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Anderson is premised on the understanding that the "reasonableness" element of probable cause is different from the "objectively reasonable" standard of qualified immunity. That is because probable cause, unlike excessive force, involves a mixed question of fact and law. Moreover, the legal judgments involved in a probable cause determination often require the drawing of fine lines. Recognizing that reality, this Court held in Anderson that, given the "difficulty of determining whether particular searches or seizures comport with the Fourth Amendment . . . [l]aw enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable . . . [are entitled to qualified immunity]." Id. at 644 (emphasis added). Thus, in the probable cause context, a police officer might mistakenly violate a citizen’s rights without acting unreasonably. The doctrine of qualified immunity protects such reasonable officers from liability, even though a constitutional violation has taken place.

By contrast, qualified immunity is not required to protect reasonable decisions by police officers accused of using excessive force. The Fourth Amendment already provides them with latitude to determine how much force is reasonably necessary. In many "tense, uncertain and rapidly evolving" situations, reasonable force may comprise a range of options or responses that the officer might employ. Different officers, each behaving reasonably, might elect to use a baton, a chemical agent, a take-down hold, or a different technique; and each might use greater or lesser force, within a reasonable range, in employing the chosen technique.

Furthermore, a number of courts have held that the police are not required to use the least amount of force necessary, as long as the force used was within a range of objectively reasonable options. Forrett v. Richardson, 112 F.3d 416, 420-21 (9th Cir. 1997), cert. denied, 118 S.Ct. 1366 (1998)(shooting violent felony suspect was reasonable even if his capture through other means was inevitable); Scott v. Henrich, 39 F.3d at 915 (reasonable to shoot armed man who confronted police at door); Menuel v. City of Atlanta, 25 F.3d 990, 996 (11th Cir. 1994)(fatal shooting of emotionally disturbed suspect was reasonable); Forrester v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir. 1994), cert. denied, 513 U.S. 1152 (1995)(use of "pain compliance techniques" to remove protestors was reasonable); Plakas v. Drinski, 19 F.3d 1143, 1148-49 (7th Cir.), cert. denied, 513 U.S. 820 (1994)(shooting of suspect was reasonable; officers not required to use available alternatives of maintaining distance from suspect with protection of barrier, or using chemical spray).

As these cases demonstrate, even where the officer uses more force than the bare minimum necessary to take someone into custody, his conduct may be objectively reasonable. Accordingly, in each of the cited cases, the court found that there was no Fourth Amendment violation and thus no need to reach the issue of qualified immunity. Moreover, unlike probable cause disputes, there was no need in any of these cases to conclude that the officer was "mistaken" about whether he had committed a constitutional violation. Rather, each of these courts analyzed the facts under Graham and concluded that no constitutional violation had been committed because of the allowance for reasonable force already embodied in the Fourth Amendment.

Recognition that reasonable force may include a range of responses is consistent with this Court’s observation in Graham that "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application." 490 U.S. at 396. Understanding that the Fourth Amendment recognizes a range of forcible responses as reasonable also implements this Court’s injunction in Graham that there be "allowance for the fact that police officers are often forced to make split-second judgments." Id. at 396-97.

How wide the allowance or range may be "requires careful attention to the facts and circumstances of each particular case." Id. at 396. In some cases, the facts and circumstances may be simple enough that the range of permissible options available to the officer will be quite narrow. Indeed, the courts have recognized that in some circumstances no use of force is reasonable if none is required. See Cox v. Treadway, 75 F.3d 230, 234 (6th Cir.), cert. denied, 117 S.Ct. 78 (1996); Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983). In others, the difficulties confronting officers making split-second, life and death decisions may raise sufficient problems that the range of responses that should be deemed reasonable may be quite broad.

The critical point is that this "zone of protection" in use of force cases is provided as part of the Fourth Amendment reasonableness standard itself. And where, as here, the standard for determining qualified immunity is the same as that for deciding the constitutional question itself, the defense is superfluous.

This is not a matter of semantics or linguistic similarity; rather, it is a case of identical doctrine. In determining whether an officer’s use of force was within a range of reasonable options, the jury is also (and necessarily) answering the question whether a reasonable officer "could have believed" his use of force "to be lawful." Anderson v. Creighton, 483 U.S. at 638. Once this question is answered, there is no other inquiry that must be resolved in order to impose liability.

The doctrinal differences between probable cause and excessive force cases have been recognized by the lower federal courts. See, e.g., Humphrey v. Staszak, 148 F.3d 719 (7th Cir. 1998); Alexander v. County of Los Angeles, 64 F.3d 1315; Guffey v. Wyatt, 18 F.3d 869 (10th Cir. 1994); Street v. Parham, 929 F.2d at 541 n.2 (because of the difficulty of deciding the probable cause issue, the conduct of the officer may be objectively reasonable even if cause did not exist, but in "excessive force cases, once a factfinder has determined that the force used was unnecessary . . . any question of objective reasonableness [is] . . . foreclosed"); Landy v. Irizarry, 884 F.Supp. 788 (S.D.N.Y. 1995); Foote v. Spiegel, 995 F.Supp. 1347, 1353 (D. Utah 1998).

In Finnegan v. Fountain, 915 F.2d 817, 824 n.11 (2d Cir. 1990), the court made the following pertinent analysis:

In Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990), we made such a distinction between the reasonableness inquiries underlying a Fourth Amendment claim for an arrest without probable cause and qualified immunity. We stated that the probable cause inquiry involved essentially an ex post inquiry, judging reasonableness from the "actual circumstances . . . found as a matter of fact," while the qualified immunity involved an ex ante inquiry, judging reasonableness "from any reasonable point of view, including even a factual misperception, the officer may reasonably have harbored at the time the events took place." Id. at 75. It is questionable whether this same distinction holds up in the context of an excessive-force claim case, because the Supreme Court has made clear that the excessive-force inquiry is not made from an ex post perspective, but from the ex ante "perspective of a reasonable officer on the scene."

The present case is a good example of the confusion and uncertainty that is caused by the introduction of qualified immunity issues in the litigation of excessive force claims. The pivotal issue for the jury was whether, under the circumstances, respondent Trepagnier had reasonable grounds to believe that petitioner had a pistol and was in a position to harm Trepagnier if he did not first fire his weapon. Because Trepagnier testified that he was certain that Snyder had a weapon -- indeed, that he had fired and then aimed it at him at close range and that the officer actually pushed the weapon into the mud -- the jury’s finding of liability definitively resolved this factual dispute.

A properly instructed jury would have been told to make a finding of excessive force if, under all the circumstances, an objectively reasonable officer, as defined by Graham, could not have believed that the force used was necessary. Had this charge been given, a verdict in favor of petitioner would have necessarily reflected a factual determination that Trepagnier’s version of events was not credible, and that an objectively reasonable officer would not have believed that petitioner was armed or posed a threat to the officer.

In fact, the trial court's instruction to the jury defined the Fourth Amendment standard in a manner that was even more deferential to the officer's decision to use force. The court instructed the jury:

In order to prove that the defendant used excessive force in violation of the Fourth Amendment, the plaintiff must prove by a preponderance of the evidence some harm that resulted directly and only from the use of force that was clearly excessive to the need and the excessiveness of which was objectively unreasonable in light of the facts and circumstances at the time. If the plaintiff fails to prove any one of these elements, you must find for the defendant.

Some of the things you may want to consider in determining whether the defendant used excessive force are:

(1) The relationship between the need and the amount of force used;

(2) The need for the application of force;

(3) The extent of the injury suffered;

(4) The threat reasonably received by the responsible officials; and

(5) Any efforts made to temper the severity of a forceful response.

Injuries which result from, for example, an officer's reasonable use of force to overcome resistance to arrest do not involve constitutionally protected interests. 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. The nature of the reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain and rapidly evolving -- about the amount of force that is necessary in a particular situation.

This reasonableness inquiry is an objective one. The question is whether the officer's actions are objectively reasonable, in light of the facts and circumstances confronting him, without regard to their underlying intent or motivation.

Trial Tr. 1030-31 (emphasis added).

The court then gave the disputed "qualified immunity" instruction:

If you find that the plaintiff has proven his claim, you must then consider the defendant's defense; namely, that the defendant, Sidney Trepagnier, acted in good faith and thus is not liable.

. . .

On the other hand, if, after considering the scope of the discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the circumstances of the case as they would have reasonably appeared at the time, you find from a preponderance of the evidence that the defendant, Sidney Trepagnier, had a reasonable and good faith belief that his actions would not violate the plaintiff's constitutional rights, then you cannot find him liable even if the plaintiff's rights were, in fact, violated as a result of the defendant's good faith action.