Needed: An Unchanging Standard for Objective Reasonableness

by Terry Bratton and Jim Conley
By Terry Bratton and   Jim Conley The term “objectively reasonable” is founded in the court case Graham v. Conner (1989), which requires that actions taken by law-enforcement officers must be “objectively reasonable in light of the facts and circumstances confronting them [the officers].” Those factors include but are not necessarily limited to “an allowance for time available to make decisions inasmuch as officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.” Reasonableness “is judged,” according to the same court case, “from the perspective of a reasonable officer on the scene” who does not benefit from the “20/20 vision of hindsight.” Under the standard spelled out in Graham v. Conner, U.S. courts have demonstrated an understanding of the difficulty officers have: (a) in use-of-force situations (here, court rulings have explained that incidents that officers are involved in are fluid); and (b) with split-second-change decisions, which are difficult at best. In other decisions, courts have found that the standard of “reasonableness” should encompass the balance between an officer’s safety and the Constitutional rights of suspects. Although homeland-security requirements have an impact on everyday police work at all levels, they have not changed the requirement for objective reasonableness. Two high-profile cases last year – the shooting of Jean Charles de Menezes in London in the wake of the London Transport bombings, and the arrest of Rigoberto Alpizar in Miami by sky marshals – illustrate not only the importance of training law-enforcement officers in the use of reasonable force but also the need for unshakable support from law-enforcement supervisors and agencies when an officer is involved in a similar type of incident. Realistic Training for Real-Life Scenarios That support consists of much more than encouraging words. Administrators also must ensure that their officers are trained in current police tactics and procedures. The training provided should be both scenario-based and realistic. It should cover all aspects of use-of-force situations, ranging from “command presence” to “deadly force.” Although law-enforcement officers involved in real-life incidents U.S. courts have found that “reasonableness” should encompass the balance between an officer’s safety and the Constitutional rights of suspects. frequently are forced to rely on minimal information, training gives them the foundation of factual information and practical experience they almost always will need during future high-stress and/or fluid situations. Because officers in such situations must react to the threat presented by the suspect – as demonstrated, for example, by the subject’s body language, demeanor, and lack of compliance, as well as by the apparent threat level – practical scenario-based training will give them an instinctive reaction base that will come into play during an actual law-enforcement incident. When officers respond in accordance with the requirements mandated not only by case law as well as both state and/or federal laws, but also by departmental policies and procedures, it is imperative that the officers be fully supported in post-incident litigation by their agencies and supervisors. That support should not and must not yield in the face either of adverse media coverage or of various types of political pressure that might be brought to bear by local, state, or federal government officials – or, for that matter, to emotional public reactions, which of course may change both suddenly and frequently over a period of time. A Guiding Principle for Unyielding Support Educating the public, and the media, on the complex problems involved in use-of-force scenarios is imperative for administrators today. The public often views such scenarios from the perspective of a “minimal-force” standard. Thanks to numerous out-of-context film and television plots depicting alleged “police brutality” many citizens believe that officers are required to use minimum force at all times in apprehending and arresting a criminal suspect – but those same citizens do not always realize that the minimum-force level cannot be measured in absolute terms but will vary considerably from time to time, depending on not only the behavior of the suspect but also on other circumstances not always visible on the screen – the presence of an angry mob, for example. Clearly, the education of the public on such matters should not be left up to television and movie reporters and producers. The explanation of objective reasonableness, as opposed to minimal force, should come from the leaders of law-enforcement agencies. The educational process used should be both ongoing and “up front,” and should encompass all of the media outlets in the community. Following such a proactive approach will take both patience and time. But it will make not only law-enforcement officers but also the public at large feel more comfortable and confident. Law-enforcement leaders are asked, and expected, to stand behind their officers, their decisions, and the policies followed by their agencies when use-of-force incidents occur and proper – i.e., objectively reasonable – procedures have been followed by the officers involved. However, during civil litigation – which may be as much as four or five years later – the public might well view the scenario differently. In such situations, the result, quite frequently, is the creation of pressures that cause city and department administrators and attorneys to look for ways to compromise – often, unfortunately, at the expense of the officers involved in the incident. In other words, the officials give in to what is called “bad publicity,” disregarding the emotional, physical, and sometimes even the financial well being of officers they previously applauded as having done a “good job.” What should be their real guiding principle, though, is simply stated and should always be followed:  If the officer’s actions were objectively reasonable yesterday, they are objectively reasonable today, and will be tomorrow._______________________________________Terry Bratton has been a Houston police officer for 30 years; Jim Conley, his partner for those 30 years, has been a Houston police officer for over 36 years. They conduct tactical training together for Houston Police Department cadets and veteran officers. They also have instructed at the FBI Academy and elsewhere throughout the United States, training officers from various state, federal, and local agencies. They also have trained officers in El Salvador. Both of them are recognized as expert witnesses in state and federal court in all areas of use of force for law enforcement.