How reasonable is the reasonable man?: police and excessive force.

• Author: Alpert, Geoffrey P.

The authority of the police to use force represents one of the most misunderstood powers granted to representatives of government. Police officers are authorized to use both psychological and physical force to apprehend criminals and solve crimes.(1) This Article focuses on issues of physical force. After a brief introduction and a review of current legal issues in the use of force, this Article presents an assessment of current police policy development. After establishing the fundamental foundation for the use of force, the Article discusses 'reasonableness' and the unrealistic expectation which is placed on police to understand, interpret, and follow vague 'reasonableness' guidelines. Until the expectations and limitations on the use of force are clarified, in behavioral terms, police officers will be required to adhere to the vague standards of the "reasonable person."

1. INTRODUCTION

The United States Civil Rights Commission reviewed police use of force in the early 1980s and reported:

Police officers possess awesome powers. They perform their duties

under hazardous conditions and with the vigilant public eye upon them.

Police officers are permitted only a margin of error in judgment under

conditions that impose high degrees of physical and mental stress.

Their general responsibility to preserve peace and enforce the law carries

with it the power to arrest and to use force--even deadly force.(2) The Commission Report discussed the need for scrutiny of the police and the need for reform.(3) Unfortunately, no one attempted to define excessive force or explain situations that went beyond the necessary force needed to achieve the police mission.

This lack of definition has created an unfortunate situation for both the police and the public. One possible consequence of this deficiency is the lack of national and state-wide statistics on police use of force or excessive force. The shortage of comprehensive statistical information on police use of force has been explained by police officials:(4)

[A]gencies did not require reports of their use [of force] from their

officers. The categories of force for which such reporting as most likely

to be mandated were those with the most potential for death or serious

bodily harm, such as shootings.... A majority of the agencies within

each type reported that they reviewed all use of force reports. The remaining

departments either reviewed selected reports or reported that

they did not review these reports at all.

One of the best estimates of excessive force incidents was reported in a Gallup poll taken in March, 1991. The critical question asked to a sample of citizens was: "Have you ever been physically mistreated or abused by the police?" Some members of the sample may have interpreted "mistreated or abused" as a perilous attack, and, as a result, responded in the negative, even if they felt that they had been psychologically mistreated or abused, but not violently attacked. Incredibly, 5% of all respondents and 9% of non-whites said that they had been mistreated or abused by police. When asked if the respondent knew anyone who had been physically mistreated or abused by the police, 20% said that they did.(5) Estimates of excessive force from observational studies range from 1.05% to 5.1% of citizen contacts.(6) Amazingly, several studies revealed that one-third of all use of force incidents could be classified as excessive.(7) There is no doubt that police use physical force and that it is frequently perceived as excessive. Understandably, however, the police claim that excessive force is employed less often than observers or citizens report.8 The targets of police abuse are almost always lower class males, and the most common factor associated with abuse is disrespect shown to the police by these suspects.(9)

2. THE LEGAL "STANDARD"

   Prior to 1989, most federal circuits followed the Fourteenth Amendment substantive due process "shocking to the conscience" standard enunciated by the Second Circuit in Johnson v. Glick.(10) Under Johnson, the subjective mental state of the offending officer was relevant as a factor to help determine if an actionable injury had occurred.(11) As a result, ambiguity existed in police misconduct cases regarding the standard of evaluation for claims of excessive force. With the United States Supreme Court's 1989 decision in Graham v. Connor,(12) the significance of that intent gave way to the "objective reasonableness" standard of the Fourth Amendment in cases where "seizures" are deemed to have occurred.(13)

   One of the obvious problems created by a reasonableness standard is determining the appropriate level of reasonableness. Research results have indicated that police officers, especially street officers, are able to assess what is good police work and when force is excessive.(14) This may explain why most accusations of excessive force are denied at the department level. Of course, it may also be that police officers band together, close ranks, and protect their fellow officers against accusations of excessive force.(15) In any case, it is not the police officer who will ultimately determine the reasonableness of another police officer's actions, as police officers will rarely be seated on a jury in a police misconduct case. Reasonableness may have several levels and several audiences. It is, however, the assessment of force by the civilian "reasonable person" that matters. And force may involve hands, batons, or other weapons if used appropriately and according to policy and training.(16)

   Police officers may justifiably escalate the use of force against a suspect--beginning with mere presence or verbal and visual commands, and concluding, if necessary, with the use of deadly force--in direct relation to the reason for which they must apprehend that suspect. To determine whether that force was justified, courts must analyze its necessity and reasonableness.(17) It is precisely these terms that must be defined and understood. A definition of permissible and impermissible (excessive) force must be situationally appropriate, rather than academically or judicially strained. Current legal efforts to define the extent of officer qualified immunity serves as a starting point in the present effort to delineate reasonable standards of officer behavior in situations involving the use of force.

   Since its 1987 decision in Anderson v. Creighton,(18) the United States Supreme Court has provided immunity from personal liability to officers whose actions, although resulting in otherwise actionable injury, did not violate "clearly established" law. The essential issue after Anderson, however, has been what the clearly established law was at the time of the officer's actions. At first blush, the Anderson standard seems easy to apply. Judicial guidance could be the ultimate test of the objectivity of police conduct. In practice, however, the rule has been subjectively and inconsistently applied. The lower federal courts are split on the question of whether an officer who uses force which has been determined, after the fact, to be excessive can assert an objective good faith as a defense and avoid personal liability. The Tenth Circuit, in Street v. Parham, rejected good faith as a defense and stated that no officer could "reasonably believe that the use of unreasonable force did not violate clearly established law."(19) Other courts, however, have held that even if the force used was excessive, good faith immunity may still be available.(20) These divergent views raise a troublesome tautological question: If the legal issue is whether the officer's behavior was reasonable, so that qualified immunity may apply, can officers ever conclude that their behavior was reasonable if a court later concludes that it was not? Similar issues include whether the result of prior trials--which may have been largely fault driven--provide any guidance for similar officer behavior in other contexts (i.e., whether behavior deemed reasonable in one context would be deemed reasonable in similar settings, and whether behavior for which there has been no clearly established judicial precedent can be so "obviously" reasonable or unreasonable as to render the question of good faith moot in a particular context).(21)

   All that can be gleaned from available guidance is that police behavior must be reasonable in the given situation. Unfortunately, the focus of the present analysis is after the fact of occurrence; a judicial model. From the operational and risk management perspective, however, control of police excessive force requires front-end identification of acceptable standards of behavior. The terms "force necessary" and "reasonable" need to be defined.

   The reasonableness of officers' actions may be subsequently assessed by their co-workers, their superiors, a civilian review panel, or a jury. Police officers and supervisors rely upon their backgrounds, experiences, and biases to determine the reasonableness of force used by fellow officers. Similarly, members of civilian review panels may seek input from other community members or may respond to their perception of public opinion. However, if a claim of excessive force goes beyond an internal police investigation or civilian review, a civilian jury may likely be assisted by expert witnesses(22) who provide testimony concerning the appropriateness of police action according to currently accepted police practices and training.

   Expert witnesses frequently help jurors to evaluate the reasonableness of a police officer's actions. The appeal of expert testimony, even on a post hoc basis, is that it involves an assessment of the situational conduct of the police by a person who can analyze the police actions in their appropriate context.23 The jury has the benefit of hearing both sides of the story and their interpretations by "experts." How the jurors interpret the information raises a variety of questions based on...