The Fourth Amendment provides that a seizure must be “reasonable.” And so a citizen may file a Section 1983 or Bivens lawsuit when an arresting officer uses unreasonable force during an arrest. Unreasonable force cases are often referred to as “excessive force” cases.
What is unreasonable force? Unreasonable force is the degree of force necessary to subdue a suspect – no more, no less. Ninth Circuit Model Civil Jury Instruction No. 11.4 reads: “A law enforcement officer has the right to use such force as is reasonably necessary under the circumstances to make a lawful arrest.” In the world outside of qualified immunity, we would always leave it for juries to determine whether force was reasonable.
In a criminal prosecution for assault or homicide, self-defense is often raised as a legal defense. A defendant who asserts self-defense must establish that he used reasonable force to defend himself. Connecticut Criminal Jury Instruction 2.8-1 provides: "[B]efore a defendant uses physical force upon another person to defend [herself], [she] must have ... a reasonable belief that the degree of force [she] is using to defend [herself] from what [she] believes to be an ongoing or imminent use of force is necessary for that purpose."
Self-defense cases always go to the jury. As well, they should. After all, how can a court determine whether the force used was reasonable? In self-defense cases, context is everything.
Whether force is reasonable or not requires a painstaking look at the fact. Who said what to whom and when? Who threw the first punch? Was the punch a hard one, or soft one? Did the victim appear to be dangerous?
Reasonable force issues require one to analyze facts. Juries, not judges, have the role of fact-finding. Martin Parks Burks & Carlisle Havelock Morrissett, Pleading and Practice in Actions at Common Law § 264 (2d. ed. 1921).
In theory, then, almost no unreasonable force case would be dismissed on qualified immunity grounds. Almost no unreasonable force verdict would be overturned on appeal. Yet that is not how qualified immunity works in practice.
Instead, judges often dismiss unreasonable force cases on qualified immunity grounds. Judges often overturn a jury verdict in excessive force cases.
In Saucier v. Katz, 533 U.S. 194 (2001), the United States Supreme Court removed from the trier-of-fact some excessive force cases. In Saucier, Justice Kennedy wrote: “The matter we address is whether the requisite analysis to determine qualified immunity is so intertwined with the question whether the officer used excessive force in making the arrest that qualified immunity and constitutional violation issues should be treated as one question, to be decided by the trier of fact.” That is a obtuse way of saying: Where a question of fact predominates, how do we nonetheless remove a case from a jury’s hands?
The Supreme Court found a way. After analyzing the facts of the case – in contradiction of the common-law demand that judges decide matters of law, while leaving factual matters for the jury – the Court determined: “In the circumstances presented to this officer, which included the duty to protect the safety and security of the Vice President of the United States from persons unknown in number, neither respondent nor the Court of Appeals has identified any case demonstrating a clearly established rule prohibiting the officer from acting as he did, nor are we aware of any such rule.”
The assertion, of course, hides what the Court was doing. The Court was removing a question of fact from the jury. At the time Saucier was decided, the there was a clearly established rule that police officers may not use excessive force when effectuating arrest. Whether force is excessive or not, is of course a question for a jury.
Nevertheless, in civil rights cases, judges will often decide for themselves whether excessive force was used. Judges should be reluctant to grant qualified immunity in excessive force cases. An excessive force case is contextual and fact-bound. Fidelity to the law requires judges to resist the temptation of deciding what only a jury has the power to decide.