When is it appropriate to criminally punish police officers who kill in the line of duty? This question—central to the decision this week of a Cuyahoga County grand jury not to indict the police officers involved in the death of 12-year-old Tamir Rice—has become increasingly important over the past two years, as public scrutiny of law enforcement tactics has intensified. The problem is legal experts can’t seem to agree on how it should be answered.
The prosecutor in the Rice case, Timothy McGinty, explained the grand jury’s decision—and his own belief that criminal charges were inappropriate—by bringing up something known as the “reasonableness test.” That legal standard for judging police use of force was established by a 1989 Supreme Court decision called Graham v. Connor, and has been applied ever since in discussions about what it means for a police killing to be justified or not.
“The Supreme Court instructs us to judge an officer’s conduct by what he or she knew at the moment—not by what was learned later,” McGinty said. “We are instructed to ask what a reasonable police officer with the knowledge he had would do in this particular situation.”
It was only the latest instance of the reasonableness test coming into play for a criminal proceeding into police use of force. Earlier this month, Cook County state’s attorney Anita Alvarez brought up the reasonableness test while explaining the non-indictment of the police officer who shot Ronald Johnson III in Chicago. In August, a criminal trial in Charlotte ended in a mistrial after both the defense and the prosecution told jurors their job was to decide whether officer Randall Kerrick’s decision to shoot unarmed former Florida A&M football player Jonathan Ferrell was reasonable.
But in the wake of all this debate over reasonableness, some legal experts have asked a crucial and bedeviling question: Should the Graham test even be relevant in these criminal cases? After all, they point out, the “reasonableness test” was geared toward determining whether actions by officers were unconstitutional, whereas the central issue in criminal investigations—like the one McGinty presided over in Cuyahoga County—is whether any criminal laws have been broken. Those are separate things, the argument goes, and it is wrong to conflate them.
To get some clarity on what the legal standard actually should be to determine when to prosecute police officers who kill in the line of duty—and whether or not authorities are actually using that standard—I spoke with University of South Carolina School of Law assistant professor Seth Stoughton. The former police officer studies these complex but important issues and is extremely good at explaining them in simple terms. Below is our conversation, which has been edited and condensed.
Leon Neyfakh: Let’s get your credentials out of the way here: you were a police officer in Florida for five years, and now you are a professor who specializes in police law. What does it mean to specialize in police law? What issues are you looking at?
Seth Stoughton: I study how policing is regulated. I look at both the existence of certain [legal and administrative] rules [governing police behavior], and also the absence of certain rules. So, for example, if there’s something we want police to do, what rules do we have that encourage them to do so? And if there’s something we don’t want police to do, what rules do we have in place that discourage them from doing so? My focus tends to be on police-community relations, and the use of force.
OK. So, there’s a word that’s come up over and over again during the past year and a half or so in connection with these situations. That word is ‘reasonable,’ as in, ‘Did the officer act reasonably?’ Why is reasonableness an important concept when it comes to police use of force?
Criminal law punishes culpable behavior, which means that someone’s actions and their mental intent—what the criminal law calls mens rea—have to rise to a certain level of culpability for something to be criminalized. With relatively few exceptions, we do not criminally punish behavior that we consider “reasonable.” If someone’s actions were reasonable, those actions are, generally, not criminal. To use a very simplified example: If I kill someone, that’s generally criminal. But if I do so in self-defense, and it’s reasonable, then that homicide, that killing, is not criminally punishable.
Graham v Connor is a 1989 decision premised on the idea that when a police officer uses force, it’s a form of seizure, and thus subject to the 4th Amendment’s protection against unreasonable searches and seizures. The Graham decision established a rule saying that in order to determine whether a police officer’s use of force was constitutional or not, you have to ask how a reasonable officer on the scene might have dealt with it.
That’s right. Graham v Connor was a civil lawsuit against an officer who used force. The Supreme Court developed a rule and suggested a set of factors that courts would look to in order to determine whether a particular use of force violated the 4th Amendment, which protects against unreasonable searches and seizures.
So the Supreme Court ruling in Graham, which came out of a civil case, established the reasonableness test in a constitutional context, but that doesn’t necessarily mean it applies in a criminal context?
That’s right.
So there is an argument to be made, then, that the reasonableness test established by Graham is not relevant when, say, a state prosecutor is trying to determine whether a police officer should be indicted for using deadly force.
Yes. We’re talking about different levels of law: federal constitutional law as opposed to state criminal law. There is no legal reason why any state would have to incorporate the Graham constitutional civil test in the context of state criminal law.
Formally, the Graham standard really has nothing to do with criminal law at all. A state can criminalize constitutional conduct. Even if it was perfectly constitutional under the 4th Amendment, under Graham, for an officer to use force in a particular circumstance, a state could—though I’m not aware of any that do—still criminalize that use of force.
Why?
Because the Constitution protects the public’s right to be free of unreasonable force, not the officer’s right to use reasonable force.
Got it—so theoretically state lawmakers could decide that the Constitution doesn’t go far enough in limiting police use of force. Could they decide that it goes too far?
State law can’t authorize officers to go beyond the constitutional limits. [That said], they don’t have to criminally punish actions that go beyond the constitutional limits, either. Just like states could criminalize constitutional conduct, they are not required to criminalize unconstitutional conduct. The constitutional/non-constitutional and criminal/non-criminal lines are totally distinct here.
OK. So all that said, why does the constitutional standard established in Graham come up so often when state prosecutors, defense lawyers, and judges are discussing whether a police officer’s use of force constitutes a crime? In the report that McGinty’s office issued on Tamir Rice the other day, it’s Graham all the way down. Why?
Courts and prosecutors have both—sometimes very casually—imported the Graham standard into the criminal law. Although it’s not formally part of the criminal law, a lot of courts and a lot of prosecutors analyze an officer’s use of force and determine whether it is criminal by subjecting it to the Graham test.
So they use Graham almost by default.
That’s correct. Courts and prosecutors both tend to import the standard without really thinking about it.
Why do they do that?
The simple answer—as simple as it gets, anyway—is that determining whether an officer’s use of force was reasonable or unreasonable in a criminal sense is difficult, and Graham offers the only way that a court—particularly the Supreme Court—has articulated for how to do that analysis.
So it’s the best thing they have.
That’s exactly right. It’s not a matter of laziness, exactly—it’s a matter of there not being any other clear test to apply.
Why is this considered OK? Why doesn’t each state have an established criminal standard for police use of force?
Well, here we get into more confusion, because there’s something called the “official duty rule.”
What is that?
Let’s try to break it into as many small pieces as we can. When someone uses violence on another person, that is generally a crime, like battery, assault, murder, or manslaughter. But there are certain exceptions. Self-defense is an exception— everyone’s familiar with the idea of self-defense. There is also an exception for police officers, known in most states as the “official duty rule,” which says that an officer who is acting in their official capacity, fulfilling their official duties, making legitimate use of their police authority, is not punishable for actions that would otherwise be criminal. So, think of it this way: If I, as a civilian, go out and grab someone, stick them in handcuffs, and haul them away, I’m committing a kidnapping. Police officers are allowed to do that, at least when they have probable cause, because of the official duty exception. The official duty exception is pretty important because we couldn’t have police officers without it.
Got it.
So, when you have an action that’s generally considered a crime—maybe putting handcuffs on someone, or using force on someone—we have this official duty exception, which requires you to ask: Was the officer legitimately exercising his official authority? And to answer that question, many prosecutors and courts turn to the Graham rule as a shortcut. Often, this has not been formalized—it’s just the practice.
So, to go back to what we were saying earlier, is it conceivable that a state could pass a law that established its own criminal standard for police use of force? One that didn’t depend in any way on Graham?
Absolutely. Or if a state wanted to prohibit the use of a Taser—if they wanted to say it should be a crime for everyone, including police officers, to use a Taser, or a baton, they could do that. And after that law went into effect, an officer’s use of a Taser or a baton would be a crime.
Even if it was constitutional.
Right—even if it satisfied the Graham test.
So, in the absence of such state laws—criminal statutes that specifically address police use of force—we see prosecutors and judges turn to the civil standard established in Graham by default.
That’s right. Even in the absence of formal legal reasons to do so, they often turn to the civil standard by default.
Is this something people should be worried about? Is it fine that it works this way?
I think we should certainly be aware of it. The conflation of two legal standards from two different areas of law is a really important policy decision, and it’s the type of policy decision that we generally expect the public to make through its elected representatives.
And instead we have prosecutors and judges deciding that Graham is the standard they’re going to use.
Yes, they’re making that policy decision and putting it into practice, because frankly it’s a little arcane for most of the public to fully understand. So just being aware is important. And once the public is aware, we can have a conversation about whether the Graham standard is appropriate in the criminal context or not. But right now we’re not even having that conversation because we’ve imported it into the criminal law as a matter of course.
Meanwhile, the Graham standard is pretty vague and confusing! So is the upshot here that we’re taking for granted that we’re stuck dealing with that confusion when in fact states could solve the problem by passing criminal laws that specifically address use of force by police?
That’s right. There is no reason why we have to, as a legal matter, rely on the Graham standard in the criminal law context. The states could replace it. We don’t need to wait for the Supreme Court to act if society believes it is an inappropriate standard.
