Recent instances of police violence against black Americans have revived the debate about when police may use force. Despite the ongoing nature of police brutality, courts have continuously deferred to officers’ judgment in evaluating whether or not the force used was “excessive.” Courts continue to evaluate excessive force claims based on the standard set by Graham v. Connor, in which the Supreme Court held that whether an officer’s use of force was “objectively reasonable” depends on the perspective of a “reasonable officer” in the same situation. However, such “objectivity” has the appearance of a legal fiction, which makes true reform and accountability difficult, perhaps even impossible.
I. The Legal Standard
Modern case law on reasonableness begins with Tennessee v. Garner, a case that considered whether it was constitutional for a police officer to use deadly force to stop an unarmed felony suspect from escaping the scene of a crime. The Court held that any use of force constitutes a seizure. Therefore, whether use of force is reasonable in a particular case must be evaluated under the Fourth Amendment. The Court also held that deadly force must not only be “necessary to prevent the [suspect’s] escape,” but also that the officer must have probable cause to believe that the suspect poses a “significant threat of death or serious physical injury to the officer or others.” If the suspect does not pose an immediate threat, use of deadly force to prevent escape is not justified.
In Graham v. Connor, a police officer, Connor, stopped a diabetic man, Dethorne Graham, who had gone to a store to buy orange juice but quickly left after seeing a long line at the cash register. Officer Connor perceived Graham’s behavior as “suspicious” and followed Graham and his friend as they drove away. After stopping the car and interrogating Graham, the officer called for backup. When other officers arrived, one proceeded to forcefully handcuff Graham, while another shoved him against the police car and threw him inside. This rough treatment ultimately caused Graham to suffer severe, chronic injuries. In evaluating whether the officer used excessive force against Graham, the Court held that the Fourth Amendment required consideration of whether the officer’s actions had been “objectively reasonable” based on the perspective of a reasonable officer in the same situation. In addition, the Court stated that its analysis must consider the fact that police officers need to make split-second decisions about whether a suspect poses a threat and whether use of force is required. Essentially, the court left decisions about reasonableness and use of force in the hands of the officials with a history of misusing it.
In the past thirty years, courts have been disinclined to question the Graham standard. One case, Stewart v. City of Euclid, requires consideration of the “totality of the circumstances.” Examples of factors considered under this approach include the context and severity of the crime, whether there is an immediate threat, whether the suspect is actively resisting arrest, and whether the suspect is trying to flee. However, the Stewart court also held that “the most critical factor is the immediate danger to officers and members of the public in the area.” Ultimately, this holding is a good example of how Graham continues to facilitate holdings that place judgments regarding threats and use of force solely in the hands of police officers.
II. The Objectivity Problem
Like all of us, police officers possess internal biases that may affect their ability to make objective decisions, especially when they are confronted with a situation that requires them to make a quick judgment regarding how to act. These biases are compounded by the nature of police training, which often teaches officers to see potential danger in a wide variety of situations, including routine interactions with civilians. Training scenarios themselves can be biased, as hypotheticals used often refer to “high-crime” neighborhoods. Such hypotheticals may also employ racial stereotypes when presenting assailants in simulation exercises. Regardless of what biases officers may possess going into the job, training exercises such as these clearly teach them to assume that even ordinary situations such as traffic stops can pose a threat. Using racial and class stereotypes can also lead to the development of biases that officers then take into the field or exacerbate biases that officers already held prior to joining the force. Such attitudes, combined with the need to make split-second decisions, make it truly impossible for officers to be “objective” in deciding whether or not to use deadly or excessive force in a situation because their biases will always play a role in that decision. Since all officers face the same problem, the “reasonable officer” in the same situation (as contemplated by Graham) can only be an abstraction. In the end, the Graham standard allows use of force evaluations to be based on subjective, not objective judgments.
III. How Subjectivity Impedes Meaningful Reforms
Since the killing of George Floyd by former Minneapolis police officer Derek Chauvin, mayors and police chiefs throughout the country have made efforts to reform their use of force policies. One common reform has been to require the use of de-escalation techniques before resorting to using force, while another reform requires officer to intervene if they see a colleague using excessive force. While the desire to improve policing is commendable, these reforms do not go far enough, as they overwhelmingly continue to employ the Graham standard. For example, the new use of force policy for Buncombe County, North Carolina requires officers to intervene if they see a colleague using force beyond what is “objectively reasonable.” Another bill regarding the use of force by law enforcement recently passed in Montgomery County, Maryland, which bans chokeholds and limits the use of no-knock warrants, but also allows police to use deadly force “when absolutely necessary.” In Salt Lake City, Utah, a new use of force policy requires officers to “determine [that] force is necessary to stop an imminent threat of death or serious bodily injury,” but it does not say how use of force will be evaluated. In all these cases, the so-called “reforms” still seem to place the burden of objectivity on the officer, meaning that officers will remain largely unaccountable to the public for any use of excessive or deadly force.
Continued use of the Graham standard for evaluating police use of force makes truly objective evaluations of such use impossible. However, as activism against systematic racism and police brutality continues, the debate over the best ways to reform policing remains an ongoing development. With continued protests and community dialogue, it may be possible to find a means of evaluating use of force that renders police officers truly accountable, but this can only happen when decisions about the use of force are made by someone other than the very officers who must decide its appropriateness.
*Celia Feldman is a second-year student at the University of Baltimore School of Law, where she serves as a Staff Editor on Law Review. Celia is a Research Assistant for Professor Robert Knowles. This summer, Celia interned at Senior Legal Services.
 See, e.g., Shawn Hubler & Julie Bosman, A Crisis That Began with an Image of Police Violence Keeps Providing More, N.Y. Times (July 8, 2020), https://www.nytimes.com/2020/06/05/us/police-violence-george-floyd.html; Josh Wood & Tim Craig, As Breonna Taylor Protests Stretch into 12th Week, Calls for Officers’ Arrests Intensify, Wash. Post (Aug. 18, 2020, 8:02 PM), https://www.washingtonpost.com/national/as-breonna-taylor-protests-stretch-into-12th-week-calls-for-officers-arrests-intensify/2020/08/18/ce6f2b9a-d823-11ea-930e-d88518c57dcc_story.html.
 See, e.g., Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019); Reich v. City of Elizabethtown, 945 F.3d 968, 978 (6th Cir. 2019).
 490 U.S. 386 (1989).
 See Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U.L. Rev. 951, 966, 1000 (2020).
 471 U.S. 1, 3 (1985).
 Id. at 7.
 Id. at 3.
 Id. at 11.
 Graham, 490 U.S. at 388–89.
 Id. at 389.
 Id. at 390.
 Id. at 395–96.
 Id. at 396–97.
 Cf. id. at 396 (stating that decisions about whether use of force by police officers is reasonable must be judged according to “the perspective of a reasonable officer on the scene[.]”).
 See, e.g., Ospina v. Dep’t of Corrections, 769 F. Supp. 154, 157–58 (D. Del. 1991); Darrah v. City of Oak Park, 255 F.3d 301, 307 (6th Cir. 2001).
 970 F.3d 667, 672 (6th Cir. 2020).
 Id. at 672.
 Id. (referring specifically to deadly force cases).
 See id. (stating that “[t]he circumstances, and their totality, are considered as they would have appeared to ‘a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” (quoting Graham, 490 U.S. at 396)).
 See Fagan & Campbell, supra note 4, at 1004.
 Id. at 966.
 Id. at 972.
 See id. at 967.
 See id. at 974, 1000.
 See id. at 1000 (“[T]he longstanding practice of deferring to the reasonableness of police officers’ expertise fails to effectively protect persons of color by allowing racial bias to influence an officer’s use of deadly force.”).
 See id. at 964, 971.
 See id. at 962–63.
 See, e.g., Mackenzie Wicker, Buncombe Sheriff Miller Revises Use of Force Policy Amid Calls for Law Enforcement Reform, Asheville Citizen Times (Aug. 28, 2020, 1:41 PM), https://www.citizen-times.com/story/news/local/2020/08/28/use-force-buncombe-sheriff-revises-policy-amid-calls-police-reform/5655948002/; Alyssa Roberts & Jeremy Harris, SLC Mayor Announces Reforms of Police Use of Force, Body Cam, Search and Seizure Policy, Kutv (Aug. 3, 2020), https://kutv.com/news/local/slc-mayor-announces-reforms-of-police-use-of-force-body-cam-search-and-seizure-policy.
 See Wicker, supra note 32; see also Roberts & Harris, supra note 32.
 See, e.g., Wicker, supra note 32 (quoting clause in use of force policy that requires intervention for “us[e of] force clearly beyond that which is objectively reasonable under the circumstances existing at the time); see also Graham v. Connor, 490 U.S. 386, 395–96 (1989) (stating the legal standard for “objective reasonableness”).
 Wicker, supra note 32.
 Kate Ryan, Montgomery County Passes Police Use-of-Force Bill, WTOP (July 29, 2020, 9:58 PM), https://wtop.com/montgomery-county/2020/07/montgomery-county-passes-police-use-of-force-bill/#:~:text=Police%20in%20Montgomery%20County%2C%20Maryland,%22no%2Dknock%22%20warrants.&text=Police%20would%20still%20be%20able,are%20available%E2%80%9D%20under%20the%20legislation.
 Roberts & Harris, supra note 32.
 See Wicker, supra note 32; see also Rogers & Harris, supra note 32; Ryan, supra note 36.
 See supra Part II.
 See Hubler & Bosman, supra note 1; see also Wood & Craig, supra note 1.
 See supra Part III.