Cracking Graham: Police Department Policy and Excessive Force
Berkeley Journal of African-American Law & Policy, Forthcoming
29 Pages Posted: 27 Jun 2018 Last revised: 28 Oct 2018
Date Written: April 17, 2018
When a police officer uses force against a person, the Fourth Amendment requires that the force be “objectively reasonable” under the circumstances. Under this standard, is it relevant whether an officer complied — or did not comply — with his or her department’s use of force policy? The federal circuit courts of appeal are split. A slim plurality of circuits holds that an officer’s compliance or non-compliance with individual departmental use of force policy is relevant to excessive force claims. The minority of circuits disagree. To further complicate matters, within each side of the split courts often have divergent reasons for reaching the same conclusion.
This Comment examines both sides of the circuit split before concluding that the minority position is correct: police department policy has no bearing on objective reasonableness under the Fourth Amendment. This conclusion is supported by two independent arguments. First, this Comment demonstrates that — contrary to the plurality’s position — Supreme Court precedent precludes the consideration of police department policy. It advances this claim not only from Fourth Amendment law specifically, but also based on the application of broader separation of powers principles. Second, this Comment outlines powerful practical considerations that caution against allowing police department policy to creep into excessive force law. These practical concerns resolve any lingering ambiguity in the case law in favor of police department policy’s constitutional irrelevancy.
Keywords: Use of Force, Excessive Force, Fourth Amendment, Graham v. Connor, Policing
Suggested Citation: Suggested Citation