Thirty-one years ago Thursday, citing something “amiss,” cops detained car maintenance worker Dethorne Graham as he rushed out of a convenience store in Charlotte, NC. Graham, a diabetic, had made a quick stop for orange juice when he felt an insulin reaction coming on, but abruptly left the store when he noticed a long line.
Cops detained him about a mile away and he later sued to recover damages for injuries sustained from the officers’ use of physical force, arguing they had violated his Constitutional rights. The case made its way to the United States’ Supreme Court and, even though it didn’t involve a shooting, Graham v. Connor has set the standard for evaluating officers’ use of force to this day.
The high court ruled that an objective reasonableness standard, known as the “Reasonable Person” defense should apply to a civilian's claim that law enforcement officials used excessive force in the course of making an arrest, stop, or other "seizure" of his or her person. In other words, would a reasonable cop have reacted in the same way as the cop did at that time and in that situation? Interpreting that case today, prosecutors find lethal force is justified if an officer’s fear is “reasonable,” even if the imminent threat could have been subdued through less lethal means, or turns out to be misperceived.
As long as an officer's perceptions and reactions can be viewed as common and typical, they are "reasonable," even if they made a bad shoot. So mistakenly thinking that an unarmed person has a gun and shooting him does not constitute a violation of his constitutional rights as long as a reasonable person in the same situation could have made the same mistake.
Proponents of the standard argue it prevents courts from playing so-called “Monday morning quarterback” when assessing a situation with the potential to escalate quickly. But critics say it is applied too liberally and is an overly flexible legal standard that allows jurors to excuse defendants they sympathize with.
How do ordinary judges and jurors use the Reasonable Person test to determine responsibility and liability? And is it time to challenge or reconsider the Reasonable Person standard as it applies to officers’ use of force?
Steve Lurie, 20 year-long LA law enforcement veteran, attorney and adjunct professor of Law at Loyola and Pepperdine law schools
Jody Armour, Roy P. Crocker Professor of Law at the University of Southern California’s Gould School of Law and author of “Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America" (NYU Press)