When police actions “shock the conscience”

Many years ago the use of force standard for police officers was judged in court on actions that “shocked the conscience”.  This was based on wording used in a US Supreme Court decision made in the early 50s (Rochin v California).  Simply stated, the standard held that if the police officers actions shocked the conscience, or in other words, were appalling and disgusting to the mindset of the judge or jury members, then the officer’s actions were in error.

Because police may encounter the most heinous crimes and must face and stop the most evil people, the mindset of officers is obviously different from say, a dentist or any other person who doesn’t carry a gun for a living.  However, just like a dentist may find himself looking at smiles and teeth on his off time, an off-duty law enforcement officer may find themselves watching for clues of attacks or criminal behavior without even knowing it.

A more poignant example to me may actually be completely disturbing to some.  A police officer may have to think about the possibility of shooting a teenager, a woman, or even a pregnant lady. That just doesn’t cross the mind of most people.  For instance, dentists don’t think about being killed or having to kill every time they put on their work clothes; they don’t think about what it takes to win gunfights. No, for the most part, dentists think about teeth and living life.

Fortunately, perhaps with this view in mind—that judges and jurors don’t have the same job and will likely never have the same mindset as the police officers—the standard changed.

The shock the conscience test has not been used during trial since the 60s mainly because it was deemed that it had a subjective influence.  What’s shocking to one may not be shocking to others with a similar background and experience.  Extrapolated, this means that just because something is shocking doesn’t necessarily mean it’s illegal.  All too often, however, police officers are still judged by this method in the court of public opinion and by the media.

Regardless, the US Supreme Court decision in 1989 (Graham v. Connor) changed how officers were judged in a use of force situation.  The Court held “that all claims that law enforcement officers have used excessive force—deadly or not—…should be analyzed under … [the] objective reasonableness standard.”  Thus, the standard of judgment changed from what shocked to conscience to what was objectively reasonable in the light of what the officer was faced with and what he or she knew at the time.

Using these criteria allows judgment based on what another officer with similar training and experience would do.  There is no 20/20 hindsight, no Monday morning quarterbacking.  The courts will only take into account what a reasonable officer would have done with all the facts they had leading up to the event.

There is a three-prong test that the Supreme Court instructed all lower courts to ask after the Graham case.  These questions can help determine if the officer’s actions were reasonable or not.

1) What was the severity of the crime at hand;

2) Whether the subject posed an immediate threat to the safety of the officer(s) or others; and

3) Whether the subject was actively resisting arrest or attempting to evade arrest by fleeing.

So, the next time a report comes out about a police officer involved in a use of force incident—lethal or otherwise—know that there’s no simple answer to know when a police officer can, for instance, shoot a suspect.  That said, while the incident may indeed unsettle ones nerves, the actions the police officer(s) took will be based on the totality of circumstances and be judged on the objective reasonableness standard and not on whether or not the actions are shocking the conscience of someone who, for instance, looks at smiles all day long.

The views and opinions expressed in this post are those of the authors and do not necessarily reflect the position of Guns.com.