The Supreme Court and Tamir Rice

As anyone who’s spent much time with the United States Reports knows, when judges use the word “reasonable” as a standard to evaluate some kind of state action, it is overwhelmingly likely that the state action is about to be upheld. The Rehnquist Court decisions that have failed to constrain unjustified uses of deadly force by the police are no exception:

But why is it permitted to examine the moment when Loehmann fired his weapon and “Monday morning quarterbacking” to examine the moments leading up to that decision? Marcus pointed out that Ohio is an open carry state where having a weapon does not constitute a crime. Why shouldn’t the officers’ aggressive tactical response to the radio call be considered in weighing the legality of the shooting? Jennifer Laurin, a visiting professor at Columbia Law School, also told me that it’s not at all clear that Sheehan ruled out the consideration of context in use of force cases: “The most that Sheehan can be read as saying is that it was not clearly established that bad police tactics before the use of force were relevant to the reasonableness analysis,” she wrote in an email.

There is much to debate in the legal reasoning set forth in the two reports submitted to the Cuyahoga prosecutor, but one thing that seems clear is that the Supreme Court has made it easy to defend the legality of an officer’s decision to use deadly force. Could the Supreme Court have a role to play in making it harder?

Rachel Harmon, a professor at the University of Virginia School of Law, believes that it does. In a widely cited 2008 law review article called “When Is Police Violence Justified?” Harmon argues that the court has not done enough to define “reasonableness”—and that its doctrine on the use of force by police fails to “answer adequately the most basic questions about police uses of force: when a police officer may use force against a citizen, how much force he may use, and what kinds of force are permissible.”

In her article, Harmon calls on the Supreme Court to refine the reasonableness standard using principles from self-defense law, which “permits individuals to use force to serve particular well-defined interests, such as to protect themselves or others, under specific, carefully delineated conditions, i.e., when that force is necessary to protect against an imminent threat to one of those interests and is proportional to that threat.”

Harmon believes that the reasonableness of a police officer’s decision to use deadly force should be held to a similar standard. “My proposal would require courts to consider whether force used by an officer was necessary, whether it was a response to an imminent threat to the officer or others or the success of an arrest, whether the harm the force was likely to cause is reasonable in proportion to the harm that is threatened,” Harmon wrote to me in an email.

As Neyfakh observes, one roadblock to getting a better legal standard is that the cases with the most favorable set of facts tend to get settled. As I will observe, an even bigger roadblock is Anthony Kennedy being the median vote on the Supreme Court.