The Judicial Theory of a Reasonable Public Servant

• DOI: http://doi.org/10.1111/j.1540-6210.2004.00389.x
• Date: 01 July 2004
• Author: Yong S. Lee
• Published date: 01 July 2004

The Judicial Theory of a Reasonable Public Servant 425

Yong S. Lee

Iowa State University

The Judicial Theory of a Reasonable

Public Servant

Contemporary theory of the constitutionally reasonable public servant, established by the U.S.

Supreme Court in 1982 in

Harlow v. Fitzgerald

, is measured in reference to clearly established

constitutional or statutory rights that a reasonable person would have known. In this article, the

author seeks to elucidate the evolving contours of the objective reasonableness standard and

examines how federal courts have applied it. To gain a firsthand impression of how public officials

challenged in federal courts are measuring up to the objective reasonableness standard, the au-

thor provides a snapshot of 449 recent court cases selected from two federal circuits, the Eighth

and the District of Columbia circuits. He concludes that public officials in these two circuits have

fared very well under the standard of objective reasonableness. The flip side is that aggrieved

individual citizens must carry a heavy burden to protect their constitutional rights.

Historically, the courts of common law in the United

States have been in search of a standard for the “reason-

able” public servant. This search has intensified recently

as courts have been asked to determine whether certain

public officials acted reasonably—in a constitutional

sense—when accused of abusing their powers under color

of law. If the officials are found to have acted objectively

unreasonably—that is, by violating clearly established

statutory or constitutional rights that a reasonable person

would know—the courts will have them stand trial for civil

damages liability. On the other hand, if the public officials

are found to have acted objectively reasonably—that is,

even if they violated rights, they did not violate the law

(the existing law or legal rules) because the rights in ques-

tion were not clearly established at the time of the viola-

tion—the courts will shield the officials from trial on the

grounds of qualified immunity. Stated simply, the theory

of the constitutionally reasonable public servant is predi-

cated on whether the public official, if challenged in court,

would pass the test of “objective reasonableness.”

Certainly, a public official in a democratic republic is,

and should be, more than a law-abiding official. As an agent

of the sovereign, the public servant must use his or her

discretionary authority to advance other democratic val-

ues, including the public interest, citizenship, compassion,

and social equity (Herring 1936; Redford 1969; Jabbra and

Dwivedi 1988; Ingraham and Rosenbloom 1989; Burke

1989; Frederickson 1990, 1997; T. Cooper 1998). What

the courts have accomplished with the doctrine of objec-

tive reasonableness is to establish the minimum legal stan-

dard for constitutional responsibility in the public service.

The objectives of this study are to elucidate the evolv-

ing contours of the contemporary standard of objective rea-

sonableness and to examine how federal courts have ap-

plied it. Unfortunately, no empirical data exist at present

to probe this topic beyond the abstract. To gain an impres-

sion of how public officials challenged in courtrooms are

measuring up to the contemporary reasonableness stan-

dard, this study offers a snapshot of 449 recent court cases

selected from two federal circuits, the Eighth and the Dis-

trict of Columbia circuits. The study concludes by explor-

ing the implications of this “new” standard for the educa-

tion and training of public officials and by noting concerns

about the reasonableness of this standard.

The Concept of Objective Reasonableness

The concept of objective reasonableness grew out of

the common law of sovereign immunity historically ex-

tended to public officials in one form or another (Keeton

et al. 1984; Spalding v. Vilas, 11 U.S. 483 [1896]; Ex Parte

Yong S. Lee is a professor of public policy and administration and director of

the Institute of Science and Society at Iowa State University. His research

focuses on the legal aspects of public management. He also conducts re-

search on science policy. He has published widely in public administration

journals. E-mail: yonglee@iastate.edu.