The ‘Reasonable Person’ Looks A Lot Like Law Enforcement. Will That Change?

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Every American law student gets to know, and usually comes to dislike, a person called “the reasonable person.” The reasonable person is everywhere: negligence cases in torts class, trademark cases in intellectual property class, self-defense cases in criminal law class. By the end of law school, I even ended up with a “reasonable person” T-shirt, which has thankfully been lost in the intervening years.

Who is this most reasonable of people? In theory, it’s just an objectively rational person placed into the subjective situation presented by the case. It seems best explained by this exchange in 2010 between a trial judge and a jury:

Jury: “Who[se] def[inition] of reasonable are we supposed to use? Our definition (jury’s) or the defendant’s in his impaired state as was described to us through his testimony?”

Trial Judge: “[R]easonableness must be judged … from the standpoint of a reasonable man in the situation of the defendant at the time under all the circumstances surrounding him.”

But it’s clear that there are various race and class assumptions baked into this standard.

An “objective” means of assessment, the way the reasonable person standard is used, “applies uniformly to all parties, regardless of their individual traits and capacities,” writes Toronto law professor Simon Stern in the book “Landmark Cases in Criminal Law.” But, he notes, “when an objective measure is rendered in a personified form, we are quickly plunged into debates about how generic the measure must be, and whether (and how) to factor in certain personal traits, such as a party’s age or mental capacity. He adds, the fact that “the reasonable person has, for most of its history, been cast as the reasonable man, helps to show how readily the personification acquires specific features that may undermine its universal application.”

“The reasonable man has been replaced by the reasonable person, but that person still functions within legal doctrines conceived by men and interpreted to fit the facts of men’s lives,” writes law professor Marina Angel in the Buffalo Women’s Law Journal. “To understand why it is sometimes reasonable for an abused woman to kill her abuser while he is asleep or otherwise incapacitated, basic criminal law doctrines do not have to be changed. They do, however, have to be applied to the facts of abused women’s lives.”

“But the equality concerns about the reasonable person in the law of provocation go well beyond gender,” writes law professor Mayo Moran in a 2010 academic paper. Profound worries are also raised regarding sexuality and ethnicity. In Australia, throughout the 1980s, courts tended to incorporate more and more attributes of the accused into the reasonable person standard, resulting in a standard that was increasingly subjective.

But in one 1990 decision, Stingel vs. The Queen, the High Court of Australia called a halt to this trend, fearing that broadening the reasonable person in this way “could undermine the very principle of equality before the law that the reasonable person standard was designed to protect.” The introduction of these constraints on the characteristics of the accused that could be built into the reasonable person standard then generated a controversy that focused sharply on what equality required. But Australian law professor Stanley Yeo criticized the Stingel reasoning, arguing that to “insist that all these different ethnic groups conform to the one standard of behavior set by the group having the greatest numbers (or holding the political reins of power) would create gross inequality. Equality among the various ethnic groups is achieved only when each group recognizes the others’ right to be different and when the majority does not penalize the minority groups for being different.”

One case in Massachusetts seeks to upend this very phenomenon. On January 9, 2017, at 7:30 p.m., two white officers were on patrol in the Roxbury/Dorchester area of Boston, a predominantly Black and heavily policed neighborhood, when shots were fired. The officers began searching for suspects. A few minutes later, they spotted a tall, young, Black man named Tykorie Evelyn walking, as they put it, briskly, by himself, with his hands in his pockets. They pulled up next to him, and Evelyn turned away from them. When one of the officers asked if he could “holler at” him, Evelyn asked why. The officer said they wanted to know if he had information about an incident, and Evelyn said no. The police kept following him. They said he appeared nervous. The officers got out of their car, Evelyn ran away, and police chased. They eventually caught up to him, commanded him to lie down, and found a gun on the ground nearby.

Evelyn is arguing in court that this stop was unconstitutional because the officers did not have reasonable suspicion to stop him. His attorney has sought to introduce testimony from an expert about whether his behavior was enough to predict whether he was carrying a weapon. Massachusetts’ Supreme Judicial Court will be asked to decide whether a judge should consider expert testimony about whether Evelyn might have been behaving a certain way out of fear of being stereotyped, rather than out of guilt. His attorney, Kathryn Hayne Barnwell, says the courts must take into account a person’s race and age when considering whether someone’s behavior was enough to create a reasonable suspicion of criminal behavior. His flight might have been simply a wish to avoid being racially profiled. The question, as reported by MassLive is: “Can the police determine what behavior gives rise to a reasonable suspicion from the perspective of a white male, or do they have to take into account the perspective of a black youth, given a history of racially biased policing?”

“Black youth have been accustomed to—and therefore expect—to be treated with suspicion by police, regardless of whether they committed a crime,” attorneys for the NAACP Legal Defense and Educational Fund and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School wrote in an amicus brief in support of Evelyn. “And Black youth are confronted regularly with the potentially deadly consequences of noncompliance, or even perceived noncompliance, with police.”

Attorneys from Suffolk County District Attorney Rachael Rollins’s office wrote in a brief that Evelyn has no factual basis for asserting that race played a part in the case.

“Black youth face persistent surveillance, violence and arrests from police, which influence how Black youth respond to police contact,” Kate Burdick, an attorney with the Philadelphia-based Juvenile Law Center, told MassLive. Courts consider how a “reasonable person” would have felt and acted under the circumstances of a police stop, and Burdick says this case gives the Supreme Judicial Court the chance to clarify that the analysis must account for the experiences of Black youth “whose interactions with law enforcement so often reflect harassment rather than safety.”

This adjustment seems particularly warranted given the way courts have bent over backward to accommodate the specific perspective of a police officer in cases where they shoot or kill civilians. The Supreme Court articulated the relevant standard in Graham vs. Connor: “The ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” The 1989 decision continued, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

This all sounds, well, reasonable, but, as Martin Kaste of NPR has stated, police have “come to count on the principle of objective reasonableness as a kind of shield against armchair quarterbacks.” Law professor David Harris said the ruling has been interpreted by courts as “highly protective of police officers.”

This is why police vigorously resisted a legislative effort to change the standard for police use of force in California. The state eventually passed a law explicitly limiting the instances when police officers can use deadly force, “changing the standard from one based on a ‘reasonable belief’ that the officer or another person is in imminent danger to one that requires police officers to use deadly force only when necessary,” writes Jane Coaston for Vox.

It doesn’t usually work that way. “’Reasonable’ isn’t the same thing as ‘typical,’” Radley Balko wrote for the Washington Post in 2015 when officers were being tried, unsuccessfully, for the death of Freddie Gray in the back of a squad car in Baltimore. “Ideally, a ‘reasonable police officer’ standard doesn’t ask jurors to pretend that they’re cops, but evolves to establish concrete, enduring limits to lethal force that both allow police to protect themselves and the public without needlessly taking lives and infringing on constitutional rights. That is, the standard should be what juries think a reasonable police officer should be.” But often, jurors are persuaded by what police authorities describe as normal and acceptable behavior, for a police officer.

Some have gone so far as to argue that the reasonable person standard just doesn’t make sense in an unequal society, where bias in the dominant group runs rampant. “Plausible ways of construing the reasonable person standard in light of implicit racial bias face either the charge of being unfair towards the biased individual, or of stigmatizing the group targeted by the bias,” write professors Jules Holroyd and Federico Picinali. “The bottom line is that insofar as the reasonable person serves as a normative ideal, this ideal is not one that can be met easily whilst our agency is embedded in unjust social relations.” It might be time to say goodbye to our most reasonable friend.