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Old October 28, 2018, 05:48 AM   #18
Spats McGee
Join Date: July 28, 2010
Location: Arkansas
Posts: 7,851
Originally Posted by Aguila Blanca View Post
I respectfully disagree. The law may regard the reasonable man standard as "objective," but on a jury of twelve human beings, . . . .
When I played defense, I always tried to keep cases from getting to the jury. Disagree if you will, but SCOTUS uses an "objectively reasonable" standard in use of force cases. It has done so for years, and this still holds true today.
In Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court held that the question whether an officer has used excessive force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” “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.” Ibid. And “[t]he 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.” Id., at 396–397, 109 S.Ct. 1865.

Kisela v. Hughes, 138 S. Ct. 1148, 1152, 200 L. Ed. 2d 449 (2018)
In the ordinary usage of the word "objective," we tend to think something like "measurable by immutable standards" (though that's my paraphrase, not taken from a dictionary). In legal terms, all we're really talking about is "without regard to the actor's intent:"
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the 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. See Scott v. United States, 436 U.S. 128, 137–139, 98 S.Ct. 1717, 1723–1724, 56 L.Ed.2d 168 (1978); see also Terry v. Ohio, supra, 392 U.S., at 21, 88 S.Ct., at 1879 (in analyzing the reasonableness of a particular search or seizure, “it is imperative that the facts be judged against an objective standard”). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, 436 U.S., at 138, 98 S.Ct., at 1723, citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (U.S. 1989)
Now, we have to be a little careful here, for a couple of reasons. First, these are federal civil rights cases. These are not criminal cases. I got into this thread only on the issue of whether "reasonable" was an objective or subjective standard.

Second, one of the recurring arguments that I routinely heard civil rights cases is whether we're talking about a "reasonable man" standard, or a "reasonable officer" standard. Both are objective tests, but the reasonable officer has a great deal more training and experience in the use of force and police matters than the reasonable man.

Originally Posted by Aguila Blanca View Post
I respectfully disagree. The law may regard the reasonable man standard as "objective," but on a jury of twelve human beings, I respectfully submit that no two will ever agree on exactly where to draw the line between "reasonable" use of force and "unreasonable" use of force. The line isn't defined in the law, it is determined by a consensus of the jurors in each case. That is absolutely not objective.
See my comments on the definition of "objective" above.

Originally Posted by Aguila Blanca View Post
. . .And when you say that "A subjective test, depends on what that actor actually believed, what information he or she possessed, etc." -- isn't that what a determination of what a hypothetical reasonable man would have done under the same circumstances and possessing the same information is all about? . . . .
Perhaps I should have been clearer. In use of force cases, subjectivity and objectivity revolve around intent. In the civil rights context, motions for summary judgment routinely have affidavits attached, laying out exactly what an officer saw, heard, knew, etc., and then arguing what what the officer did was reasonable. Those are argued to the judge, not a jury. (Again, though, that's federal civil rights practice, not a criminal case.)

Originally Posted by Aguila Blanca View Post
. . .It might be reasonable for this hypothetical reasonable man to shoot a stickup artist who is pointing a gun at a cashier in the corner Stop-n-Rob, whereas it probably isn't reasonable for the hypothetical reasonable man to shoot a guy who is engaged in a verbal (only) dispute with a female on a street corner. The first case is fairly obvious. In the second, the defendant may have believed that the male was going to assault the female, so he shot him. The jury will then have to decide whether or not that belief was reasonable, based on the information that the defendant had available to him at the moment.
The shooter's belief may be a subjective matter, in the sense of being "internal to the shooter," but the question of whether that belief was reasonable is a separate question, tested by an objective standard.

Originally Posted by Aguila Blanca View Post
Best hypothetical: A person uses a firearm (lethal force) to defend himself under less than textbook conditions. He is charged and tried. The trial results in a mistrial because the jury can't decide whether or not a "hypothetical reasonable man" would have shot the alleged assailant under the same circumstances. If the jury can't agree on whether or not the use of force was reasonable, how can the standard be objective?

But ... the prosecutor isn't happy, so he takes it to another trial. This time the jury votes to acquit. Meanwhile, down the hall in another trial, a defendant in a mirror image case is convicted.

Objective standard? No.
Juries may not be objective, but the standard is (supposed to be). In court, I'd be looking for jury instructions that would help ensure that the standards are properly applied, or an appeal.
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
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