Resultant Ambiguity From the Decision in Graham

Brian Rice Opining on the Resultant Ambiguity From the Decision in Graham (Thesis Excerpt)

The impact of the decision in Graham has resulted in courts analyzing investigatory stop excessive force claims under the purview of the Fourth Amendment.[1] Specifically, because of Graham, courts now analyze these claims under the Fourth Amendment’s objective reasonableness standard.[2] Ironically, the majority in the Graham court opined about the generality of the preceding Fourteenth Amendment due process standard used in excessive force claims and indicated that utilizing the more textually replete Fourth Amendment standard would allow plaintiffs to more effectively pursue their claims.[3] The court’s rationale was that the Fourth Amendment would cause the plaintiff to specifically state the constitutional protection infringed upon by the use of force incident versus pursuing the claim under a generalized infringement criteria applicable under the due process standard.[4] While the theory the court espoused in the shift to the Fourth Amendment may have been aimed at benefitting the plaintiff, numerous courts and legal scholars have expressed concerns about confusion, ambiguity and resultant “disparate outcomes” associated with analyzing excessive force claims under the objective reasonableness standard.[5] Some scholars state that these “issues with use of force policies have not been adequately resolved by legal scholars or the U.S. Supreme Court.”[6]

Christopher Logel’s article provides another illustration of the ambiguity surrounding post Graham decision use of force policies.[7]  While the Fourth Amendment Objective Reasonableness standard requires the use of force to be objectionably reasonable under the circumstances, Logel inter alia, discusses a split in federal circuit courts as to the weight the courts will give to police department use of force policies when determining what is objectively reasonable.[8] The revelation is that some circuits will incorporate police use of force policies in their analysis.[9] However, some circuit courts hold that police policies have no bearing on what is objectively reasonable from a constitutional standpoint.[10]  To expound, some circuits have held that violations of police use of force policies are not dispositive of a Fourth Amendment violation and because of this fact; an analysis of police use of force policy is irrelevant.[11]



[1] Graham v. Connor, 490 U.S. 388 (1989).

[2] Jelani Jefferson Exum, Nearsighted and Colorblind: The Perspective Problems of Police Deadly Force Cases, 65 Clev. St. L. Rev. 495 (2017).

[3] Kathryn R. Urbonya, ARTICLE:Public School Officials’ Use of Physical Force as a Fourth Amendment Seizure: Protecting Students from the Constitutional Chasm Between the Fourth and Fourteenth Amendments, 69 Geo. Wash. L. Rev. 1, (2000).

[4] Id. at 3.

[5] Id. at 492.

[6] Jesus A. Alonso, article: how police culture affects the way police departments view and utilize deadly force policies under the fourth amendment, 60 Ariz. L. Rev. 987-1012 (2018).

[7] Christopher Logel, COMMENT: Cracking Graham: Police Department Policy and Excessive Force, 20 Berkeley J. Afr.-Am. L. & Pol’y 27-48 (2019).

[8] Id. at 27.

[9] Id. at 32.

[10] Id. at 35.

[11] Id.