Opinion

What's 'reasonable'? For police, the answer is often their legal defense.

How an entirely subjective experience guides our legal system

I like to think I'm a reasonable person. I'm sure you do too. In fact, very few would decline to claim reasonability for their own. Thinking oneself (at least reasonably) reasonable is a lot like thinking one's own beliefs are true: If you didn't think it, you'd change. If you became convinced your beliefs were false, you'd adopt instead those you'd newly judged true. Likewise, if you came to suspect you weren't terribly reasonable, you'd try to take a more reasonable stance. For each, the shift feels so necessary it's barely even a conscious choice.

So we all think we're reasonable, but we hardly all agree on what "reasonable" means. Reasonability is in the eye of the beholder — which is a problem in a country where "reasonability" and "reasonable belief" are not only comfortable ways to describe ourselves and our thinking but legal terms whose meaning can steer the course of people's lives.

Consider the tragic case of Hunter Brittain, the 17-year-old Arkansas boy who was killed by a sheriff's officer, Sgt. Michael Davis, during a traffic stop last week. According to Brittain's family and another teenager who was with him when he was fatally shot, Brittain had driven to an auto shop owned by a family friend very early Wednesday morning because he'd been having trouble with his truck. He wanted to fix it overnight so he could get to his construction job at 6 a.m. that morning. The truck wouldn't shift into park, the friend said, so when Davis pulled into the shop lot behind the broken vehicle, Brittain reportedly reached into the back of the truck to get a large jug (of oil or antifreeze — early reports vary) he could wedge behind a tire to keep the truck from rolling into the officer's car. "Before he could get there, he was shot in the neck," Brittain's uncle told Vice News. "We can't begin to understand why [Davis] would take a shot at that boy." According to the teenage friend, Davis didn't even speak to Brittain before he opened fire.

Body camera footage of the shooting has yet to be released, though the county sheriff has said he supports releasing it as part of the state police investigation. As of this writing, however, little has been revealed — to the public, or to the boy's family. ("I guess I don't trust any police right now," said his grandmother, who was his guardian. "Won't nobody tell us anything. The body hasn't been released. None of the information has been released to us. We've been told a lot of different things.")

Still, if the spare story we've heard is right, a likely legal defense for Davis — whether he's charged or only subjected to departmental discipline — has already emerged: reasonable belief. Arkansas law, as Scott Shackford reports at Reason, permits "the use of deadly force as self-defense in situations where a person 'reasonably believes' the other person is about to commit a violent felony or use unlawful deadly force. There is a duty to retreat in the law, but law enforcement officers are specifically exempt."

And here's the rub: What's reasonable? To my mind, there's nothing reasonable about what Davis did. Even if he were worried Brittain was reaching for a weapon (and, so far, we know of no specific cause for such a concern beyond the odd hour of the encounter), to shoot the kid without warning seems unreasonable to me. This isn't even analogous to the police killing of Ma'Khia Bryant in Ohio earlier this year. There, an officer fatally shot the 15-year-old girl as she lunged at another girl with a knife. As complicated as that situation was, the case for reasonability rested on evidence that doesn't appear to be present here: The weapon existed and was clearly visible; the officer shouted warning; another child's life looked to be in imminent danger. Per current reporting, Brittain was unarmed and unthreatening, yet he was summarily shot. I find that deeply unreasonable,

But my belief isn't legally relevant. The issue is what Davis believed. That Arkansas law says Davis was "justified in using deadly physical force upon [Brittain] if [Davis] reasonably believe[d]" the teenager was going to commit a violent felony, including against Davis himself. "[O]ne of the ways that law enforcement officers are able to excuse killing an unarmed person is by arguing that they feared they were in danger, even when the facts don't support it, and that this fear was nevertheless reasonable given the circumstances," Shackford observes. And they often come to that "reasonable" belief, he adds, via "warrior cop" trainings which teach police to take an antagonistic position toward the communities they serve, casting the public as a hostile population.

Jeronimo Yanez, the Minnesota officer who killed Philando Castile in 2016, was a product of one such training. As The New York Times reported at the time, the "Bulletproof Warrior" program he attended issued a booklet that "portray[ed] a world of constant and increased threat to officers" and spoke of "predators," "adversaries," and "combat efficiency" for officers of the peace. "[T]he instructors urged the law enforcement officers in the hotel conference room to make the decision to shoot if they ever feel their lives are threatened," reported the Minneapolis StarTribune of the training. "Videos of bloody shootouts between police and civilians emphasized a key point: Hesitation can kill you."

Yanez didn't hesitate to shoot Castile, a beloved elementary school cafeteria worker, as he sat at a traffic stop with his girlfriend and her little girl — and he no doubt thought that was reasonable. He was acquitted after his lawyers argued he could "reasonably infer" Castile was "stoned" and would therefore put Yanez's life in peril.

Cases of police violence cast a sharp light on our different ideas of reasonability, but they aren't the only place where this legal standard applies. Reasonable belief can show up in defamation suits, contracts, duty to aid laws, Fourth Amendment cases (the lawfulness of some police searches can turn on officers' "reasonable" suspicion), harassment allegations, regulation of speech and other rights protected by the First Amendment (e.g. time, place, and manner restrictions on noisy political rallies), and private use of force in self-defense.

Maybe when these laws and others that employ a reasonability standard were passed, a general consensus around what's reasonable — "just, rational, appropriate, ordinary, or usual in the circumstances" — seemed more attainable. The attraction of the idea of reasonability when such consensus is possible is obvious: It makes space in our legal system to handle unforeseen and unprecedented incidents while maintaining the predictable, stable rule of law required for a functional society. As Supreme Court Justice Oliver Wendell Holmes Jr. argued in an 1881 lecture, "when men live in a society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary [in the rule of law] for the general welfare."

But what if that average isn't clear? What if collective opinion doesn't form a normal distribution, a bell curve with a nice, obvious median where the legally "reasonable person" resides? What if it's a multimodal distribution, with two or three or more widely held ideas of what's reasonable in a given situation? What if — as our media environment fractures, and we group ourselves with likeminded people, and our ability to understand different thinking atrophies — we all believe we're entirely reasonable but can't agree on the nature of reasonable belief?

The Hunter Brittain case may give another bracing view of the dissent, discontent, and disquiet that comes when the legal system calls "reasonable" what many believe to be unreasonable indeed.

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