Evaluating Police Uses of Force. Seth W. Stoughton
example, when an individual has shoplifted a pack of gum, there is a governmental interest in detection, investigation, and apprehension, but that incident simply does not involve the type of crime that would lead a reasonable officer to believe, without any additional information, that the subject was imminently dangerous to the officer or the general public. On the other hand, a known serial killer who is fleeing from officers implicates not only the governmental interest in apprehension, but also public safety interests. Between those two extremes, an individual who has committed a series of very serious, but nonviolent crimes may implicate the government’s interest in officer safety because the severity of the punishment they face may make them more likely to violently resist than would the shoplifter.
When analyzing the nature of the crime, analysts must be cognizant that the relevant crime is not necessarily the crime that initially gave rise to the interaction. Instead, use-of-force determinations require analysts to identify all of the relevant crimes and, typically, to focus on the most serious crime or crimes in play. For example, the shoplifter who steals a single pack of gum commits among the pettiest of petty thefts. If, however, that shoplifter shoves the responding officer, the nature of the crime that establishes the government’s interest in using force has shifted from petty theft to assault of an officer. If the shoplifting suspect draws a firearm and threatens to shoot the officer, the nature of the underlying offense shifts yet again to an aggravated assault. This is an extreme example, but the logic is equally applicable in more common situations: when a suspected criminal flees from an officer’s command to halt, the relevant crime(s) may include resisting or obstruction (depending on state law) as well as the crime that originally gave rise to the officer’s command.
Immediate Threat
Where the first Graham factor, “severity of the crime,” was primarily about identifying whether a use-of-force incident implicated the government’s interest in detecting, investigating, and apprehending criminals, the second Graham factor, “immediate threat,” is primarily about identifying whether the incident implicated the government’s interest in safety.
We begin the discussion of this factor with the reminder that we are concerned at this point in the analysis only with the binary question of whether there was an immediate threat.48 An officer’s perception that an imminent49 threat exists is reasonable when the officer has reason to believe that an individual has the ability, opportunity, and intent to cause harm.50
Ability means the individual’s physical capacity to cause an identifiable type of harm. Ability in this context requires an explicit reference: the individual must be capable of taking an action that would cause some particular and identified type of physical harm. It is not sufficient to state that an individual has the ability to cause some undefined harm—identifying the presence of a governmental interest that permits officers to use force requires specifying the type or types of harm that the individual has the capacity to cause. A handcuffed individual, for example, lacks the ability to punch someone, although they may retain the ability to kick or ram someone with their shoulder. Similarly, an individual with a knife in their hand may have the ability to stab someone, while an individual without a knife does not. Articulating ability, then, requires officers both to identify what the individual was capable of at the relevant time and, for each type of harm identified, to explain how the officer came to that conclusion. In short, officers must not only identify that the subject was able to inflict some type of harm, they must identify that harm and explain why they concluded that the subject was capable of inflicting it. Relevant observations include, but are not limited to:
The subject’s apparent physical condition (age, size, strength, apparent skill level, physical condition such as injury or exhaustion, etc.);
The subject’s apparent mental condition (the apparent influence of mental illness, drugs, or alcohol, for example);
The proximity of weapons; and
The degree to which the subject has been effectively restrained at the relevant time and their ability to resist despite being restrained.
Opportunity refers to the environment and situation, specifically with regard to the individual’s proximity to the potential target or targets. Even if an individual is physically capable of throwing a punch, they may not have any opportunity to cause harm by doing so because they are too far away for the punch to connect. Similarly, an individual with a knife who is a block away from the officer has the capability, but not the opportunity, to use the knife against the officer at the time; therefore, the knife should not be considered a threat to the officer in that moment (although it certainly may become a threat as the distance between the subject and the officer decreases). There is no set distance at which an individual does or does not have the opportunity to physically injure an officer; that determination depends on the relevant harms and the facts and circumstances of each case. Articulating opportunity requires officers to explain how the individual could cause an identifiable harm to a specific target at the relevant time. Relevant observations include, but are not limited to:
The physical proximity of the subject to potential targets;
The nature of the harm (e.g., an individual may be so far away as not have the opportunity to attack with a knife while still retaining the opportunity to attack with a firearm);
The subject’s apparent physical condition and the speed at which they could close distance;
The reactionary gap (the amount of time that it will take for an officer to react to an individual’s actions); and
The officer’s ability under the circumstances to reduce or eliminate the opportunity for violent attack.
Intent refers to the individual’s perceived mental state, their apparent desire to cause physical harm to the target or targets. Where ability and opportunity may be relatively easy for an officer to diagnose based on readily observable physical characteristics, intent is more complicated. Because officers, like everyone else, lack the ability to divine another’s intentions by peering into their mind, officers must rely on behavioral indicators, physical manifestations indicative of intent. To take an obvious example, lunging at an officer with a knife is a clear physical manifestation of the intent to stab the officer. In contrast, an individual who is merely conversing with an officer while standing next to a knife block in the kitchen does not present any physical behaviors from which an officer could identify an intent to use the knife aggressively. It is important to avoid blurring the lines between intent and the other aspects of threat; an individual may be physically capable of causing harm and have the opportunity to do so, and yet not present any threat. For example, if an officer is standing next to a motorist who is changing a tire at the time, the motorist has the ability and opportunity to strike the officer with the tire iron they are holding. However, if there is no reason to believe that the motorist intends to strike the officer with the tire iron, there would be no threat in this situation. When that is the case, the use of force would not be justified at that moment.
Importantly, intent may be properly articulated through a combination of multiple factors even if no individual factor is sufficient on its own. To continue our previous example, merely holding a tire iron is not in and of itself indicative of the intent to cause harm. Nor is walking toward an officer. Nor is failing to obey an officer’s commands. However, walking toward an officer while holding a tire iron and ignoring the officer’s commands to stop or drop the weapon can be, in combination, indicative of the individual’s intent.
It is worth emphasizing that officers must explain why they came to the conclusion that an individual had the intent to cause physical harm. This requires the articulation of specific, observable facts. It is not sufficient for officers to rely on unhelpfully generic descriptions such as an individual’s “body language” or their “furtive movements” or the “look in their eyes.” Officers must describe what the body language was, what the movements were,