What’s ‘Reasonable’ When Cops Use Force?

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Photo by Victoria Kalagina via Flickr

In August 2008, police were called to a San Francisco group home after a social worker reported a resident was acting dangerously, in a threat to herself and others.

When the officers arrived, the resident, Teresa Sheehan, threatened them with a knife—forcing the officers to retreat. Fearing that Sheehan would try to flee, they reentered her room and shot her 14 times after their efforts to disarm her with pepper spray failed.

Sheehan survived and brought suit against the officers, charging them with using excessive force. The officers responded that, considering the circumstances, their actions were reasonable.

Seven years later, the Supreme Court said they were right.

In a 6-2 ruling, the justices rejected evidence suggesting that the officers acted contrary to their training, concluding they “had sufficient reason to believe that their conduct was justified…considering the specific situation confronting them.”

The ruling added: “Even if an officer acts contrary to her training…that does not itself negate qualified immunity.”

According to an essay in the Villanova Law Review, that 2015 judgment, combined with similar High Court rulings, helps to explain why so few U.S. police officers are ever held liable in cases involving the use of force against civilians.

Police critics have been lobbying to eliminate the doctrine of “qualified immunity” –which shields government officials, including law enforcement agents, from civil lawsuits triggered by behavior conducted in “reasonable” performance of their duties.

But Mitch Zanoff, the author of the Villanova essay, argues that the deeper problem is the systematic failure of judges to analyze what constitutes “responsible” behavior by a police officer.

In the City and County of San Francisco v. Sheehan ruling, he argued that the Court’s decision to set aside officers’ training in judging whether or not their actions were “responsible” is one of many that have undermined an earlier Supreme Court decision on how and when police officers can be held accountable for excessive use of force.

That 1989 ruling, Graham v. Connor, established a standard that the reasonableness of the use of force “must be judged from the perspective of a reasonable officer on the scene.”

Noting its relevance to the Sheehan case, Zanoff asked, “How could the training received by police officers not be relevant to a determination of what a reasonable police officer would do in a particular situation?”

Yet instead of holding officers to the rules set by their training or their agencies, courts have considered only whether the officers were justified in fearing for their lives—a standard that has resulted in overly deferential decisions favoring police, wrote Zanoff, an associate clinical professor of law and Litigation Program Director at the University of Minnesota Law School.

“Rather than considering all the evidence of how a professional law enforcer might view and react to the situation differently from them, judges and juries too often view the use of force from their own untrained perspectives, with an extra layer of deference to the police because they have a dangerous job,” Zanoff wrote.

The result, he argued, is that the standard established by the Graham ruling has been applied in an “uneven, one-sided manner that usually favors the police.”

Zanoff, a former Assistant U.S. Attorney in Philadelphia, wrote that court rulings—and jury verdicts—since Graham have “myopically” focused on just one aspect of cases that involve deaths by civilians at the hands of police.

“A thorough survey of excessive force decisions since Graham reflects that many courts are myopically focusing on only one aspect of policing— its dangerousness—rather than the training, experience, and standards of professional conduct that make police officers better able than civilians to deal with that danger without using excessive force,” he wrote.

He noted that too often the behavior of police officers is judged according to what a civilian might interpret as a threatening situation that requires a “split-second” judgement and should therefore not be second-guessed.

However, law enforcement professionals receive thousands of hours of specific training in how and when to use force in a given situation—so their actions should be assessed according to that higher standard, Zanoff argued.

“The reasonable officer standard should require judges to do more than merely imagine what a reasonable police officer would have done to determine if a particular use of force was excessive,” he wrote.

“Just as courts must not use their imaginations to characterize reasonable uses of force as excessive, they also must not use their imaginations to justify excessive force that a reasonable officer on the scene would not have used under the circumstances.

“But courts do so all the time.”

He added, “It is confounding that these judges believe they can somehow divine the perspective of a reasonable officer on the scene without considering such evidence (of training).”

Zanoff pointed, for instance, to statistics indicating that the more experience and training officers receive, the less likely they were to use force to control a difficult or tense situation.

Civilians with no police background—including judges and juries—should not be given free reign to assess police responses according to how they might react in a life-threatening situation, Zanoff wrote.

“Police officers do not act in a vacuum,” he wrote. “They are not just dropped on the street and told to do the right thing.”

Noting that efforts to remove the “qualified immunity” defense through legislative action were unlikely to overcome the opposition of Senate Republicans and their allies in law enforcement, Zanoff argued that it was more practical to establish clear guidelines on what evidence to consider in excessive force cases.

He proposed what he called an “evidentiary road map” that would require judges and juries to consider three basic questions in an excessive force case:

      • The extent to which an officer adhered to or deviated from training in the response to a given situation;
      • The officer’s experience;
      • The extent to which the officer complied with, or violated, department rules on use of force in the given situation.

Zanoff said using those guidelines would go a long way towards restoring public confidence in police, as well as providing a degree of predictability for officers and their agencies in the effort to balance the goals of protecting public safety with protecting civilians against the excessive use of force.

“Even where there is no clearly applicable training protocol or agency rule, excessive force determination will be more credible and sustainable where the record is clear that the court searched for this type of evidence before engaging in the more speculative assessment of police reasonableness,” he maintained.

The full paper, “Determining the Perspective of a Reasonable Police Officer,” can be downloaded here.

More details about the case of Teresa Sheehan are available here.

One thought on “What’s ‘Reasonable’ When Cops Use Force?

  1. Where do officers receive thousands of hours of use of force training? Most get a bit in academy, then a few hours a year after that. Also, San Francisco officers do not have tasers because of a really stupid city government. So the only response they have to knives is leave or shoot.

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