Over at Simple Justice, defense attorney Scott Greenfield has an interesting objection to yesterday's post arguing that there are two legitimate ways to construe the Utah taser video I blogged about last Friday. In response to my claim that an officer could reasonably fear that the driver was fishing for a weapon in his pocket at the 2:36 mark, Greenfield strongly disagrees:

  This is where it becomes clear that the academic's view lacks practical connection with reality. It's not just the hands. It's the bulge. The minutes the driver exited the vehicle, the cop eyeballed the guy for a bulge, the telltale sign of a weapon. Guns are big and heavy. People who have never seen or held a gun don't realize that they are big and heavy. Check the waistband and the pockets for the bulge. Check under the arms. No bulge, it's safe.
  The cop isn't afraid that the driver is going to reach into his pocket and throw loose change at him. The only reason for a cop to be concerned is a weapon. There could be a small pocket knife, but the cop already has the taser out and aimed, so he's not worried that the driver will reach him with a pocket knife. There's no chance of that happening. But most importantly, and regardless of what the driver is doing with his hands, there's no bulge.
  Why does it matter that a known criminal law scholar like Orin makes such rookie mistakes in his analysis? Because there are a lot of lawyers, and some of them will be your judge someday and others may be on your jury, who think they are learning about "real-life" criminal law from him. . . .
  Was the use of force "reasonable" from the officer's perspective? Only if one lives in a fantasy world where one deliberately closes one's eyes to both the reality of police work and the fundamental expectation that police do not go around using force against citizens because they, the cops, are screw-ups. No Orin, I can't agree that it was reasonable. And I can't agree that your efforts to "explain" the cop's perspective demonstrate that you take a fair and reasonable view of police/citizen encounters. You blew this one big time.

  I always appreciate careful criticism of my analysis, so I wanted to post this and then offer a few thoughts in response.

  I think there are two issues here. The first is Greenfield's claim that no reasonable person could possibly think that the driver was armed based on observing him during the stop. On this, I'll happily defer to others with more experience with handguns. The driver is wearing shorts with big baggy pockets, and I would think a smaller-size handgun could fit in those pockets without making a large and obviously visible bulge. (Of course the officer could frisk the driver for weapons, but he didn't get the chance to do that given how the episode unfolded.) However, I am indeed a "rookie" when it comes to the size of bulges different pistols make in different pockets of different pants; I've fired a pistol before, but it was years ago, and I can't say I've put one in my pocket. Would a pistol necessarily be obviously visible? On that issue I'll defer to others.

  At the same time, if we're interested in the legal question of whether the use of force was "excessive" under the Fourth Amendment, I think it's worth pointing out the legal standard is actually quite deferential to the police in these situations. The legal standard is objective reasonableness, "judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight." Graham v. Connor. The officer's subjective intent is irrelevant. Id. As the Supreme Court stressed in Graham, "The calculus of 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." Thus from a legal standpoint it would have to be pretty clear (even based on a quick, split-second judgment) that the driver was not armed for Greenfield's analysis to have its full force.

  Was it that clear? Again, I'm happy to defer to others on that issue.

  UPDATE: The commenters to the thread who are firearms owners or otherwise very familiar with firearms appear to agree that Greenfield is incorrect, and that there are several popular types of handguns that would fit in the driver's pocket without causing a visible bulge. If that's right, I suppose it shows the dangers of characterizing disagreement as a contest between "reality" and an ivory-tower "fantasy world"; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right.