Reasonably Unreasonable: American Use of Force Jurisprudence and Police Impunity
| Author | Anthony M Triola |
| DOI | http://doi.org/10.1177/09646639221102540 |
| Published date | 01 April 2023 |
| Date | 01 April 2023 |
| Subject Matter | Articles |
Reasonably Unreasonable:
American Use of Force
Jurisprudence and Police
Impunity
Anthony M Triola
University of California, Irvine
Abstract
This paper tracks Use of Force jurisprudence from the seminal cases of Graham
v. Connor and Tennessee v. Garner to our contemporary moment. I am interested
here in assessing the evolving meaning of “reasonableness”over time, especially as it
relates to legal mechanisms such as qualified immunity which enable agents of the
state to utilize excessive force with impunity. The logic of these cases is contextualized
against the contemporary moment of reckoning with the realities of state-sanctioned
anti-black violence, something from which a theor y of reasonability cannot be cleanly
separated.
Keywords
use of force, objective reasonableness, critical theory, policing, afropessimism
Introduction
Contemporary incidents of police violence against African American men and women as
well as other minority groups have spurred contentious political conversations centering
on police brutality, and more generally, the (il)legitimacy of (racialized) state violence.
The names and stories seem to have grown countless, as these instances of use of
force have been projected onto intense political debate as well as media-fueled spectacle.
In the wake of the killing of Michael Brown by Ferguson Police Department (FPD)
officer Darren Wilson, the U.S. Department of Justice (DOJ) launched an investigation
Corresponding author:
Anthony M. Triola, University of California, 2354 Social Ecology II, Irvine, CA 92697, USA.
Email: atriola@uci.edu
Article
Social & Legal Studies
2023, Vol. 32(2) 257–272
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09646639221102540
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of the FPD and subsequently released a 105-page report detailing what they viewed as
definitive patterns of excessive force as well as other constitutional violations being per-
petuated by law enforcement in the city of Ferguson, Missouri. These were being dispro-
portionately perpetuated against minorities as well as people with intellectual disabilities.
The DOJ claimed the FPD as well as corrections officers in the city systematically apply
force in a manner that is not only unnecessary, but also intended to be punitive or intimi-
dating to detainees (United States Department of Justice, 2015). Five years later, follow-
ing the killings of George Floyd and Breonna Taylor, the urgency of addressing the
interrelated problems of antiblackness and excessive state violence became even more
apparent. These incidents spurred widespread protests which were met with a doubling-
down of police violence. During a global pandemic, crowds of protestors were “dis-
persed”using tear gas, a known tussive agent, among other things.
1
This incessant repe-
tition of violence, both in the initial instance as well as in response to the reactions it
elicits, underscores the importance of interrogating two inter-related political and
ethical issues: the permissibility or normality of excessive violence against humans at
the hands of state actors and, more pointedly, the degree to which this violence is insep-
arable from the antiblackness that underwrites much of America’s social and legal land-
scape (see Fanon, 2008; Martinot and Sexton, 2003; Wilderson, 2010).
The long fuse of this violence has been heavily studied by social scientists as well as
legal scholars. Critical scholars of sociology and law have critiqued the American legal
system for its involvement in racialized forms of social control through institutionalized
practices which emanate from the time of slavery. The problem of mass incarceration has
been characterized as one instantiation of this historical process, as a collection of social
actions that perpetuate the widespread round-up and confinement of black males, effect-
ively conflating the social categories of “black”and “criminal”through institutionalized
practices of social domination (Alexander, 2010; Wacquant, 2000). As a problem of the
law, the historical connections between slavery and criminality enshrined in the 13
th
amendment of the U.S. Constitution, which abolished slavery except for as punishment
for a crime, have been well-documented (Davis, 2003). Fundamental to these issues is
the way in which (racialized) state violence more generally inscribes itself into the
logic of the law and what it considers to be “reasonable”actions. When use of force jur-
isprudence at the level of the United States Supreme Court (hereafter USSC) is analyzed,
it is striking how the law’sfictional metric of “objective reasonableness”not only fails to
curtail police violence, but also plays a part in reproducing the very logic which makes it
permissible.
The logical embeddedness of gratuitous violence to the paradigm of legal reasonable-
ness effectively renders the law endogenous to, or interdependent with, the imperatives of
policing (Edelman et al., 1999; Obasogie and Newman, 2019). This endogeneity is
undergirded by a broader problem raised by Martinot and Sexton (2003), the impossibil-
ity of “non-fraudulent”ethics in a society which structures its ethical discourse around a
fundamental (perhaps willful) ignorance of the violence it perpetuates daily. The expan-
siveness of police discretion in terms of the ability to deploy a wide variety of actions
within the “use of force continuum”under many different circumstances is notable.
2
Use of force jurisprudence as a result comes to resemble very closely the atmosphere
of “police impunity”Martinot and Sexton (2003) describe in which the police are “a
258 Social & Legal Studies 32(2)
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