By Marek Mazurek | South Bend Tribune
Feb. 2, 2021
This article is no longer available on the South Bend Tribune website.
SOUTH BEND – Some members of the public say they’re still concerned about the city’s latest draft of a South Bend Police Department use of force policy that will soon be before the Board of Public Safety for a vote.
Members of the group Faith in Indiana say the new policy leaves too much to an officer’s discretion because the proposal is still based on an “objective reasonableness” standard, which is used in court to determine whether an officer can be held liable for excessive force.
South Bend Mayor James Mueller said the standard used in the policy reflects legal precedent and must be adhered to, even if he would like to see the precedent updated to reflect modern policing.
“I can understand that mayor’s position, but I want him to go forward,” said Alfred Guillaume, a member of Faith in Indiana. “We would like to have a higher standard for police to avoid individualistic reasonableness that can be misinterpreted.”
The “objective reasonableness” standard stems from the 1989 U.S. Supreme Court case Graham v. Connor. The decision established that when determining whether a certain action constitutes excessive force, the force in question must be judged from the perspective of a reasonable officer placed in the same or a similar situation, without the benefit of hindsight. Since then, the objective reasonableness clause has become the legal standard used in court to determine whether an officer can be held liable.
The city’s proposed policy states officers “may use objectively reasonable force” when carrying out their duties and that objective reasonableness, “must be judged from the perspective of what a reasonable officer would use under the same or similar situation at the time of the incident.”
“This is not like the federal minimum wage where states or cities could have a higher standard,” Mueller said. “This is basically the standard for how use of force is to be judged in the judicial system.”
Mueller added the Graham v. Connor ruling “could use some updating” considering it was issued more than 30 years ago.
For members of Faith in Indiana, the objective reasonableness standard leaves too much leeway for officers who can say they felt threatened to justify using force.
“It appears an officer simply just needs to say he was afraid for their life, and to me and many others, that’s not good enough,” said Pastor Claval Hunter of Berean Seventh-Day Adventist Church.
Guillaume and Hunter are particularly concerned about the objective reasonableness standard when applied to officers using deadly force, where they feel a higher threshold is warranted.
“Lethal shall only be used when necessary as a last resort in extreme life or death circumstances and not just when deemed reasonable,” Hunter said. “That language has to be clear.”
Josh Morgan, vice president of the Fraternal Order of Police, said moving away from the precedent of Graham v. Connor would lead to the officers being judged in hindsight, instead of by what was known at the time of the incident.
“I think bringing hindsight into it is a bad thing, because we do have to make split-second decisions,” Morgan said.
While Mueller’s administration does not see Graham v. Connor as a legal “floor,” some national organizations have advocated for policies that go beyond the precedent’s requirements.
The Camden, N.J., police department updated its use of force policy in 2019, saying the department, “aspires to go beyond Graham and its minimum requirements.”
The Police Executive Research Forum, a nonprofit group focused on policing and criminal justice research, wrote in 2016 that the Graham v. Connor ruling does not provide departments sufficient guidance on creating use of force policies and urged law enforcement agencies to set regulations that deem certain use of force situations to be in violation of department policy even if they would be legally permissible.
Muller noted South Bend’s proposed use of force policy includes language advocated for by Faith in Indiana and other members of the community that force be used only when necessary and that force should be proportional to the threat an officer faces.
Mueller said he hopes the Board of Public Safety approves the use of force policy revisions at its February meeting.