The Reasonable Person


The Reasonable Police Officer, the Reasonable Woman, and the Reasonable Person at Home

The Reasonable Person at Home

The “Reasonable Person” is a fiction in our law which functions as a standard of behavior against which courts measure the behavior of plaintiffs and defendants.

Questions arise: Is the reasonable person always rational? Does the reasonable person standard require that people always act based on a conscious decision, or can intuitive, instinctive action be "reasonable"? Are there circumstances under which the reasonable person fights or intentionally kills?

Bernard Brown, in “The ‘Ordinary Man’ in Provocation: Anglo-Saxon Attitudes and ‘Unreasonable Non- Englishmen,’” The International and Comparative Law Quarterly, Vol. 13, No. 1, (Jan., 1964), pp. 215-216, looks at the question as to whether the Reasonable Man standard is culture-dependent:

“The facts of the Sind criminal appeal of Ghulam Mustafa Gahno [A.I.R. (1939) Sind. 182] reveal that the appellant killed his adolescent wife with a hatchet after she had ‘shown him a “booja”’ - a gesture of extreme contempt amongst the Baluchis, a community to which both the appellant and deceased belonged. Referring to the trial judge’s reliance on the standard of the reasonable man as approved by Lord Reading C.J. in the judgment of the Court of Criminal Appeal in Lesbini, Davis J.C. stated:

‘Lord Reading was dealing presumably with Englishmen or some people like them. He was not dealing with Baluchis nor do we think that judgment was intended to lay down that what is grave and sudden provocation to a Baluchi is grave and sudden provocation to an Englishman or vice versa. In short the “reasonable man,” always a somewhat ideal figure, is not a person of identical habits, manners and feelings where-ever he may be.... The “reasonable man” is the normal man of the same class or community as that to which the accused belongs’;

“And later:

‘While it is the offender whom the court regards when considering the question whether he was deprived of the power of self-control by grave and sudden provocation, it decides whether this was so by the test of the “reasonable man,” the ordinary normal man, the ordinary normal Baluchi, when dealing with Baluchis and the ordinary normal Englishman when dealing with the English.’”

My sense is that Davis is not quite right in equating the reasonable man with the “ordinary normal man.” I think the proper function of the standard, as applied in criminal law, is not to require the behavior commonly demonstrated by the average person of a culture, but to require the behavior that can reasonably be expected from a rational person - that is, a sane person. (In civil law I think the standard can be higher.)

But I agree that each sovereign polity must judge for itself what behavior is desirable – what we would like to be able to expect - and what can be expected from a rational person in that polity. For instance: Do we expect and want a culture in which men do not fight over women? Do we expect and want a culture in which men do not fight in response to “fighting words”; or do not take it upon themselves to administer immediate physical retribution when an innocent reputation is slandered? Differing cultures within sovereign polities may answer these questions differently.

West Virginia in April incorporated the “Castle Doctrine” into law, validating deadly force by the occupant of a home against an intruder, even when the resident is not in fear of bodily harm to himself or others, “if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.”

The West Virginia law specifically relieves the lawful occupant from any “duty to retreat,” even when he or she could safely run away instead of using deadly force.

By validating deadly force by statute in this way, West Virginia thus, to a great extent, takes the judgment out of the hands of judge or jury as to whether a reasonable person in his or her home would be justified in using deadly force against a non-violent intruder. Judges and juries in polities where there is no such statute may also come to find deadly force reasonable where the occupant believes an intruder intends to commit a felony, and that deadly force is necessary to prevent it. This may be especially likely in polities like West Virginia with a cultural self-identity based on the isolated mountaineer who cannot, and does not want to, depend on a police presence to deal with crime.

Statutes like West Virginia’s, as well as the decisions of judges and juries, are ways in which polities, based on the kind of behavior and culture they want, set their Reasonable Person standards, defining what behavior is both desirable and realistically to be expected from a rational person in the polity.

The Reasonable Police Officer and Rational Inference

In Terry v. Ohio, 392 U.S. 1 (1968), which gave legal validation to police “frisks,” the U.S. Supreme Court presented a standard for the reasonable police officer:

"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken." [392 U.S. 1, 30, 31]

The Court said:

"[I]in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." [392 U.S. 1 at 21]

"[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” [392 U.S. 1 at 27]

But Officer McFadden, whose frisk of Terry occasioned the case, did not articulate the intuitive inference that led him to act in the dramatic moment at which he “grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others,” and searched him for weapons.

The Court nevertheless signaled to future courts that an experienced police officer is to be given deference in deciding whether a stop is justified, even if that officer cannot articulate how the facts in the record gave rise to his inferences. Terry, by example, implies that the courts themselves can supply the inferences.

The reasonable police officer must “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” a frisk. But the officer need not be able to actually articulate those inferences, even after the fact, and the officer need not prove or even assert that he or she made conscious rational inferences before acting. The officer need only “point to” facts, from which the courts can draw the inferences.

The Reasonable Woman Standard versus a “Reasonable Victim Standard”

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991):

"In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hypersensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment....

"We note that the reasonable woman victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment." [My emphasis]

The court here is laudably aiming to construct a workable standard, based on the perspective of a reasonable woman, in order to help in distinguishing the “rare hypersensitive employee.”

But the court’s adoption of the “reasonable woman victim standard,” in assessing whether someone has been victimized, makes the assumption that the case is proved before one begins the assessment. It assumes that the complainant is a “victim,” and seems to rule out the possibility that an accused man may, in fact, be the victim of a false allegation and the complainant may not be a victim at all. (It happens.)

This assumption is reinforced by the court’s holding that no evidence beyond the putative victims allegations need be offered in order to “state a prima facie case” of sexual harassment:

"[W]e hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct that a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."

All the plaintiff need do is “allege conduct,” and, even in the absence of further evidence, the court says it will grant her victim status.

Using a “reasonable woman” standard is clearly a good idea. We need to wake up to the way our "reasonableness" standard is skewed by exclusively referencing the "reasonable man." Ellison’s harasser, Gray, had, arguably, merely acted like a fool from a “reasonable man’s” perspective, persistently mooning around and writing adoring love letters betraying his delusions of a relationship with Ellison. But the court found that:

"A reasonable woman could consider Gray's conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment."

I find the “reasonable woman” valuable. But there is a big difference between a “reasonable woman” standard and the court's ludicrous proposal of a “reasonable victim” standard.