What would a reasonable observer say?

Photographer: Chip Somodevilla/Getty Images

Justices Put Check on Police in Ferguson Era

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What determines whether the police have used excessive force on a detainee: the officers’ beliefs about their own actions or the assessment of a reasonable observer? It’s hard to imagine a more important question after the events of the past year in Ferguson, North Charleston and Staten Island -- and on Monday the U.S. Supreme Court held in favor of the objective observer, not the subjective mindset of the officers.

The decision was 5-4, with Justice Anthony Kennedy providing the deciding vote. The decision in its way encapsulates the experience we’ve all had watching video of arrests and detentions. In essence, the court held in favor of our collective civilian judgment of what happened in those cases, not the often extremely different perception of the police.

It’s important to clarify what was at stake legally. The case involved a suit brought under 42 U.S.C. section 1983, a civil-rights statute so famous it’s known to lawyers simply as “1983.” The law enables an individual whose constitutional rights have been violated to sue the government actor who violated them. Thus, the decision required the court to interpret the meaning of the most basic constitutional rights. The right in question here is a due process right under the 14th Amendment -- here interpreted to include a right against the use of excessive force.

The facts are also relevant. The case arose when Michael Kingsley was detained in a county jail in Wisconsin before trial. He’d taped a piece of paper to the light fixture in his cell, and repeatedly refused to remove it. Four officers then handcuffed Kingsley and carried him into a receiving cell, where they placed him face down on a concrete bunk.

A sergeant then put his knee on Kingsley’s back. As the court delicately put it, “Kingsley told him in impolite language to get off.” Kingsley alleged that the police then slammed his head into the concrete bunk; the police deny it. Both agree, however, that the officers then used a Taser to stun the prone Kingsley for five seconds and left him lying there for 15 minutes.

Because Kingsley was in jail, it’s conceivable that the precedent of the case could be limited to detainees who are already in custody. Technically, then, the facts are arguably distinct from the cases in which we’ve watched on video as police attempted to subdue suspects and killed them in the process. But the legal principle could also be interpreted as applying once someone has been arrested -- because the arrestee is then being detained. Regardless, the case must be understood symbolically and politically in the light of these recent outrages.

The legal question before the court was simple: How should a trial court determine whether the officers used constitutionally excessive force? American lawyers like to distinguish between two kinds of legal standards, which for convenience they call “subjective” and “objective.” A subjective standard is one that asks about the actual intention of the person who performed the action.

In criminal cases, this subjective inquiry is standard. Most of the time, we want to convict people when they know they’ve done something morally wrong.

In civil cases, however, the objective approach is more common. An “objective” inquiry imagines a reasonable person and asks what he or she would have done under the circumstances. Thus, for example, we typically deem someone who commits an injury to be liable for negligence if a reasonable person would’ve thought the injurer’s actions were negligent.

The crucial issue in this case was whether to apply a subjective standard to the 14th Amendment violation, asking if the police intended to use excessive force, or an objective standard, asking if reasonable observer would view it as excessive.

Justice Stephen Breyer, who wrote the majority opinion, said the test should be the reasonable observer. He said an objective test is “workable” and sufficient to protect an officer who acts in good faith.

Justice Antonin Scalia, in dissent, disagreed. He pointed out that the legal standard for excessive force during pretrial detention is whether the prisoner was subjected to punishment. And he argued that “punishment” required some degree of intent. “It is illogical,” he said, with emphasis, “automatically to infer punitive intent from the fact that a prison guard used more force against a pretrial detainee than was necessary. That could easily have been the result of a misjudgment.”

What’s remarkable about the decision isn’t the 5-4 split, or even Kennedy’s choice to side with the liberals. It’s how closely the legal question tracks our public collective experience over the past year. Each time we’ve seen police using force on a suspect, it’s been at least conceivable that the police, given their mindset, didn’t subjectively think the force was excessive. But to us, outside observers who consider ourselves reasonable, the force has seemed extremely excessive in each of the publicized cases.

The difference, of course, is that we aren’t cops. The police, like other insulated institutional actors, developed their own internal compass with respect to what’s the right amount of force and what’s excessive.

Scalia’s proposed test would require the legal system to defer to the police -- essentially making a constitutional standard whatever the cops think it should be.

Breyer’s decision is right because it gives the public -- in the form of the jury -- the responsibility to specify the meaning of excessive force. If applied broadly, the judgment should have a good effect of making all of us take responsibility for the police’s use of force. In a democracy, we should demand nothing less.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net