Reasonable Belief
By Albert B. Kelly
In the past few weeks, the New Jersey Office of the Attorney General issued updated guidance as it relates to police and use of force. The 28-page document is detailed and covers many areas. As a civilian with simple ideas on use of force, I was surprised at how lengthy it is and the level of detail involved. It is a good document, but like anything that seeks to define and organize something that occurs in an instant and is all about adrenaline, emotion, instinct, and fear, it’s necessarily clinical.
To use one example, the guidance rightly spells out that officers should use “the least amount of force that is objectively reasonable, necessary and proportional to safely achieve the legitimate law enforcement objective under the circumstances.” That might be easy enough to apply in some situations and certainly in hindsight, but maybe not so much in the heat of a moment.
This is worth noting because in this same document, the guidance discusses “reasonable belief” which is defined as “an objective assessment based upon an evaluation of how a reasonable officer with comparable training and experience would react to, or draw inferences from, the facts and circumstances confronting and known by the officer at the scene.”
The hardest parts of this come down to “objective” and “reasonable”. The idea of objective information makes me think of such fields as math and science and the idea that there can be a given set of facts or data that everyone would agree is true. But even here in an age of “alternative facts” and at a time when experts and authorities are dismissed as having an agenda or being part of a deep state, I’m not so sure “objective” is available to us anymore.
Not to beat a dead horse, but as I write this, ICU beds are filling up around the country and the body count is rising due to Covid-19, yet we remain as divided as ever and if we can’t seem to agree that we’re in the midst of a global pandemic and what measures to take to control it how much less are we going to be able to get to “objective” when it comes to something like use of force?
That leaves us with an even weaker link which is “reasonable belief”. Discussions about “reasonable belief” can be confined to a given situation, but here I am thinking about what one person or group reasonably believes about another. To someone who believes, whether on the tip of the tongue or deep beneath the surface, that people from one racial or ethnic group are inherently more dangerous or violent than people of another group, then employing whatever amount of force is used might well seem “reasonable” no matter the circumstance.
It is true that the guidance addresses this straight away when it says “In carrying out their duties as guardians of public safety, officers shall at all times treat every person equally without regard to the individual’s actual or perceived race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability, nationality, familial status, or any other protected characteristic under N.J.S.A. 10:5-1 et seq.”
But I suspect that the issues playing out on our streets aren’t due to a lack of guidance or even training, but issues of screening. I say that because I am not at all sure that training can overcome a lifetime of believing that this group or that group is inherently more dangerous or violent or guilty than another. In the heat of the moment what kicks in is someone’s “reasonable belief” about the world and the people in it no matter how reasonable or unreasonable. It’s about what someone believes when in a resting position.
“Reasonable belief” in the context of a given moment is a weak link because I am fairly certain that in many of the instances we’ve seen of excessive force and deadly force over the last few years, those involved believed the force they used was “reasonable” and necessary not so much because of what was happening but because of who was involved.
If there are ways to drill down to someone’s “reasonable beliefs” in the broadest sense prior to them taking on this most difficult job, it might go a long way toward eliminating the tragedies that have been destroying this part of our social fabric.