Student Review:

      The Fourth Amendment guarantees that individuals have a right against unreasonable seizures.  Urbonya explores how courts establish what defines reasonableness under the Fourth Amendment. She finds that too often courts equate the presence of danger with reasonableness and refuse to look at the totality of the circumstances.  Often the presence of danger is established by deferring to the judgment of police officers rather than conducting an independent inquiry.  This approach is not consistent with the history of the Fourth Amendment, nor does it give ample weight to the individual's right to personal security.
      The Supreme Court first established the importance of assessing danger for claims under the Fourth Amendment in Tennessee v. Garner and Graham v. Conner.  Garner established the standard for the use of deadly force.  To determine reasonableness, a number of interests must be balanced: personal security, the interest of society in a fair adjudication of guilt, and society's interest in law enforcement.  The degree of danger presented to the officer must be balanced with the suspect's interest in her own life.  Factors that show danger include the nature of the offense and the immediacy of the danger.  Graham found that reasonableness must also be present in the use of nondeadly force.  The Court established that the factors that determined reasonableness included the severity of the crime, whether there was an immediate threat, and whether the suspect was resisting arrest.  Both of these cases created broad guidelines for determining reasonableness under the Fourth Amendment.  However, in practice, many lower courts have misread these cases by merely focusing on the requirement of danger and giving broad deference to police decisions.
      Urbonya looks at many lower court decisions to determine the issues that remain unclear under the Fourth Amendment's reasonableness requirement.  One issue that is interpreted differently by lower courts is the time frame looked at by the court to determine danger.  Some courts look merely at the conditions at the time the officer chose to use force rather than looking at the earlier alternatives available to the officer.  Another issue is whether the courts should determine reasonableness in a summary judgment motion rather than allowing a jury to decide the case.  Some courts merely defer to the police officer's judgment rather than allowing the jury to make credibility determinations and weigh all parties' testimony.  Courts must also determine what factors cause police officers to perceive immediate danger.  Often courts look at the actions of the suspect when with police, if the suspect committed a violent offense, if the suspect made a furtive gesture (i.e. reaching for a weapon), or if the suspect lunged at the officer.  Urbonya feels that courts should not base reasonableness on one specific action, but instead look at the totality of the circumstances, including if the officer had other alternatives.  Courts must also determine the degree of danger in other cases including: preventative actions during Terry stops, the seizing of psychologically disturbed suspects, rescue actions in an emergency, and searches during an arrest.
      The author finds that courts should not equate the reasonableness inquiry of the Fourth Amendment with a sole showing of danger.  There must also be an inquiry into both society's and the individual's interest in personal security.  A reasonableness inquiry should not merely defer to the police officer's perception of danger.  Reasonableness must be assessed in the light of the history of the Fourth Amendment which intended to protect citizens against intrusive government actions.  The nature of the suspect's offense must also be taken into account, as well as alternative means of action available to the officer.  In addition, the determination of reasonableness must not only include the events immediately preceding the use of force, but should also encompass the events prior to the seizure.  Most often, it is the jury's role to determine the facts of the case and establish what constitutes reasonableness, and summary judgment should only be used in rare cases.  The doctrine of the police's community caretaking function must also be carefully analyzed and weighed in relation to the right to personal security.  Especially with this doctrine, the importance of assessing personal privacy may be pushed aside in the analysis of danger.
      Thus, in protecting against unreasonable seizures, courts must be not only look at the level of danger involved in a situation, but must engage in a balancing test that takes into account the history of the Fourth Amendment, the right to personal security, and any alternative avenues of police behavior.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999