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Typically when we see an officer on the media for their use of force, even when the other person was a danger, we see the general public retort with something of the form "lesser force could have been used! Therefore, he was excessive!"

However, correct me if I'm wrong, in most jurisdictions it's more about whether or not another officer would have reasonably responded with similar use of force and not whether a lesser amount of force was possible. I understand that.

But why is that the case? I actually agree with the law in this case generally, I'm just not sure exactly why. Is this because we can just "one-down" every use of force. For example, if it's too much force for an officer to shoot an aggressive, armed man because "he could have tased him" then can't we then argue a taser is excessive because the officer could have tried to disarm the suspect by hand? Is my rationale consistent with how laws justify use of force or is there a different justification?

  • The question absolutely is whether less force could have been used. That's the point of those investigations. What the general public, uninformed as it is, thinks to be the answer, and what the correct answer is, are not often the same. – Nij Oct 23 '18 at 8:55
  • An officer would enter a high personal risk trying to disarm an armed person by hand. We don't pay police officers enough salary for that kind of risk. And it's the armed person's fault for being armed. If you run around with a gun, it should be obvious that you are putting yourself in danger. – gnasher729 Oct 23 '18 at 11:14
  • "correct me if I'm wrong, in most jurisdictions it's more about whether or not another officer would have reasonably responded with similar use of force and not whether a lesser amount of force was possible." This isn't really correct. Whether a lesser amount of force could have been reasonably used is relevant (especially to criminal liability but also to civil liability), but findings that a fact pattern violated a well established constitutional right (qualified immunity standard in 1983 cases) also matters as does how facts are weighed (often very pro law enforcement). – ohwilleke Oct 23 '18 at 19:23
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The case Graham v. Connor, 490 U.S. 386 may help to explain this. In a use-of-force case, "courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then judge the claim by reference to the specific constitutional standard which governs that right", therefore "The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected". Such claims "invok[e] the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard".

In invoking the notion of "reasonable", the court is referring to the fact that a person chooses an action being in possession of certain knowledge, and using that knowledge plus reasoning, to judge an outcome. So when a suspect appears to be armed, the officer has to decide whether the weapon is real and whether the suspect is likely to use it against the officer. When one conjectures that a lesser degree of force could have been used because it turns out that the suspected weapon was a plastic toy, one is appealing to knowledge not available to the officer at that time. In Graham, the court held that the legal question

is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation

In other words, the judgment is made by reference to the objective facts of the circumstance, and not the subjective emotional state of the officer. As the court put it, "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".

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