When the chaos of the moment subsided, it became clear that Augustus had not been reaching for his gun; he had been reaching for his FOID card. In the aftermath of Augustus’s killing, the police officer who shot him would cite court precedent that has become common parlance when discussing whether an officer’s use of force was “objectively reasonable”: The officer had to make a “split-second decision” in response to an imminent risk of bodily harm to himself. See Jamie Kalven & Eyal Weizman, How Chicago Police Created a False Narrative After Officers Killed Harith Augustus, The Intercept (Sept. 19, 2019). Augustus was carrying a holstered firearm and a reasonable officer in the shooting officer’s position could have believed that they needed to make a split-second decision to use deadly force in self-defense. Id.
The officer’s justification comes from well-established Court precedent in Graham v. Connor where the Supreme Court outlined the objective reasonableness test. 490 U.S. 386, 396 (1989). This test is used to determine if a police officer’s use of force violates the Fourth Amendment’s protection against unreasonable seizures—and emphasizes that this standard must take into account “the fact that police officers are often forced to make split-second decisions . . . about the amount of force necessary in a particular situation.” Id. at 397. In the Court’s view, a reasonable officer is often forced to make in-the-moment, split-second decisions, and the Court sought to avoid ex post, hindsight analysis of the reasonableness of these decisions. Since Graham, the split-second decision has become an essential tool for courts reviewing police excessive-force allegations, even though courts rarely consider whether such decision making was reasonable or necessary.
There has been much criticism lodged against the split-second decision-making doctrine for its failure to account for the ways in which an officer’s own conduct can create a situation in which that officer must make a split-second decision to use force. See Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of Circumstances Relevant to Assessing the Police Use of Force Against Emotionally Disturbed People, 34 Colum. Hum. Rts. L. Rev. 261 (Spring 2003); Jack Zouhary, A Jedi Approach to Excessive Force Claims: May the Reasonable Force Be with You, 50 U. Tol. L. Rev. 1 (Fall 2018); Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-escalation, Preseizure Conduct, and Imperfect Self-defense, 2018 U. Ill. L. Rev. 629 (2018). These arguments are compelling—an officer’s pre–use of force conduct certainly impacts whether use of force is reasonable and necessary—but they beg a broader question: How can courts rely so heavily on the presence of a split-second decision when determining if police use of force is reasonable when such a concept is not always—or even often—objectively reasonable itself?
These arguments, and the killings of people such as Harith Augustus, show that split-second decision making is often compelled by a specific officer’s behavior and also lacks support in policing best practices. As a result, officers can both (1) contribute to the situation in which they are required to make a split-second decision and (2) then rely upon an ex post justification—citing the need for a split-second decision—for an otherwise unreasonable use of force. Because officers can create a situation in which a split-second decision is necessary and use a split-second decision to justify the use of force as reasonable—and because the science behind split-second decision making is dubious at best—courts must be careful not to let the doctrine of split-second decision making supplant a fulsome analysis that considers the totality of the circumstances.
The Objective Reasonableness Standard Is Designed to Preclude Hindsight Justification of Police Use of Force
The Court first introduced the standard for analyzing the constitutionality of police use of force in Tennessee v. Garner. 471 U.S. 1 (1985). In deciding if an officer used excessive force when he shot and killed a fleeing, unarmed suspected burglar, the Garner Court considered whether a reasonable officer in the on-the-scene officer’s position would have reasonably believed they needed to use deadly force. Id. at 13–14. In other words, the Court asked if the amount of force used by the officer (i.e., deadly force) was objectively reasonable given the nature of the encounter (i.e., a fleeing, unarmed, suspected felon).
The objective reasonableness standard in the use of force context is consistent with much of the Court’s other Fourth Amendment jurisprudence. In Terry v. Ohio, the Court held that some reasonable amount of coercion is often necessary when an officer makes an investigatory stop or arrest. 392 U.S. 1, 22–27 (1968). And in Scott v. United States, the Court held that whether the use of a wiretap was an unconstitutional Fourth Amendment violation turned on the objective reasonableness of the intrusion and not on the subjective intent of the officer. 436 U.S. 128, 137 (1978). But unlike much of the Court’s Fourth Amendment doctrine, in the use of force context, the Court has subsequently added unique elements that in practice invite lower courts to consider subjective facts.
In Graham the Court further defined its objective reasonableness standard, holding that courts must consider “whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” 490 U.S. at 397. To avoid ex post analysis of police use of force, the Court explained that “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.” Id. (citing Terry, 392 U.S. at 20–22). The Graham court explains that “proper application” of the objective reasonableness standard “requires careful attention to the facts and circumstances of each particular case.” Id. at 396. Or, as the Court put it in Garner, the question of objective reasonableness must also consider “whether the totality of the circumstances justifie[s] a particular sort of [use of force].” Garner, 471 U.S. at 8–9. A court must consider an officer’s use of force in the context of the broader encounter between the officer and the victim in order to determine if the use of force was reasonable.
Citing disputed language in Graham, the circuits are split over whether pre-seizure officer actions are included in the “totality of the circumstances.” See Weimann v. McClone, 787 F.3d 444, 448–51 (7th Cir. 2015) (holding that an officer’s use of deadly force following the forcible entry of a room was unreasonable because the officer created the need to use force); compare to Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (holding that an officer’s actions prior to the use of force are irrelevant to the objective reasonableness of their conduct). The Supreme Court, in County of Los Angeles v. Mendez, attempted to clarify the doctrine when it held that an officer’s reasonable use of force does not become unreasonable just because the use of force transpired following or as a result of an officer’s previous Fourth Amendment violation. 137 S. Ct. 1539, 1543–44 (2017).
In Mendez, police officers were searching for a parolee-at-large, Ronnie O’Dell. Id. at 1544. When searching O’Dell’s property, they entered a shed without a warrant and without knocking and announcing themselves. Id. When the officers entered the shed, they took Mendez, who had been napping, by surprise. Id. Mendez had been sleeping holding a BB gun, and when he awoke, he went to place the gun on the ground. Id. at 144–45. The police, believing Mendez to be posing a threat, shot him. Id. The Ninth Circuit held that the officers had provoked the circumstances prompting their use of force by violating Mendez’s rights when they entered his shed without a warrant. Mendez v. Cnty. of Los Angeles, 815 F.3d 1178 (9th Cir. 2016). The Ninth Circuit rule—which was rejected by the Court—had first required a decision showing that the use of force was reasonable and only then were prior rights violations considered. Mendez, 157 S. Ct. at 1546. The Court—in rejecting the Ninth Circuit’s rule—made clear that an otherwise reasonable use of force cannot be made unreasonable on the basis of prior rights violations, and through this holding limited the ways in which lower courts can consider whether an officer’s actions were reasonable.
As a result, arguments attacking police use of force on the basis of a totality of the circumstances face an initial hurdle of the unsettled nature of just how total the totality of the circumstances standard is. Scholars have since presented a litany of possible ways courts can consider officer provocation while following Mendez’s holding. See Ryan Hartzell C. Balisacan, Note, Incorporating Police Provocation into the Fourth Amendment “Reasonableness” Calculus: A Proposed Post-Mendez Agenda, 54 Harv. C.R.-C.L. L. Rev. 327 (2019) (explaining that litigants can rely on a proximate cause theory to show that a police officer’s provocative acts proximately caused the injuries to the plaintiff); Katherine Macfarlane, Foreseeable Police Shootings, 119 Colum. L. Rev. F. 283 (Dec. 6, 2019) (arguing that proximate cause theories offer litigants the best case in challenging police use of force because foreseeability has become a key element in analyzing use of force cases).
The unsettled and unclear nature of the totality-of-the-circumstances test means that lower courts are often stretched to find meaningful ways to determine if an officer’s use of force was reasonable, and this has resulted in lower courts’ overreliance on “flags” for reasonableness. The most glaring—and arguably most problematic—of these flags is rooted in the idea that police officers often must make split-second decisions, an idea that has come to dominate courts’ analysis when considering the reasonableness of police use of force.
Courts Are Loathe to Second-Guess Officers’ Split-Second Decisions, but Split-Second Decisions Are Often Used in Hindsight to Justify Uses of Force
Though Garner mentions the fact that officers sometimes must make split-second decisions, 471 U.S. at 20, it is in Graham where the Court explains that courts must bear in mind the realities of split-second decision making when considering if uses of force are reasonable. 490 U.S. at 397. But the Court offers no evidence to support its claim that such split-second decisions are either reasonable or objectively necessary, nor does the Court explain what constitutes a split-second decision. Without this guidance from the Court, lower courts risk reifying split-second decision making as a natural and necessary part in every instance of reasonable police use of force. As a result, courts across the circuits have new jurisprudential doctrine: the split-second decision-making doctrine. And they have made this doctrine the fulcrum on which objective reasonableness often turns, without considering whether the application of this doctrine is itself reasonable.
In Nelson v. City of Battle Creek, Michigan, an armed suspect was stopped by the police and told to remove his hands from his pockets and put them in the air. 802 F. App’x 983, 984 (6th Cir. 2020). The suspect then removed his hands from his pockets, threw a gun on the ground, and put his hands in the air. Id. Immediately, the officer shot and killed the suspect despite the victim’s surrendering posture and his weapon laying on the ground next to him. Id. The court explained that “an officer’s employment of deadly force in split-second decisions when faced with a threat of serious injury or death should not be questioned” and found the officer’s actions reasonable. Id. at 988.
In Bingue v. Prunchak, an officer injured a suspect during a high-speed chase when the officer slammed his police cruiser into the suspect’s car to end the pursuit. 512 F.3d 1169, 1171 (9th Cir. 2008). The Ninth Circuit held that whether a police encounter is an “emergency” or “nonemergency” situation has no effect on whether an officer has been required to make a split-second decision. Id. at 1176. The court decontextualized the split-second decision by refusing to consider whether the decision was made in an emergency. The court justified its decontextualization, explaining that “split-second decisions . . . should not be questioned.” Nelson, 802 F. App’x at 988. Split-second decisions are abstracted from the broader use of force context and placed upon a legal pedestal.
Other circuits have similarly followed suit in adopting the split-second decision doctrine. In Siler v. City of Kenosha, a case in which an officer shot and killed a Black man following a foot pursuit, the Seventh Circuit held that the officer’s use of force was objectively reasonable because “encounters in the field require officers to make split-second decisions of enormous consequence.” 957 F.3d 751, 759 (7th Cir. 2020). In Costello v. Town of Warwick, a person was shot and killed by the police while attempting to free his car, which had been pinned in by police cruisers. 273 F. App’x 118, 120 (2d Cir. 2008). The Second Circuit found, in Costello, that an officer making a split-second decision might reasonably base a use of force decision on the belief that the victim’s behavior could have harmed a fellow officer on the scene, even if no officer was actually injured. Id. And in Sauers v. Borough of Nesquehoning, the Third Circuit held that an officer who injured a person when he collided into the person’s car during a high-speed chase used reasonable force because, when responding to emergencies, “officers must make split-second decisions to pursue fleeing suspects.” 905 F.3d 711, 723 (3d Cir. 2018). In each circuit, courts apply the split-second decision-making doctrine in a way that makes it the essential tool for determining the reasonableness of an officer’s use of force.
The heralding of the split-second decision-making doctrine and its application in ex post judicial review of police use of force even occurs in Supreme Court decisions. In Mullenix v. Luna, an officer shot at a fleeing vehicle despite instructions from a police supervisor to “stand by” and wait for the driver to hit the spike strips that had been laid out to apprehend him. 577 U.S. 7, 9 (2015). The shooting officer struck the driver four times in the chest and killed him. Id. Both the district court and the court of appeals found that the officer’s decision had not been a split-second one: The officer had been warned to stand by, he had time to discuss with a fellow officer how and where to aim his firearm, and the driver was not driving in a way that endangered the public. Id. at 11. But the Supreme Court thought otherwise. Reconstructing the facts, the Court held that several factors justified the officer’s split-second decision to use force: the fleeing driver threatening to harm the police, the speed of the vehicle, and the short distance between the officer and the approaching vehicle. Id. at 13. Given these factors the Court held that the officer’s use of force and split-second decision making were reasonable. Id.
Whether use of force is reasonable and whether the use of force requires split-second decision making are both fact-intensive questions, and the fact-intensive nature of these questions reveals the danger of allowing the doctrine of split-second decision making to supplant other tests in determining objective reasonableness. The relationship between a split-second decision and objective reasonableness is one of circular reasoning: It is assumed that a reasonable officer must make split-second decisions, and the fact that a split-second decision was made qualifies an act as reasonable. The Mullenix dissent recognized this logical failing, explaining that “[t]he majority recharacterizes [the officer]’s decision to shoot at Leija’s engine block as a split-second, heat-of-the-moment choice . . .” despite facts to the opposite. Id. at 25 (Sotomayor, J., dissenting). Officers no longer need to show that their use of force was objectively reasonable; they only need to show—or in some cases merely state—that they made a split-second decision.
Reasonable observers can debate whether Officer Mullenix’s decision was one made in a split second, but the ex post analysis this requires reveals the trouble that arises when one wishes to reconcile an objective reasonableness test with a determination about whether a decision truly was made in a split second. Too often the existence of a split-second decision is used as an ex post justification for use of force, but at no time does a court consider if the decision making itself was objectively reasonable. Take again, for example, the case of Harith Augustus: Was the decision to shoot Augustus a split-second decision that a reasonable officer would have needed to make? Or was the officer’s shooting reasonable because it was made on the basis of a split-second decision? If the former is the framing of the question, then the objective reasonableness test seems to be in application. But if the latter is the framing of the question, then a court is using ex post analysis to decide reasonableness. In this way, it seems that the split-second decision-making doctrine is reliant on the “20/20 vision of hindsight” analysis the objective reasonableness test was designed to avoid. Graham, 490 U.S. at 396.
The Nature and Function of the Split-Second Decision Make It Incommensurable with an Objective Reasonableness Standard
Michael Avery, in his 2003 article on police interactions with individuals experiencing mental health crises, highlights the tension in courts’ use of the new split-second decision-making doctrine: “Reliance on the need for split-second decisions is highly questionable when the actions of the officers have created or enhanced the likelihood of a need for rapid action.” Avery, supra, at 321. This tension becomes more acute when police trainings are brought into the discussion: Many police trainings and policies teach officers to proceed with a plan when confronting suspects, think through potential outcomes, and proceed cautiously in nearly all situations. Id. In other words, police departments counsel against the split-second decision making that has weaseled its way into its own doctrinal context. See, e.g., Baltimore Police Dep’t, Policy 1115, Use of Force, at 1 (Nov. 24, 2019), ( “Members shall use De-Escalation Techniques and tactics to reduce any threat or gain compliance to lawful commands without the Use of Force or with the lowest level of force possible. Members shall not do or say anything that escalates an encounter unless necessary to achieve a lawful purpose.”); Press Release, L.A. Police Dep’t, Policy on the Use of Force—Revised (June 29, 2020), (“[O]fficers shall use techniques and tools consistent with Department de-escalation training to reduce the intensity of any encounter with a suspect and enable an officer to have additional options to mitigate the need to use a higher level of force while maintaining control of the situation.”).
In light of these policies and trainings, the reification of the split-second decision and assumption that an objectively reasonable officer “must make split-second decisions in carrying out their duties” is at least questionable, if not outright false. Graham, 490 U.S. at 396–97. This inconsistency comes more clearly into focus when one considers that the Supreme Court itself has stated that “[a]ctual [police] departmental policies are important” when determining if an officer’s actions were reasonable. Garner, 471 U.S. at 19. Given this judicial deference to police department policy, it is surprising that courts have not begun to find split-second decision making unreasonable in more contexts.
Additionally, there is significant psychological and scientific research that calls into question the widespread acceptance of the maxim that police officers are often forced to make split-second decisions. Policing researchers have shown through empirical studies that there are concrete steps—such as how an officer points the muzzle of their weapon when confronting someone—that can significantly decrease the chances of making an incorrect split-second decision. Paul L. Taylor, “Engineering Resilience” into Split-Second Shoot/No Shoot Decisions: The Effect of Muzzle-Position, 24 Police Q. 185 (Sept. 2020). Psychologists have shown that reliance on split-second decisions can magnify racial biases in which officers are more likely to believe they have seen a weapon when someone is of a certain race. B. Keith Payne, Weapon Bias: Split-second Decisions and Unintended Stereotyping, 15 Current Directions in Psych. Sci. 287 (2006). And in contexts outside of policing, neuroscientists have developed training mechanisms that can help individuals faced with split-second decisions focus their brains such that they avoid making mistakes or over-correcting. Sameer Saproo et al., Neural Mechanisms Underlying Catastrophic Failure in Human–Machine Interaction During Aerial Navigation, 13 J. Neural Eng’g 066005, at 1 (2016). The science supports police departments’ use of force policies: Split-second decisions are not as necessary or common as the case law would lead one to assume. Split-second decisions can be avoided and trained away, and more often than not reflect serious racial biases. Rather than taking as given the necessity for split-second decisions, courts should be actively questioning and discouraging such conduct in the face of damning evidence of its ill effects.
The same courts that use the split-second decision-making doctrine as a litmus test for objective reasonableness—despite police department policies—nonetheless emphasize the need for officers to use care and caution when using force. See Mullins v. Cyranek, 805 F.3d 760, 766 (6th Cir. 2015) (“[T]he fact that a situation unfolds quickly does not, by itself, permit [officers] to use deadly force”); Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009) (“In light of the fact that [the police officer] testified that he had ample time in which to come around from the driver’s side of the car to the passenger’s side, there is nothing to indicate that he was faced with the need to make any split-second decisions.”); Ford v. Childers, 855 F.2d 1271, 1276 n.8 (7th Cir. 1988) (“[T]he officers’ split second decision to use their weapons, after twice warning the suspect, was objectively reasonable under the circumstances.”) (emphasis added). In Mullins, Brown, and Ford, each of the courts lamented the need for police officers to use care and caution but nonetheless found the officers’ actions reasonable by applying the split-second decision-making doctrine to the facts of their respective cases. In each of these cases, the split-second decision acted as a trump card with courts failing to—or choosing not to—balance the split-second decision against the officer’s care and concern in approaching the situation.
As Avery points out, an officer’s belief that they were required to make a split-second decision can often be seen as an after-the-fact rationalization of their use of force, especially when their actions contributed to the incident that ultimately required the use of force. Avery, supra, at 321. The allowance of such an ex post rationalization not only prevents police departments from using policy to train against split-second decision making, it also distorts the court’s own “totality of the circumstances” doctrine. Id. That is, “[r]ather than judging the use of force in the more appropriate matrix of the totality of the circumstances, the urgent perceptions and fears of the officer at the precise instant force is used become controlling factors.” Id.
Split-second decision making has become such an assured defense for police officers—and is so respected by courts—that when raised as a defense to an unreasonable use of force claim, courts seem to forgo the totality of the circumstances doctrine, instead adopting this new “split-second decision making” doctrine. See, e.g., Greenridge v. Ruffin, 927 F.2d 789, 790 (4th Cir. 1991) (holding that the reasonableness of a split-second decision is determined on the basis of the context at the precise moment the decision is made as opposed to in the broader context of the police encounter). Or worse, courts, following their application of the unclear holding in Mendez, exclude the officer’s force-preceding actions from the objective reasonableness test altogether. See Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994) (“We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police [split-second] decisions were correct.”); Salim, 93 F.3d at 92 (“[The officer]’s actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force.”). Rather than providing additional context to help a court understand the reasonableness of an officer’s use of force, split-second decision making becomes the dispositive reasonable justification itself. Courts apply the split-second decision-making doctrine where they ought to apply the totality of the circumstances doctrine, and in doing so hold officer uses of force reasonable so long as they entailed a split-second decision.
Conclusion
The Court’s objective reasonableness doctrine, which looks to the totality of the circumstances surrounding an officer’s use of force, if construed accurately, could be used to hold officers accountable and deter future instances of unreasonable use of force. Arguments can be made that if reasonable alternatives are available to the officer’s use of force, then they should be used, thus rendering the officer’s use of force unreasonable. But there is no room for these types of arguments under the objective reasonableness doctrine so long as an officer’s claimed split-second decision reigns supreme. Split-second decision making renders possible alternatives irrelevant: An officer had to act quickly and did not have time to analyze their alternative options, so their action is de facto reasonable. But most officer trainings counsel against hasty decisions, and the mere fact that a split-second decision was made does not mean that the decision was necessary or reasonable.
This is not to say that there is never room for officers to make split-second decisions when deciding whether to use force. Courts must make a wholistic analysis that considers the officer’s training and adherence to or deviation from that training, the officer’s experience, and the extent to which the officer complied with or violated their department’s rules regarding use of force. See Mitch Zamoff, Determining the Perspective of a Reasonable Police Officer: An Evidence-Based Proposal, 65 Vill. L. Rev. 585 (2020). But courts must also be careful lest departmental policy should become the new shorthand for determining whether a use of force was objectively reasonable. See Osagie K. Obasogie & Zachary Newman, The Endogenous Fourth Amendment: An Empirical Assessment of How Policing Understandings of Excessive Force Become Constitutional Law, 104 Cornell L. Rev. 1281 (July 2019) (analyzing court decisions and police departmental policy to show how courts define objective reasonableness on the basis of departmental policy and departmental policy is defined on the basis of these decisions). There is room for split-second decision making in courts’ analysis of police use of force so long as it is one element among many analyzed under the totality of the circumstances, rather than an unquestionable and case-determinative factor.
Harith Augustus died because a rookie officer made a split-second decision on the basis that he believed Augustus was reaching for a weapon. But this decision made in haste meant that the officer never fully understood what it was that Augustus was actually reaching for. The officer could have waited to see what exactly Augustus was doing, but instead the officer acted rashly, firing off his weapon. Rash action is unreasonable action; reasonableness must also require thoughtfulness, a principle reflected in policing policy. So long as courts apply the split-second decision-making doctrine rather than a fulsome totality of the circumstances test, applications of the objective reasonableness standard will be mired by ex post justifications and unreasonable officer actions. Such a result leaves officers and departments with little incentive or instruction to ensure they only use force that is reasonable. The objective reasonableness standard must free itself from the grips of the split-second decision-making doctrine through a more fulsome understanding and application of a true totality-of-the-circumstances approach.
