Cited over 54,000 times and the subject of nearly 1,200 law review articles, [1] one cannot overstate the profound effect of the United States Supreme Court’s decision in Graham v. Connor on American law enforcement.
Often equally praised and maligned, the relatively short decision issued on May 15, 1989, held that the use of force by law enforcement officers (LEOs) must be judged by an objective standard of reasonableness under the Fourth Amendment to the United States Constitution. However, the rationale of that decision, and the statements made during the discussion, still spur controversy 30 years later.
The Excessive Use of Force Behind Graham v. Connor
Graham v. Connor is an excessive force case arising from the detention and release of a suspicious person by city of Charlotte officer M.S. Connor.
On November 12, 1984, diabetic Dethorne Graham asked his friend to drive him to a convenience store so he could purchase some orange juice as he believed he was about to have an insulin reaction. Facing a long line upon entering the store, Graham quickly exited, got back into his friend’s car and asked him to drive to a friend’s house.
Graham’s short stay and rapid exit attracted the attention of city of Charlotte (N.C.) police officer M.S. Connor who stopped the car. He detained Graham and the driver until he could establish that nothing untoward occurred at the convenience store.
During the stop, Graham exited his friend’s car, ran around it and passed out. He was handcuffed and placed onto Connor’s hood. At that point, he came to and pleaded with the officers to get him some sugar. Graham’s friend came to the scene with orange juice, but the officers refused to allow Graham access.
The officers put Graham into a patrol car but released him after an officer confirmed the convenience store was secure.
During the encounter, officers reportedly made comments indicating they believed Graham was drunk and cursed at him. Graham reportedly suffered multiple injuries and sued the city and several officers, including Connor, for violating his constitutional rights.
After the federal trial court granted a directed verdict [2] dismissing all defendants, plaintiff Dethorne Graham appealed to the Federal Fourth Circuit Court of Appeals, which upheld the dismissal. The United States Supreme Court reversed and remanded the case back to the Fourth Circuit for reconsideration of the case under a new standard for interpreting law enforcement use of force that would change the legal landscape.
A Standard to Analyze Police Use of Force
The Graham court focused on “unreasonable seizures” and decided all LE use of force must be examined under the Fourth Amendment not the Eighth Amendment, as the latter required some inquiry into the subjective beliefs of the LEO.
The Fourth Amendment provides, in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” This was consistent with the Court’s holding three years prior in Tennessee v. Garner, which relied primarily on the Fourth Amendment to review a LEO’s use of force on a fleeing suspect.
The Court set out a simple standard for courts to analyze law enforcement use of force. The desired standard would be objective as the Eighth Amendment “cruel and unusual punishment” prohibition necessitated too much focus on the subjective beliefs and intentions of the involved LEOs, which may or may not have had any effect on the outcome of the encounter: [3]
“As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation…An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”
The principle is rather straightforward and generally not controversial. However, the remaining analysis sparked a fire of controversy that continues today.
First, the Court held that the actions of a LEO must be judged from the perspective of a reasonable LEO and not a responsible person. This is significant as most criminal and civil standards incorporate and rely upon a reasonable person or “reasonable man” standard as the law once described it.
Law enforcement critics found the seeds for their discontent in Justice Rehnquist’s rationale for this standard:
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
Justice Rehnquist elaborated on the need to perform an objective analysis of the LEO’s actions that poured accelerant on the flames of controversy. Relying upon Terry v. Ohio, the Court stated:
“Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”
Recognizing this would necessitate a fact-based inquiry, the Court provided this instruction:
The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Finally, the Court unequivocally advised all courts reviewing a LEO’s use of force to consider the imperfect and uncontrolled reality of the environment in which LEOs use force:
“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”
The Graham court retained one key rationale from the now overruled Johnson v. Glick case stating:
“With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ Johnson v. Glick, 481 F.2d, at 1033, violates the Fourth Amendment.”
Graham has long been criticized as dismissing the rights of the subject of LE action. I believe the “reasonable LEO” standard is a thorn in the side of most LE critics who look at videos and apply an untrained, ill-informed analysis to advocate for sanctions against the LEO. Recent critics of Graham have argued that the Supreme Court’s rationale and guidance from this civil case cannot be applied to a criminal analysis of a LEO’s use of force. For those critics, I have a question: How can a reasonable use of force under the Fourth Amendment to the United States Constitution violate a state criminal statute? I have yet to hear a coherent or rational answer.
Graham v. Connor considers the interests of three key stakeholders – the law-abiding public who has a right to move about unrestricted, the government that has a right to enforce its laws, and the LEO who has an obligation to enforce the law and the right to do so without suffering injury. LEOs should know and embrace Graham. Time and again, the United States Supreme Court has demonstrated a clear recognition of the dangers inherent in the LEO’s duties, as well as their role in a peaceful society.
Critics may scream louder than our supporters. Recent efforts in California and other states to change the analysis of a LEO’s use of force to apply a hindsight analysis are prime examples. However, the solid bedrock of Graham v. Connor provides a strong foundation for LEOs doing the work few in society are willing to do.
References
1. A law review article is a scholarly piece typically authored by law professors and law students intended to intensely examine a particularly important decision, area of law, or legal trend.
2. A directed verdict dismisses the case after the Plaintiff’s presentation of evidence.
3. This was essential to the previous test set forth in Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973).