Criminal Justice

Supreme Court’s deference to police for ‘reasonable’ conduct faces scrutiny in wake of brutality cases

WASHINGTON – A high-speed police chase in 2001 ended when Georgia police deputy Timothy Scott bumped the rear of a speeding suspect’s car, leading it to tumble down an embankment and overturn. The driver was rendered a quadriplegic.

Federal district and appeals courts allowed Victor Harris’s lawsuit alleging excessive force to proceed, but he ran into a roadblock at the Supreme Court.

“In the end, we must still slosh our way through the factbound morass of ‘reasonableness,'” Associate Justice Antonin Scalia wrote for the 8-1 majority. “Whether or not Scott’s actions constituted application of ‘deadly force,’ all that matters is whether Scott’s actions were reasonable.”

That standard –set out in the 4th Amendment to the Constitutionand hammered home in a 1989 Supreme Court case – has given police what critics call an extra level of protection from civil lawsuits, making prosecutions for brutality or misconduct difficult.

On top of that, the high court routinely grants police and other public officials “qualified immunity” that protects them from being sued for official actions unless they violated “clearly established” laws or constitutional rights.

Immunity:Legal immunity for police misconduct, under attack from left and right, may get Supreme Court review

The justices may agree as soon as this month to reconsider that immunity. But the murky standard of “reasonableness” would remain a hurdle for those claiming police misconduct.

In the wake of George Floyd’s racially infused killing in Minneapolis late last month, local, state and federal officials are once again calling for law enforcement reforms. To date, the nation’s highest court usually has excused alleged police brutality or misconduct.

“Everywhere you go in criminal procedure, it’s ‘was it reasonable, was it reasonable, was it reasonable,'” says Barry Friedman, faculty director for the Policing Project at New York University School of Law.

“The Supreme Court has basically refused to regulate policing,” Friedman says. “The only time they set clear rules is when they let police do things, not when they keep them from doing things.”

But the public’s aversion to Floyd’s death, after a police officer knelt on his neck for nearly nine minutes, may prompt a re-examination.

‘Make it stop’:George Floyd’s brother Philonise urges Congress to ‘do the right thing’

“What happens outside of the court and how social mores change has an impact,” says Jon Greenbaum, chief counsel at the Lawyers’ Committee for Civil Rights under Law. “If the public’s view is that police officers are acting unreasonably in many instances, in particular against people of color, then that’s going to impact what is considered reasonable.”

Police push back

Police associations say officers have come to rely on the Supreme Court’s doctrine of qualified immunity as a first line of defense in disputes over whether their actions were reasonable. Without that protection, they say, officers would be afraid to act.

“More peace officers may choose to take an overly cautious path that could result in lives lost if the law enforcement community believes that the courts will not guard them from liability for reasonable actions taken to protect the public,” lawyers for a coalition of police and municipal groups argued in a Texas case pending before the high court.

That case is one of nine under consideration by the justices amid a growing chorus of criticism from lower court judges and scholars on both the left and right who say qualified immunity makes it nearly impossible to win civil lawsuits alleging official misconduct.

Two of the court’s current justices have pushed back against that trend from opposite ends of the ideological spectrum. Associate Justice Sonia Sotomayor, arguably the court’s most liberal member, has labeled the doctrine “an absolute shield for law enforcement officers.” Associate Justice Clarence Thomas, the most conservative member, has complained that it has no historical basis.

But the high court’s majority has said the doctrine “balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Even if the justices limited or eliminated that immunity – denying public officials that first line of defense – police still could claim their actions were reasonable. And what’s reasonable, the court usually decides, is in the eyes of the beholder.

In the unanimous 1989 case, it said “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.”

“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,” Chief Justice William Rehnquist wrote.

“Now is the moment”

Using that standard, the high court has ruled repeatedly against those charging police misconduct.

In 2018, the justices absolved an Arizona police officer for shooting a woman holding a kitchen knife. In 2015, they ruled for California police who shot a woman with a mental disability. In 2014, they excused Arkansas police for killing a driver and passenger during a high-speed chase into Tennessee.

Critics say the court’s hands-off standard makes it too difficult to challenge police actions as unreasonable.

“It’s a very general standard. It’s a very pro-police standard,” says Sam Spital, director of litigation at the NAACP Legal Defense and Educational Fund. “It doesn’t say a whole lot about what reasonableness means.”

David Gans, director of the human rights, civil rights & citizenship program at the Constitutional Accountability Center, notes the 14th Amendment’s promise of equal protection grew out of 19th-century police attacks on black neighborhoods in Memphis and New Orleans. He says the Supreme Court should consider that legacy in police brutality cases involving African Americans.

Democrats in Congress have proposed legislation that would limit protections for police accused of misconduct and restrict the use of deadly force. That and other local initiatives give civil rights advocates hope that some legal impediments will be lifted.

More:Democrats unveil sweeping police reform bill, honor George Floyd

And there are signs some courts are coming around. On Tuesday, the U.S. Court of Appeals for the 4th Circuit stripped five West Virginia police officers of qualified immunity for shooting a homeless man 22 times in an altercation that began over walking in the street, rather than the sidewalk.

“Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis,” Judge Henry Floyd wrote for the three-judge panel. “This has to stop.”

Says Amir Ali, deputy director of the Supreme Court and appellate counsel program at the MacArthur Justice Center: “Now is the moment when we can enact greater protections.”

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