Reasonably Unreasonable: American Use of Force Jurisprudence and Police Impunity

Abstract

This paper tracks Use of Force jurisprudence from the seminal cases of Graham v. Connor and Tennessee v. Garner to our contemporary moment. I am interested here in assessing the evolving meaning of “reasonableness” over time, especially as it relates to legal mechanisms such as qualified immunity which enable agents of the state to utilize excessive force with impunity. The logic of these cases is contextualized against the contemporary moment of reckoning with the realities of state-sanctioned anti-black violence, something from which a theory of reasonability cannot be cleanly separated.

Introduction

Contemporary incidents of police violence against African American men and women as well as other minority groups have spurred contentious political conversations centering on police brutality, and more generally, the (il)legitimacy of (racialized) state violence. The names and stories seem to have grown countless, as these instances of use of force have been projected onto intense political debate as well as media-fueled spectacle. In the wake of the killing of Michael Brown by Ferguson Police Department (FPD) officer Darren Wilson, the U.S. Department of Justice (DOJ) launched an investigation of the FPD and subsequently released a 105-page report detailing what they viewed as definitive patterns of excessive force as well as other constitutional violations being perpetuated by law enforcement in the city of Ferguson, Missouri. These were being disproportionately perpetuated against minorities as well as people with intellectual disabilities. The DOJ claimed the FPD as well as corrections officers in the city systematically apply force in a manner that is not only unnecessary, but also intended to be punitive or intimidating to detainees (United States Department of Justice, 2015). Five years later, following the killings of George Floyd and Breonna Taylor, the urgency of addressing the interrelated problems of antiblackness and excessive state violence became even more apparent. These incidents spurred widespread protests which were met with a doubling-down of police violence. During a global pandemic, crowds of protestors were “dispersed” using tear gas, a known tussive agent, among other things. ¹ This incessant repetition of violence, both in the initial instance as well as in response to the reactions it elicits, underscores the importance of interrogating two inter-related political and ethical issues: the permissibility or normality of excessive violence against humans at the hands of state actors and, more pointedly, the degree to which this violence is inseparable from the antiblackness that underwrites much of America's social and legal landscape (see Fanon, 2008; Martinot and Sexton, 2003; Wilderson, 2010).

The long fuse of this violence has been heavily studied by social scientists as well as legal scholars. Critical scholars of sociology and law have critiqued the American legal system for its involvement in racialized forms of social control through institutionalized practices which emanate from the time of slavery. The problem of mass incarceration has been characterized as one instantiation of this historical process, as a collection of social actions that perpetuate the widespread round-up and confinement of black males, effectively conflating the social categories of “black” and “criminal” through institutionalized practices of social domination (Alexander, 2010; Wacquant, 2000). As a problem of the law, the historical connections between slavery and criminality enshrined in the 13^th amendment of the U.S. Constitution, which abolished slavery except for as punishment for a crime, have been well-documented (Davis, 2003). Fundamental to these issues is the way in which (racialized) state violence more generally inscribes itself into the logic of the law and what it considers to be “reasonable” actions. When use of force jurisprudence at the level of the United States Supreme Court (hereafter USSC) is analyzed, it is striking how the law's fictional metric of “objective reasonableness” not only fails to curtail police violence, but also plays a part in reproducing the very logic which makes it permissible.

The logical embeddedness of gratuitous violence to the paradigm of legal reasonableness effectively renders the law endogenous to, or interdependent with, the imperatives of policing (Edelman et al., 1999; Obasogie and Newman, 2019). This endogeneity is undergirded by a broader problem raised by Martinot and Sexton (2003), the impossibility of “non-fraudulent” ethics in a society which structures its ethical discourse around a fundamental (perhaps willful) ignorance of the violence it perpetuates daily. The expansiveness of police discretion in terms of the ability to deploy a wide variety of actions within the “use of force continuum” under many different circumstances is notable. ² Use of force jurisprudence as a result comes to resemble very closely the atmosphere of “police impunity” Martinot and Sexton (2003) describe in which the police are “a law unto themselves.” For Marinot and Sexton, the generalized inscription of this violence is hegemonic and mundane, despite its persistent (re)appearance in the form of spectacle (2003).

Perhaps nowhere is the practice of routinization through legal endogeneity to the bureaucratic imperatives of policing clearer than in the logical reasoning of the USSC as well as other high-level federal courts in use of force caselaw. In contemporary cases, a preoccupation with the technicalities of constitutional doctrine surrounding use-of-force issues has contributed to the continued diminishment of a substantive or generalized right to be free from excessive force (Cover, 2016). Graham v. Connor as well as Tennessee v. Garner are seminal cases where this shift begins, and subsequent cases have extended their protections to police officers through qualified immunity, which demands of plaintiffs alleging civil rights violations not only that they demonstrate a violation, but also that the right alleged to be violated was “clearly established.” This regular addition of qualified immunity as an augmentation to the ‘objective reasonableness’ inquiry advanced in Graham and Garner has led to a tendency to disavow certain aspects of the ‘objective reasonableness’ criteria established in these cases when they are raised in support of a plaintiff's argument. These principles are now commonly interpreted as operating at too high a “level of generality” to demonstrate definitively that a clearly established right has been violated. What results is a use of force jurisprudence which effectively grants, as Sonia Sotomayor puts it, “absolute immunity” to police and other state agents since it augments the reasonability inquiry with the murky and difficult-to-prove question of what constitutes a “clearly established right.”

In 2020, Congressional Bill H.R. 7085, also known as the “Ending Qualified Immunity Act”, was drafted as an attempt to eliminate good faith defenses when state actors are accused of violating rights under §1983, which allows individuals whose civil rights are violated to sue police officers and other state agents. Whether or not this will pass is as of the time of this writing, yet to be seen. Nonetheless, the establishment of a genealogy of use of force jurisprudence, particularly the ways it continually and repetitively re-creates “reasonability”, is important for understanding some mechanisms which reproduce the endless repetition of police violence mapped out by Martinot and Sexton (2003). This pattern of jurisprudential reasoning, as well as the practices it gives rise to, are important discursive registers through which the state absolves itself of any sort of guilt or sense of responsibility which could otherwise emerge. As such, the problem excessive violence is a problem of “reasonableness” as we know it, and the emergence of qualified immunity as an indispensable element of this concept is symptomatic of a more fundamental tendency to repetitively mystify state violence. Put another way, legal reasonableness perpetually struggles to manage the irrationality of law.

Garner, Graham and the Origins of Contemporary “Objective Reasonableness”

Reasonableness is almost invariably at the conceptual center of jurisprudential discourse concerning the use of force by state agents. Questions pertaining to cruelty, sadism, systematic punishment, proportionality, and legally proscribed rights all in some way or another come to be analytically connected with the legal image of a “reasonable person” as it relates to what constitutes “excessive” use of force. As a result, legal conceptualizations of reasonableness have been dynamic over time. They have been highly context-dependent, with contemporary jurisprudence emphasizing the importance of a “fact-based” inquiry in establishing whether the actions of a state agent in each case comport to this standard.

Contemporary Supreme Court use of force jurisprudence almost exclusively draws upon certain aspects of Graham v. Connor (1989) and Tennessee v. Garner (1985). These cases are an important point of departure from prior use of force jurisprudence because they impart an “objective standard” which explicitly does not consider the intent or motivation of police. Instead of a consideration of mindset, a court's decision on a use of force case should depend on “the totality of the [objective] circumstances (adopted from Garner) … from the perspective of a reasonable officer without the benefit of 20/20 hindsight” (Graham v. Connor, 1989).

In Garner's analysis of the unconstitutionality of using deadly force against a suspect who is unarmed and fleeing the scene of an alleged crime, the court's analysis relativizes this practice by evoking an “objective reasonableness” standard which appeals to common departmental practice as being among its main criteria. In doing so, the court asserts that deadly force is only appropriate to stop a potential escape if the person fleeing “poses a significant threat of death or serious physical injury to the officer or others” (Tennessee v. Garner, 1985). In this case, as Edward Garner attempted to climb a chain-link fence to avoid being taken into custody by Officer Elton Hymon, he was shot in the back of his head by Hymon and died as a result. Garner was unarmed. Tennessee's argument in defense of Hymon's actions asserted that when police have attained enough evidence to make a seizure, the magnitude of the level of force used in completing this task is immaterial. This ruling was eventually reversed, and the Supreme Court affirmed the reversal. They found the District Court and Tennessee's reasoning to be erroneous because assessing a reasonability which considers the “totality of the circumstances” necessarily involves an analysis of the interdependent but nonetheless competing interests of the State and the individual. This imagined notion of “balancing” becomes the foundation upon which a subjectively situated “objective” reasonability inquiry rests. This logic culminates in Garner with the notion that sociological as well as technological change can render a law obsolete. What constitutes legally “reasonable” behavior is necessarily dynamic over space and time. One way the court addresses this dynamism is by couching reasonability within an empirically grounded framework through which these changes can be conceived of in concert with a quantitative or statistical lens that concretizes and normalizes the actions of police.

Justice White, writing the court's concurring opinion, criticized the notion of relying on common-law, which by and large allowed for police to use any means necessary to make an arrest, as a “mistaken literalism” (Tennessee v. Garner, 1985). He evoked evidence of dissensus at the state level in terms of the enactment of policy which permits the usage of deadly force to seize fleeing individuals. He cited a study which found that at a more localized level, 86.8% of departments did not permit this behavior. White went on to reason that the court can deem the use of deadly force in the context of an attempted escape objectively unreasonable because there is no correlation between a lack of this practice and higher levels of crime. By extension, he reasoned that the utilization of deadly force in such situations does not have a deterrent effect or improve public safety.

The “empirical” nature of the court's critique of this old common-law standard is telling. It obscures the reality of a state-sanctioned execution without trial which, as the court mentioned, had previously rested on the logic that the “fleeing felon” or alleged “criminal” has “already forfeited his life” (Tennessee v. Garner, 1985). This is not merely a step in the dissolution of substantive rights. It represents more broadly an institutionalized form of psychic resistance (Freud, 1910) which diminishes the significance of human suffering or death in legal rights discourse. Edward Garner becomes a data-point because the logic of the Supreme Court's concurring opinion reduces his claim to an empirical question about criminal justice efficiency. The mystification or abstraction of state violence accomplished through this emphasis on the essential importance of institutional functionality is a key development in establishing a reasonableness inquiry that alters the interpretation of state-dispensed death and injury.

If these tendencies towards a particular relation to utilitarianism and empiricism can be theorized as emerging out of a need to “sanitize” (Lacan, 2006) or assuage the guilt associated with punishment or state-sanctioned violence, the reasonableness inquiry might be viewed as being immersed in something like the “actuarial logic” Feeley and Simon (1992) describe in which the practices of the American penal system come to be viewed through self-referential and/or non-teleological assessments of success. For those subjected to this machinery, alienation increasingly enters the realm of abstract representation, as the subject is effectively reduced to a data point within an aggregate. Feeley and Simon (1992) initially raised this notion to analyze a systemic shift in practices of punishment they labeled as a “new penology.” For them, punishment comes to be stripped of its rehabilitative aims. The “corrective” aspects of it wither away as the law “becomes a graveyard” (Han, 2012) and legal institutions become more akin to sites of containment (Platt, 2001) than disciplinary institutions. While a conceptual distinction is often drawn between violent encounters with the police and the massive punitive apparatus that bookends the ‘other side’ of the American legal system, the logical affinity between these two aspects is notable, particularly as it relates to the law's perpetual tendency to mystify state violence through various discursive iterations of what constitutes ‘reasonableness’.

Technological Rationality

One way of viewing these tendencies towards mystification is through a lens which considers Herbert Marcuse's notion of “technological rationality.” If the very apparatus which administers punishment and state-sanctioned violence spirals towards a stripping away of its own “progressive” aims and becomes more like a site of disposal for the socially dead, the question remains how legal rationality, particularly in terms of a discourse around the “reasonable” deployment of acts of violence and punishment, manages to reconstitute itself alongside, and despite these conditions. Put another way, how does an artificial telos of progress imprint itself onto a socially situated assessment of acts of violence which may otherwise be deemed senseless?

In One-Dimensional Man (1964), Marcuse aims his analytical sight towards the problem of “one-dimensional thought”, a discursive manifestation of domination which freezes conformity as well as “opposition” within a framework doomed to be decisively uncritical, and which as such is incapable of adequately interrupting the perpetual repetition of repression. Designed obsolescence and the correlative manufacturing of false needs are viewed as being ways of reinforcing what he calls an “administered society.” The comforts these conditions produce are held up as justification for unnecessary acts of death or destruction as well as the existence of a never-ending need for labor and toil (Marcuse, 1964). Within this broad framework, what is relevant to legal rationality is Marcuse's discussion of the ways in which the illusion of progressive telos comes to be projected onto the “technical apparatus.” A scientific or empirical rationality, even if it is not inherently imbued with repressive imperatives, necessarily reflects the surrounding social conditions. The valorization of the “objective”, the measurable, over all else renders potentially transcendent values irrelevant, relegating them to the position of mere ideals. This is a semi-autonomous technological counterpart to a rule of law which “drags down” (Han, 2015) all claims that do not effectively reconstitute its imagined framework. It is also the broader logical framing in which the question of “why” replaces that of “how”, as a crass functionalism comes to be projected on nearly all social problems. The law both works within and presses these limits. It exists within this framework to the extent it reproduces conformity through a self-referential framing of any sort of problems which could potentially bring about its own existential devastation, but to the extent that law and the knowledge it produces are also locations of contestation, this logic breaks down and reconstitutes itself anew.

Qualified Immunity, Self-Referentiality & the Institutionalization of Neutralization

The ‘empirical’ register of Garner is reflected in the spirit of the rationalizations articulated in Graham to the extent the objective reasonableness standard ostensibly minimizes the interpersonal or subjective aspects of the legally sanctioned violent encounter. Contemporary jurisprudence has built off this spirit of empiricism but has further abstracted it. This has been accomplished primarily in two interrelated ways: (1). The self-referentiality of precedent-based discourse that draws at times nebulous distinctions between definitions and (2). An institutionalized mechanism of qualified immunity that, through its demand for plaintiffs to demonstrate the “clear establishment” of a right, constitutes a method for abstracting these claims into the abyss of a jurisprudential echo chamber.

One prominent feature of this legal discourse around excessive force is the attempt to distinguish the exposure to state violence from a definition of what constitutes “punishment.” The Supreme Court has articulated time and again, most recently in Antonin Scalia's dissenting opinion in Kingsley v. Hendrickson, that excessive force in and of itself does not amount to punishment. ³ In this regard, to the extent the reasonableness analysis reflects a degree of self-referentiality ⁴ or deference to repressive state policy, its logic resembles what Feeley and Simon describe. As such, even if White's “empirically-based” opinion in Garner is viewed as an attempted critique of state violence, its reasoning allows the logical conclusion that the execution of a fleeing suspect as an institutionalized practice would be justifiable if it were found to be efficient in curbing crime rates. When the court evokes the notion of general deterrence, it knots state violence and punishment in ways which make them logically interdependent or symbiotic. Garner is an instance where this methodology is at best deflective or “neutralizing” (Sykes and Matza, 1957) as it fails to wholly disavow the excessive violence it is confronted with, instead couching its opinion as a rejection of a statute based in a pseudo-empirical logic which valorizes efficiency.

Garner set the stage for Graham as a decisive move away from substantive or generalized rights. Graham reiterated Garner's emphasis on reasonability as a means of assessing what objectively constitutes an “excessive” use of force. Both cases attempted to construct a normalized definition of what amounts to context-dependent levels of appropriate force. In Garner, the withering away of common-law based practices at the state and local level of utilizing deadly force to apprehend “fleeing felons” is held up as a new normal. Graham (1989) sought to establish a more concretized and constitutionally dependent test against which rights to be free from force as seizure may be measured against the standards contained within the fourth and eighth ⁵ amendments. These developments departed from the previous doctrine which had emphasized a type of substantive due process as generalized negative freedom, a “generic right to be free from excessive force” previously articulated by the court in Johnson v. Glick (1973). Instead, the legality of a particular use of force was distilled into the question of whether a “reasonable officer”, given the totality of the circumstances, could have behaved in a similar way. As a result, “subjective” criteria such as the mind-state of the officer were displaced in favor of these more “objective” factors. This minimizing of “subjective” factors permits a logic which may render actions done with sadistic or malicious intent ⁶ still “reasonable.” As we will see, this pernicious logic is very malleable. The meaning of “reasonableness” comes to be incomprehensible or nonsensical outside of any framework which does not valorize or prioritize the imperatives of policing. For this reason, even if qualified immunity, an institutionalized symptom of this illogical logic, is formally abolished, one must wonder how “reasonableness” will be reshaped to further rationalize brutality.

Contemporary cases, most notably those which elaborate on qualified immunity, have significantly expanded a sort of rationality which neutralizes any state action that is not blatantly wrongful. In doing so, these cases reiterate some parts of the logic of Graham and Garner while disavowing other aspects of it. While objective reasonableness is often deployed in contemporary cases as a means of protecting police who are presumably acting in good faith to accomplish a legitimate state objective, the utilization of the standards put forth in Graham and Garner by civilian plaintiffs has often been cast aside due to what the Supreme Court considers to be the “high level of generality” at which the reasoning of these cases functions. Given this “generality”, the court instead prefers to approach use of force litigation as an “intensive” fact-based inquiry. This logic culminates in the court's use of qualified immunity, which effectively demands of a plaintiff that he or she demonstrate how violated rights are demarcated by specific precedent. A right which is alleged to be violated must be one which exists “beyond debate” (Ashcroft v. Al-Kidd, 2011; Mullenix v. Luna, 2015). Rights themselves begin to collapse under their own gravity as the court becomes increasingly preoccupied with its desire to reach a highly specific articulation of what constitutes clearly established law at the expense of a more generalized sense of legal freedom. Ironically enough, these iterative elaborations on rights can be interpreted as what underlie their decay (Han, 2015).

Logics of Punishment and the Decomposition of the Substantive Right

What may be called the “decomposition” ⁷ of the generalized right to be free from excessive force seems to be driven by two interrelated discursive shifts. First, the concept of objective reasonableness is now couched in a doctrine of intensive fact-based inquiry which is institutionalized in the form of the legal practice of qualified immunity for “all but the plainly incompetent” who knowingly violate a “clearly established right” (Malley v. Briggs, 1986). Secondly, there is a deliberate logical equivocation of legal reasonableness with the sensibilities of penal administrators or law enforcement agencies. Kingsley v. Hendrickson (2015) is reflective of these trends in several ways. Here, the Supreme Court held that, in step with the logic of Graham, a District Court's jury instruction was not properly administered due to its inclusion of the words “reckless” and “knowingly” as subjective criteria which imply that jurors ought to speculate about the mind-state of the jail officers who struck Michael Kingsley with a Taser while he was laying on the ground in handcuffs. While Kingsley benefitted from this decision, the logical reasoning of the Supreme Court is a reiteration of the court's prior foreclosure of opportunities to partake in a more holistic analysis of what constitutes a violation of one's right to be free from excessive use of force.

The court's ruling in Kingsley reaffirms a logic which places reasonability at the helm of the imagined sensibilities of State actors. Drawing off Bell v. Wolfish and other equal protection jurisprudence, the court assessed what it means for an instance of excessive use of force, or even the more general conditions of confinement to “amount to punishment.” One way this may occur is if the actions taken have no connection to “legitimate governmental objectives.” These cases assume that for the most part, the objectives endorsed by prison or jail administrators are legitimate exercises of power. In Bell v. Wolfish (1979), the court explicitly advanced the notion that the judiciary ought not “second-guess” the policies put in place by these “expert” administrators. The distinction being made between objective reasonableness and subjective intent becomes blurred. The interpretations of management-level agents of the state, at least in the context of these types of cases where individuals are alleging a violation of their constitutional rights, come to be taken as generally embodying reasonableness. As a result, the “excessiveness” of the force or punishment is determined relative to its relation to the goals of the jail or prison (Kingsley v. Hendrickson, 2015). In step with a doctrine of qualified immunity which requires plaintiffs to demonstrate the “clearly established” nature of an allegedly violated right, the precedent set forth in Bell, among other things, is that a petitioner asserting the conditions he or she experienced during pretrial detention were in violation of civil rights would have to prove that these were not reasonably related to the “legitimate goal” of the institution. What results is a doctrine of “objective reasonableness” which often cannot be reduced beyond the imagined sensibilities of the State and its representatives.

In this way, law becomes endogenous to or a reflection of repressive iterations of state power and projects a manifestation of what Foucault (1977) calls “a political economy of the body” onto its juridical or technical legal discourse. The “right” itself is fetishized as being highly objective and technical. It is imagined as possessing an ever-increasing degree of specificity and measurability. This furthered development or elaboration of these “rights” is precisely what renders them irrelevant when the “qualified immunity” doctrine demands of plaintiffs increasingly specific articulations of how their rights were violated as well as a subjective interpretation as to whether a “reasonable” officer would have known he was transgressing them. While the Kingsley ruling is another formal disavowal of utilizing “subjective” factors, qualified immunity requires a generous speculation into the mindset of the state agent in question. Despite the speculatory nature of this inquiry, the malicious or sadistic intent of a police officer cannot be used to establish unreasonability. A plaintiff must demonstrate not only that an officer violated a clearly established constitutional right, but that a reasonable officer would have known this right was being infringed upon. What results are the absurd possibilities that a state official can be acting maliciously reasonable, sadistically reasonable, mistaken but reasonable, or even ‘unreasonably reasonable’ ⁸ if they understand the behavior as being rational under the circumstances or if it can be inferred that a “reasonable person” would have interpreted the circumstances similarly (Saucier v. Katz, 2001).

Violence, Perversion, and the Valorization of the ‘Reason’ of the State

The conflation of state practice and legal ideals of rationality or reason are what underlies notions of policing becoming synonymous with law itself (Martinot and Sexton, 2003). As Marx (1842) observed, law can be read as the rationality of those who are in power, projected as an abstract form which prevails or triumphs over any customary practice viewed as being prior to it or outside of “progress.” Yet, the question remains what underlies this ideological mystification of human action (Pashukanis, 1926). One way of viewing this mystification can be imagining the State as a “composite reality” which lacks the clearly ordered rationality and teleological aims it is imagined to be striving towards (Foucault, 1991). As Martinot and Sexton (2003) point out, police violence appears to be a strange structural phenomenon in the sense that it is simultaneously sanctioned and disavowed by the State; this contradictory or illogical arrangement, they go on to argue, is one which is impossible to represent due to its fundamental emptiness or lack and must therefore be continually reinforced through compulsive repetition or ritual. Emergent and seemingly contradictory definitions of “reasonability” seems to comport to these observations. On the one hand, there is the development of an apparently inherent rationality ascribed to the behaviors of the State actor, yet on the other, the law itself opens specific avenues for claims of contestation in the form of civil rights litigation. U.S. Code §1983 is meant to provide legal recourse for citizens who wish to pursue civil claims against individuals who, acting “under the color of law”, violate the civil rights of another, but qualified immunity often liquidates these claims before they can materialize. The formal aim of this practice is to shield police officers and other agents of the state from litigation when they make mistakes in good faith (See Kingsley, Graham, Kisela, Screws (1945), etc.). The court has generally adopted a two-pronged test when assessing the validity of a claim to qualified immunity; the first question has to do with whether a constitutional right was violated and the second has to do with whether the right in question was clearly established at the time of the transgression. If the right in question is not found to be “clearly established”, the state official is qualifiedly immune ⁹ from lawsuits. In this context, reasonability can become rather one-dimensional. The court contends in Plumhoff v. Rickard (2014), for instance, that if a course of action is reasonable, there cannot be a quantitative excess of it. ¹⁰ In this sense, the case harkens back to the logic the court was said to have disavowed in Garner, where it ruled that a degree of proportionality is necessary in affecting a seizure. In Plumhoff, Vance Plumhoff was granted qualified immunity after firing 15 gunshots into Donald Rickard's vehicle to terminate a high-speed chase. Both Rickard and his passenger Kelly Allen were killed because of this decision. The court held that if it were reasonable for Plumhoff to use deadly force in this instance, then the number of shots fired into the vehicle is immaterial. The State's interest in protecting “innocent bystanders” during an imminently dangerous situation was used here as a justification for both the action itself and the magnitude of it.

The reasoning is in this way reductive. If Plumhoff was legally justified in using deadly force to terminate a high-speed chase, then the quantitative magnitude and qualitative character of the force are not of importance here according to the court. As a result, Allen's presence in the vehicle is not a part of the reasonability calculus simply because she is not being legally evoked as a claimant in this case. Thus, “reasonability” here is couched around the legal technicalities of the case as much, if not more, than it is the in the behaviors of the officer. Plumhoff's actions are deemed reasonable only by law's willful forgetting of Allen's presence. The disavowal and minimization of her death as a sort of collateral damage is accomplished by reasoning that Rickard's estate cannot claim his rights were vicariously violated. The court by this logic declares that it would be “perverse” if Rickard's “disregard for her safety” worked to his benefit (2014). The court thus pathologizes Rickard's behavior as it normalizes Plumhoff's actions. In the sense that both individuals presumably put the lives of others in danger, and that Plumhoff killed a bystander, both of their actions could be viewed as being reckless. Instead, the court conceives of perversity through a lens which normalizes violence dispensed by the State (Van Haute, 2013).

While the reasoning in Plumhoff implies the vehicular pursuit was re-escalating and therefore for the court warranted such extreme intervention, the case of Mullenix v. Luna is an example of one in which deadly force was seen as being acceptable despite what may have been a de-escalating situation where more options were available. Officer Chadrin Mullenix, despite being told by his supervising officer to wait and see if spike-strips would successfully halt the vehicle of a fleeing man named Israel Leija, attempted to shoot out the car's engine with his firearm and as a result, unintentionally shot and killed Leija. In following the logic of Plumhoff, the court reasoned that Mullenix acted reasonably under the circumstances, despite the presence of less-lethal alternatives and despite his lack of training in the technique he used. In doing so, the court extended the logic of Plumhoff to the realm of a problem concerning a qualitatively excessive force. The court reasoned that spike-strips and gunshots are both dangerous, and therefore, Mullenix was merely making a choice between “dangerous alternatives.” That “officers are entitled to choose” between these alternatives implies a certain degree of equivalency or homogeneity.

Despite there being a choice involving the more conservative course of action involving utilizing spike-strips, the decision to discharge a firearm comes to be viewed as being equally “reasonable” even though in the moment of Mullenix's decision, these actions were mutually exclusive. As Justice Sotomayor points out in her dissent, Mullenix was not trained in this technique and had several minutes to deliberate on this decision, ultimately eliding the orders of his commanding officer. After shooting Leija dead, Mullenix bragged, “How's that for proactive?” This moment perhaps above all is exemplary of the mundane nature of police violence theorized by Martinot and Sexton (2003). The remark in the moments following the killing of Leija reflects a sort of satisfaction with a “job well-done” ¹¹ rather than a serious reflection on the tragedy that had just unfolded. The majority opinion supports an ever-broadening concept of discretion, which by extension adopts a more expansive definition of reasonableness when it comes to the actions of police. Mullenix would have been acting “reasonably” had he obeyed the orders of his supervising officer as well as in his decision to directly contravene them.

Another apparent inconsistency of the reasonability standard is its potential for being “double-counted” in legal analysis. In Kisela v. Hughes (2018), the court contended (in following with the logic of Saucier v. Katz) that even if the assumption is made that a citizen's fourth amendment rights have been violated, an officer may still be entitled to qualified immunity if the right is not “clearly established.” The fourth amendment, which protects against unlawful searches and seizures, in and of itself contains a reasonability inquiry, which theoretically would be an adequate legal terrain on which to assess a claim. However, with qualified immunity and its demand on the plaintiff for proof of the right's “clear establishment”, the possibility remains an officer can “reasonably” violate the constitutional provision which prohibits unreasonable conduct. In this case, Officer Andrew Kisela shot Amy Hughes, a woman with a mental disability who was holding a knife at her side on her property. She had previously been acting “erratically” and for the court's majority opinion, this behavior justified the belief that she was an imminent threat to her roommate who she had been standing near while holding the knife. As Sotomayor notes in the court's dissent, the degree to which Hughes posed an imminent threat is a debatable point. She points out that Hughes was standing on her own property, with the knife held at her side pointed towards the ground and had not at the point done anything wrong legally. She goes onto claim that a jury could have found that Hughes’ rights were violated and cautions that qualified immunity should not be utilized as “absolute immunity.” What Sotomayor warns of moves ever closer to becoming a reality as plaintiffs are increasingly burdened with overcoming the rigid qualifications of the qualified immunity inquiry.

What distinguishes this case from others is this evocation of a multi-layered reasonability inquiry which effectively renders the concept as one which is in contradiction with itself. In asserting that Kisela could have violated the fourth amendment's prohibition against unreasonable seizures but is immune to suit if he “reasonably believed” he was not violating a clearly established right, the court renders unreasonableness reasonable ¹² if the officer simply believes he or she is acting reasonably.

In an earlier case, City of San Francisco v. Sheehan (2015), the court also speculated as to the subjective beliefs, or potentially possible number of subjective beliefs, of a police officer in establishing whether a given act was “reasonable.” Teresa Sheehan, who was diagnosed with schizoaffective disorder, told a social worker and, later, several police officers, that she would kill them if they did not get out of her private room in the group home where she resided. She had stopped taking her medication and was believed to be behaving erratically, which had at the time caused concern for the staff of the group home. After the social worker was threatened by Sheehan, police officers arrived on at the home and decided they would enter the room without Sheehan's consent. At first, they entered by key and Sheehan told them to leave, brandishing a kitchen knife. Rather than giving the situation time to defuse, the officers busted down Sheehan's door, pepper spraying her as they yelled at her to drop the knife she had been holding. She was reportedly several feet away from them and was not dropping the knife, so the officers fired several shots at her. The court reasoned that the seizure was constitutional because there was reason to believe that Sheehan was a threat to others, even though her ‘threats’ had been qualified with the words “if you don't leave my room.” To further justify that the seizure was reasonable, the court speculated as to what the officers’ subjective beliefs could have been. The threat of escape was one aspect which was concerning in the moment. Given that Sheehan's room was on the second floor, the court conceded that she would have “needed a ladder” to escape her room.

Justice Alito, writing this majority opinion, stated that since many buildings in the city of San Francisco have fire escapes, that the officers probably believed there was one and that Sheehan could have escaped her room and presumably harmed others. There was no fire escape. This assertion was merely the imagined circumstance Alito contrived in this instance to surmise that the officers who shot Sheehan had taken a wholly reasonable course of action. They “had no way of knowing” there was no fire escape. So, reasonableness in this instance was as much about what officers do not know as the objective facts of a situation. When there is an unknown, it seems, the court tends to fill in this gap with an imagined narrative which tends to speak in deference to the state actor in question. In this way, the “intensive fact-based inquiry” of qualified immunity becomes subjective and speculative when it considers the actions of police officers.

Conclusion

As these cases demonstrate, the reasonability inquiry becomes subjective to the extent that “objectivity” comes to be conflated with the sensibilities of law enforcement agencies and other repressive state bureaucracies. Returning to one of the central arguments made by Martinot and Sexton (2003), such an arrangement can be theorized as arising from gratuitious (antiblack) violence which is in excess of sensible or logical articulation. Realms of contestation then, such as §1983 claims seem to implode or “decompose” over time, as the increasing demand for specificity catalyzes the decay of more “generalized” rights. In the context of use of force jurisprudence, this decay anchors itself to the reasoning of Graham and Garner, and the metric of “objective reasonableness” these cases articulate at the expense of a more substantive or ‘generic’ right to be free from excessive force. The contemporary augmentation of this metric with qualified immunity creates a demand that plaintiffs lay out a highly specific articulation of which right was allegedly violated as well as a demonstration of its “clear establishment.”

The objective and the subjective here come to be intricately interspersed. Despite a formal disavowal of a subjective inquiry into the mind-state of a police officer (Kingsley), the qualified immunity prongs demand speculation into this subjectivity, even if the “state of mind” question is displaced onto a discussion of the clarity of the right itself. These formations in part resemble Marcuse's technological rationality to the extent they are manifestations of repressive relations which are projected onto a technical apparatus. This rationality differs, however, in that its own logic displays a propensity to breakdown and reconstitute itself anew. The generalized right is effectively deconstructed by the objective reasonableness inquiry, which is then altered by the contemporary deployment of qualified immunity. Through the repetition of a systematic imperative to imagine the mind state of a “reasonable officer” on a scene, the realms of quantitative as well as qualitative excess of force are increasingly foreclosed. The rationality underlying this phenomenon mirrors a “technological” one to the extent it inscribes what Marcuse (1964) would call the “logic of domination” onto law itself. But crucially, this logic forms in the context of what is ostensibly a conflict between authoritarianism and contestation that is contained and shaped by the terms of order dictated by the former. Within this pseudo-conflict, the evolution of institutional barriers or safeguards (such as qualified immunity) alongside the fictive symbolic metric of the “reasonable person” preserves the tacit (sometimes explicit) acceptability of excessive force and violence in the logic of a formally neutral jurisprudential discourse.