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What looks like excessive force to you and me might not to a judge—and she’s got the final say

Why, with all the national attention on the problem, does police brutality in the United States seem to be getting worse instead of better? Why is it so hard to punish police officers who beat, maim, or murder people on the job? Boston area law student Ted Hamilton explains in a must-read analysis for the Boston Globe: it's the so-called "objective reasonableness doctrine," established by the Supreme Court in a 1989 case called Graham v. Connor.

Hamilton:

The so-called Graham test of objective reasonableness was meant to be an easy-to-apply rubric that would relieve courts of the burden of having to guess an officer’s motivation. The court advised judges to consider the “perspective of a reasonable officer on the scene, rather than . . . the 20/20 vision of hindsight.” Many plaintiffs’ lawyers thought the decision would help their clients win cases.

But in the face of unprecedented crime rates, many judges were reluctant to second-guess police on the street. (Even though the number of officers killed in the line of duty has been falling steadily since the 1970s.) In the years following Graham, it quickly became clear that the “perspective of a reasonable officer on the scene” usually saw any amount of force as reasonable. Victims found themselves unable to disprove officers’ arguments that they feared for their safety, and prosecutors were reluctant to bring criminal charges against officers.

And even though, as Hamilton points out, the ten largest US city police departments have paid out over a billion dollars in brutality settlements in just the last five years, civil litigation against police isn't a sure bet, either.

Jennifer Laurin, a professor at the University of Texas School of Law who specializes in police brutality doctrine, thinks that this weakness is built into our existing law. By embracing the objective reasonableness standard, the Graham court was “deliberately . . . putting a thumb on the scale for the official’s perspective,” Laurin says.

This resulted in two major failures of the law, according to Laurin. On the one hand, everyday police force, such as roughly pulling suspects’ hands behind their backs, become invisible to judicial scrutiny — leaving the law powerless to address one of the major causes of tense police-community relations. On the other hand, only officers who knowingly violate a victim’s rights — officers unreasonable enough to know their conduct is unconstitutional and do it anyway — can be found liable.

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