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Open Access Publications from the University of California

The New Dread, Part I: The Judicial Overthrow of the Reasonableness Standard in Police Shooting Cases


This Article series argues that the U.S. Supreme Court’s excessive force jurisprudence from Graham v. Connor to the present has undermined the objectivity of the reasonableness standard. In its place, the Court has erected a standard that reflects modern conservative political ideology, including race conservatism, law-and-order, increased police discretion, and the deconstruction of the Warren Court’s expansion of civil rights and civil liberties. Indeed, the Court, dominated by law-and-order conservatives, is one of the greatest triumphs of modern conservatism, which developed as a backlash against various social movements like the Civil Rights Movement in the 1960s and the spontaneous urban rebellions that characterized the decade.

Part I of this Article series examines fear from a biological, political, and sociological perspective. It highlights how most Americans impute reasonability to statistically unjustifiable perceptions of danger. Part I also examines the concept of reasonableness and analyzes the native and inevitable partiality of the standard. Finally, Part I explores the relationship between the social value of unarmed victims of deadly force and the perceived reasonableness of an officer’s use of such force. It posits an inverse relationship between the perceived social status of the victim and the degree of statistical unreasonableness the law is willing to tolerate.

The lower the victim’s rank on America’s racial hierarchy—the hierarchy created by nineteenth century pseudo-scientist Samuel Morton to justify slavery—the more likely decisionmakers are to find a statistically unjustifiable fear to be reasonable. African Americans are ranked the lowest. The same presumption of Black inferiority that Taney so boldly proclaimed in Dred Scott lies covertly beneath the contemporary Court’s decisions involving unarmed police killings.

Part II of this Article series discusses the sea change in excessive force standards from the common law’s reasonableness standard to the current “rationalized fear” or “new dread” standard. Part II chronicles the change from different social, institutional, and legal perspectives, which have been factors influencing the sea change. These factors include: (1) the erosion of the common law right to resist an unlawful arrest; (2) the evolution of the modern police force; (3) the development of the law-and-order Supreme Court after the social tumult in the 1960s and the simultaneous development of radical social conservatism; (4) the Court’s holding in Graham v. Connor which was the first to express the shift legally; (5) the culture of police accountability encouraged by the law-and-order Supreme Court; and (6) the judicial creation and expansion of the qualified immunity doctrine. Part II exposes how the new dread standard operates by providing evidence that distills the current, amorphous excessive force rule into an articulable legal standard reflecting its true effect and intent.

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