Originally published on forcescience.com. Republished with permission.
There is nothing inherently unconstitutional about a police officer standing in front of an occupied vehicle. It does not justify ramming the officer. It does not strip the officer of their right to self-defense.
That concept should not require extended debate. It certainly does not require a complex legal analysis. Why then does the conversation so quickly turn from the suspect’s conduct to publicly indicting the officer?
In the recent ICE shooting that captured national attention, the critics’ narrative unfolded in predictable stages. First, the officer was not in danger. Then he was not actually hit. When the video showed that he was struck by the vehicle, the argument pivoted again. Finally, it became, “Well, he was barely hit, but who cares, his tactics were terrible. He should never have been standing there.”
Shifting Culpability
In so many of these cases, when the threat can no longer be denied, critics attempt to shift culpability by looking backward in time. When the officer’s perception at the moment force was used cannot be seriously challenged, critics search for fault in the minutes and seconds leading up to it.
The focus shifts from the suspect’s decision to accelerate toward the officer to the officer’s decisions that left him exposed. The claim becomes that the officer created the danger, provoked the confrontation, failed to de-escalate, stood too close, failed to wait for backup, or drew his gun too fast.
From there, the theory can morph into something even more curious—that the officer somehow caused the suspect to attack him. By simply standing in a vulnerable position, issuing a lawful command, or compelling compliance, the officer unreasonably provoked the assault itself.
The word reasonable does not mean the same thing in every context, and the law uses it in very distinct ways. How the term is used in evaluating police use of force can distinguish honest accountability from intentional efforts to shift criminal culpability toward officers and away from suspects who threaten them.
The Unreasonable Sleight of Hand
In most cases, police use of force is analyzed under the Fourth Amendment’s objective reasonableness standard.
Under the Fourth Amendment, once a seizure occurs, reasonableness requires balancing the nature of the intrusion against the governmental interest at stake. In deadly force cases, that inquiry asks whether the officer had probable cause, in practical terms a reasonable belief, that the suspect posed an imminent threat of death or serious bodily injury.
That reasonable belief does not require certainty. It must be grounded in specific, articulable facts known to the officer at the time. An officer is assessing whether the suspect poses an apparent threat, not an actual threat. That belief may be mistaken but remains lawful so long as it remains objectively reasonable.
When facing an apparent threat, the officer’s response must also be reasonable. The force used cannot be excessive relative to the need to immediately and decisively stop the threat and overcome resistance.
Reasonableness under the Fourth Amendment governs both whether a seizure is justified and how it is carried out. Even where probable cause exists, the manner in which an otherwise lawful seizure is executed may render it unreasonable if the force used is excessive. While the Fourth Amendment regulates the officer’s judgment and the conduct of the seizure itself, it does not convert every tactical decision that precedes a seizure into a constitutional question.
Conducting threat assessments and choosing responses are simply real-world applications of the Fourth Amendment objective reasonableness test. Evaluating these judgments requires focusing on what the officer perceived at the time, interpreted through that officer’s training, education, experience, and reasonable inferences drawn therefrom.
Reasonableness does not require certainty. It does not require perfection. It does not require the optimal or least intrusive means. It does not require the best or even better tactical choices. It does not require officers to eliminate all tactical risks before acting.
Courts have repeatedly rejected the idea that the existence of a safer alternative automatically renders force unreasonable. The question focuses on what a reasonable officer perceived at the moment force was used, not on whether speculative tactical revisions might have allowed the officer to avoid the confrontation altogether.
Pre-seizure Conduct as Constitutional Violations?
When evaluating force encounters, pre-seizure conduct may be considered as part of the totality of the circumstances. But it is far from determinative, and “pre-seizure,” by definition, does not convert discretionary tactical decisions into constitutional violations.
The Supreme Court reinforced this position in County of Los Angeles v. Mendez (2017) and again in Barnes v. Felix (2025). In Mendez, the Court refused to allow prior constitutional violations to automatically discredit a later, otherwise reasonable use of force.
Where the Court was unwilling to find prior constitutional violations sufficient to undermine a later use of force, it has been even less willing to allow pre-seizure, discretionary tactics to play that role.
In Barnes, the Court rejected a lower court’s attempt to limit the reasonableness inquiry only to the instant immediately preceding the use of force. Despite the enthusiasm of reform activists, the Supreme Court did not adopt or endorse the academic theory of officer-created jeopardy. Neither Mendez nor Barnes transformed discretionary pre-seizure tactics into constitutional questions.
Shifting the Battleground
Barnes clarified the relevant period for evaluating use of force, but the standard itself did not change. The reasonableness of any use of force is still evaluated under the totality of the circumstances and is not limited to a snapshot of the final second. The immediacy and severity of the threat remain central to assessing the nature and quality of force used in response.
Courts recognize that context matters. That necessarily means prior events could be relevant. Known history, including earlier threats or escalating conduct, can inform how an officer understood the risk at that moment.
But the questions remain centered on the circumstances confronting the officer when force was used, not on speculative claims about what different pre-seizure tactics might have prevented the use of force.
For decades, the Supreme Court has interpreted the Fourth Amendment to guide and afford deference to judgments made under tense, uncertain, and rapidly evolving circumstances. A reasonable belief in an apparent threat is sufficient, and close cases inures to the benefit of the officer.
Qualified immunity reinforces that structure. It shields all but the plainly incompetent or those who knowingly violate the law. It recognizes that officers must make split-second decisions without the luxury of hindsight.
Together, the Fourth Amendment and qualified immunity significantly narrow the path to liability in close cases. That reality presents challenges for those who seek to impose liability even where the law and facts overwhelmingly support the officer.
So instead of confronting the constitutional standard directly, critics shift the analysis toward hindsight criticism of discretionary tactics.
Collapsing Fourth Amendment Reasonableness
When the Constitution does not produce the result critics seek, their focus moves from whether the force was objectively reasonable in the moment to whether the officer could have handled the situation differently. Jurors, community members, political leaders, and even police executives are invited to substitute their judgment for the officer on the scene and treat disagreements as constitutional defects.
New sources of “authority” are introduced. Instead of constitutional standards, critics cite their curated view of “professional norms.” They offer vague notions of “generally accepted police practices.” They reference model policies, white papers, position statements, and even their own books as though they define legal obligations.
They present these materials as if they represent settled benchmarks rather than discretionary guidance. They imply that deviation from those preferences is unreasonable and evidence of misconduct.
But these are not constitutional standards. They are not universal best practices. They are not national mandates. Tactics remain discretionary. They are subject to the risks, benefits, and tradeoffs evaluated by the officer in real time and in alignment with legitimate law enforcement efforts.
What critics often present as professional consensus are distinct policy judgments. They may reflect aspirational goals, risk management strategies, political compromises, or evolving reform agendas. But they are frequently selectively framed, stripped of context, or overstated to create the appearance of authority.
Even national organizations that participate in drafting model policies do not share uniform political objectives or enforcement priorities. As such, these organizations expressly reject the idea that their policy recommendations form the basis of national standards.
None of this suggests that policing should resist scrutiny or improvement. As a profession, law enforcement has long defined itself by constant self-assessment and commitment to improvement.
Agencies collaborate with academic partners, mental health professionals, community stakeholders, and adjacent industries to improve training, tactics, and outcomes.
That ongoing pursuit of improvement is part of a professional identity.
But professional evolution does not redefine constitutional standards. As discussed in The Expert Trap, “best practice,” “optimal performance,” and even perceived “consensus” are not Fourth Amendment requirements. Officers may strive ethically and professionally to perform at the highest level possible under difficult circumstances.
Agencies may revise policies in light of new research or community priorities. Yet due process requires fair notice. Officers must be judged against the legal standards and training governing their conduct at the time, not against aspirational models, contested theories, or shifting political preferences imposed after the fact.
That distinction matters when we examine how modern “professional norms” and practices may have developed in the first place—and how they are now being characterized.
Reducing Lawful Shootings
As we attempt to put academic and industry guidelines in their proper roles, it is important to understand where many of these “professional norms” originated.
Over the past decade, police organizations have deliberately adopted policies designed to reduce officer injury and reduce the number of incidents in which people might otherwise be lawfully shot.
Agencies have encouraged officers, when feasible, to prioritize escaping the path of threatening vehicles rather than engaging with deadly force. They have implemented more restrictive pursuit policies. They have emphasized de-escalation and distance when circumstances permit.
These developments are not admissions that prior tactics were unconstitutional. Instead, they reflect a voluntary effort to reduce lawful use of force and to minimize harm to both officers and suspects.
These policies operate within a broader set of law enforcement responsibilities. Officers are tasked with reducing crime, executing warrants, preserving evidence, deterring resistance, and maintaining the rule of law.
Decisions to disengage, delay, or avoid confrontation in order to reduce the likelihood of force involve tradeoffs. Suspects may escape. Evidence may be lost. Deterrence may erode. If the sole objective were to eliminate risk to officers or suspects, officers would be far less likely to initiate contact at all. Law enforcement requires balancing safety concerns with the effective accomplishment of legitimate governmental interests.
An officer’s decision in a particular encounter to prioritize an equally legitimate governmental objective over a discretionary safety preference does not, by itself, transform the encounter into a constitutional violation. Nor does it eliminate the officer’s right of self-defense if a suspect chooses to exploit an exposed position.
Critics often overlook this distinction. They point to professional trends encouraging officers to prioritize evasion and avoidance in response to vehicle-borne threats and treat those voluntarily adopted priorities as constitutional mandates. Discretionary, good-faith safety efforts are reframed as rigid requirements.
Once those preferences are recast as mandatory professional norms, departures from them, including those necessary to advance other legitimate law enforcement objectives, are labeled unreasonable.
That label then becomes a mechanism for shifting culpability.
The suspect’s decision to accelerate, to assault, or to resist can fade into the background. The officer’s failure to prioritize a risk-reduction tactic becomes the central focus. The officer is accused of not doing enough to save the suspect from the consequences of the suspect’s own decisions.
That is not what those policies were designed to accomplish.
They were designed to reduce harm, not to redefine constitutional legitimacy.
Real Consequences of the Sleight of Hand
Although police practices experts are acutely aware of the proper role of academic research and position papers, once those materials are offered to the public as governing authority, the damage may be done.
The audience is led to believe that failure to conform to these undefined “professional norms” equals unreasonableness. And once the unreasonable label is cast, criminal culpability for murder may be implied and readily accepted.
This sleight of hand has real consequences, not just with the public but with jurors who are often being led to believe that tactical disagreements equate to criminal conduct.
Courts often correct the legal record. They reaffirm Graham. They resist bootstrapping theories under Mendez. They decline to adopt officer-created jeopardy under Barnes. They return the analysis to objective reasonableness and the moment force was used.
The pressure to unreasonably expand officer liability is accelerating and clarity needs to begin with the profession itself. Media engagements and public addresses are needed to accurately frame the issues, the law, and the reality of making decisions during time-compressed critical incidents.
Although courts, ethical prosecutors, and legal scholars continue to resist the Fourth Amendment sleight of hand, by the time the questions have been answered and the record corrected, the public narrative may have already hardened.
Officers are terminated. Careers are destroyed. Cities erupt. Political leaders distance themselves. And when courts later clarify that the conduct was constitutional, the public is left with the impression that the officer “was not held accountable.” In other words, they got away with it.
The accusation was emotional and political. The correction is technical. Invariably, it will be the emotional narrative that lingers.
That is why clarity must begin within the profession itself. Police leaders, trainers, attorneys, and experts must resist the collapse of constitutional reasonableness into tactical preference. They must distinguish aspirational safety strategies from legal mandates. They must refuse to allow biased policy judgments to be repackaged as pseudo-national standards.
Officer-created jeopardy will undoubtedly remain a battleground going forward. To shift culpability from the suspect to the officer, it depends on conflating constitutional reasonableness with vague standards of “professional norms” and “generally accepted practices.”
It further requires setting aside the well-established warning against 20/20 hindsight and imposing an expectation of optimal tactics, even when those imagined alternatives rest on speculation about outcomes that cannot be proven. Under that approach, discretionary judgments become suspect and tactical tradeoffs are recast as constitutional risks, evaluated through a lens of certainty that real-world policing does not permit.
That is not honest accountability.
It is an unreasonable sleight of hand.
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