The decision made must still be made based on objective facts known to the officer at the time of the force application.
The officer’s force response will definitely be evaluated from an objective standard, as one will clearly recognize after reading and understanding the true legal standard of an officer’s use of force.
The True Legal Standard
In 1989, the Supreme Court of the United States (SCOTUS) handed down one of the landmark decisions regarding an officer’s use of force. The case was Graham v. Connor (490 U.S. 386). This decision created a national standard that is still in place today. In its decision, the SCOTUS made it clear that an officer’s use of force on a free citizen is to be evaluated as a seizure of the person under the Fourth Amendment. Indeed, the SCOTUS said in its holding:
All claims that law enforcement officials have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard.
What is important to the reader for this article is the phrase “objective reasonableness.” How did the SCOTUS come to this term? Perhaps a quick review of the Fourth Amendment can shed some light. The Fourth Amendment protects the people against unreasonable searches and seizures by the government and its agents. Therefore it would logically follow that officers must act reasonably when seizing people.
Graham set forth several evaluation guidelines and factors to be taken into consideration when evaluating an officer’s use of force. These evaluation guidelines include one overarching direction to anybody who chooses to opine about an officer’s force response:
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.
Once the person that chooses to render his/her opinion understands this overarching direction, they also need to be aware of these guidelines while making their determination of the reasonableness of the officer’s force response:
1.) Judged through the perspective of a reasonable officer
a. Officer with same or similar training and experience
b. Facing similar circumstances
c. Act the same way or use similar judgment
2.) Based on the totality of the facts known to the officer at the time the force was applied
a. No matter how compelling the evidence is to be found later
b. No hindsight evaluation
3.) Based on the facts known to the officer without regard to the underlying intent or motivation
4.) Based on the knowledge the officer acted properly under established law at the time
In order for an officer’s use of force to be deemed “objectively reasonable,” his/her force response (“what” and “how”) must be reasonably balanced with the governmental interests at stake (“why”). The officer’s force response level (quantum) can be measured by evaluating:
1.) “what” force option was used, and
2.) “how” it was used.
Another way of viewing this would be to ask the question, “What was the reasonable expectation of injury?”
In Graham, the SCOTUS gave law enforcement several factors to examine when evaluating the “why” of an officer’s force option including, but not limited to:
1.) the severity of crime at issue,
2.) the threat of the suspect, and
3.) the level of resistance offered by the suspect.
“Objectively reasonable” is the true — and most accurate — legal standard when both teaching use of force, and/or evaluating an officer’s past use of force. Using any other standard is avoidably dangerous because it is a false legal standard and can be easily misinterpreted or misrepresented — either knowingly or not.