On Wednesday, more than one week into the murder trial of former Minneapolis police officer Derek Chauvin for the killing of George Floyd, Chauvin’s lawyer read an excerpt from the department’s manual governing the use of force.
“The ‘reasonableness’ of a particular use of force,” the manual stated, “must be judged from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Minneapolis revised its manual after Floyd’s death to place clearer and tighter constraints on officers engaged in the use of force. But the vague rule laid out in the version of the manual that was in effect during Floyd’s fatal encounter with Chauvin is fairly typical of the guidance provided to officers in the field.
As Sgt. Jody Stiger, a member of the Los Angeles Police Department called by prosecutors in the Chauvin trial, testified, most police departments derive their policies governing the use of force from Graham v. Connor. Graham is a 1989 Supreme Court case that, in the words of scholars Osagie Obasogie and Zachary Newman, “established the modern constitutional landscape for police excessive force claims.”
The language Chauvin’s lawyer read from the police manual was lifted, word for word, from the Court’s decision in Graham.
Authored by Chief Justice William Rehnquist, one of the primary proponents of a tough-on-crime approach that often animated the Court’s decisions during his tenure, the Graham opinion warns that police accused of using excessive force often have to make difficult decisions in highly stressful situations. In determining whether an officer acted reasonably, Rehnquist wrote for his Court, “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.”
Perhaps even more significantly, Graham left cops with little guidance on just what limits the Constitution places on use of force by police. As then-University of Virginia law professor William Stuntz wrote six years after Graham was handed down, “one searches in vain for any body of case law that gives” Graham’s vague reasonableness standard “some content.”
Yet, while some academics did criticize Graham’s approach early on, many prominent commentators outside of the academy only recently have started to think of Graham as a major wrong turn by the Supreme Court. Though three justices joined a partial dissent by Justice Harry Blackmun that criticized some parts of Rehnquist’s decision, all nine justices agreed with most of Rehnquist’s reasoning. That includes Justice Thurgood Marshall, the legendary civil rights lawyer.
But with the benefit of hindsight — and with the benefit of empirical evidence showing that clear legal rules lead to better policing — Graham now looks like a serious error by the Court. As Rachel Harmon, a law professor at the University of Virginia and author of The Law of the Police, told me in an email, “Graham offers a standard focused on judging the use of force after it has happened,” and it “offers very little guidance to officers and departments about how to use force.”
It does little, in other words, to advise police on how they can avoid conduct that might needlessly injure or kill a criminal suspect.
It’s unlikely that clearer rules would have saved George Floyd’s life. As Minneapolis Police Chief Medaria Arradondo testified at Chauvin’s trial, Chauvin “absolutely” violated department policy when he knelt on Floyd’s neck after Floyd was already subdued and handcuffed.
But clear rules can ensure that cops tossed into a dangerous and uncertain situation can fall back on those rules, rather than making a potentially deadly decision with only their fear to guide them. As law professors Brandon Garrett and Seth…