Determining the Perspective of a Reasonable Police Officer: An Evidence-Based Proposal

Abstract

Excessive force jurisprudence in America is in disarray. Although the Supreme Court mandated over thirty years ago that courts determine the constitutionality of allegedly excessive force from the perspective of a reasonable officer on the scene, courts have never seemed more confused about how to make that determination. Without any definitive guidance on what evidence to consider in determining how a reasonable officer on the scene of an incident of allegedly excessive force would have behaved, courts are issuing haphazard, inconsistent decisions that are often difficult to reconcile with basic evidentiary principles. Unfortunately, the prevailing approach to determining the perspective of a reasonable police officer — which has been reinforced by the Supreme Court’s excessive force decisions over the past decade—is to blindly defer to police officers accused of using excessive force, ignore the distinctions between reasonable police officers and ordinary reasonable persons, engage in rank speculation about what a reasonable officer would (or would not) have done under the circumstances, and ignore evidence that is relevant to assessing the perspective of a reasonable officer on the scene. This approach, which has resulted in an incoherent hodgepodge of pro-police excessive force decisions, undermines public confidence in the ability of the justice system to address police behavior that is unconstitutional. That confidence is particularly fragile in the wake of the killing of George Floyd by Minneapolis police officer Derek Chauvin and the other incidents of lethal force by American law enforcement officers that sparked protests against police brutality throughout the United States during the summer of 2020.

Rather than advocate for an overhaul of the Supreme Court’s “reasonable officer on the scene” standard for determining whether force is excessive, this Article argues that the credibility of excessive force jurisprudence can be restored by injecting a consistent dose of evidentiary rigor into excessive force decisions. To that end, this Article proposes an evidentiary road map for courts to follow in determining the perspective of a reasonable officer on the scene of an incident of allegedly excessive force. By isolating and focusing on the characteristics of the law enforcement experience which meaningfully distinguish it from the experience of ordinary civilians, this Article contends that in order to meaningfully determine whether a police officer accused of excessive force acted reasonably under the circumstances, courts must consider (1) the officer’s training and the extent to which he adhered to or deviated from that training during the incident in question, (2) the officer’s experience in the law enforcement profession, and (3) the extent to which the officer complied with or violated department rules applicable to his use of force under the circumstances. While this evidence is not dispositive of the reasonable-officer determination, it defies logic and a reasonable construction of the rules of evidence and civil procedure for courts to deem such evidence irrelevant in making that determination.

Keywords: Fourth Amendment, Excessive Force, Qualified Immunity, Reasonable Officer, Law Enforcement