Evaluating Police Uses of Force. Seth W. Stoughton
do so, but they do not always exercise their full authority for pragmatic reasons: often because they lack sufficient resources or are unwilling to spend political or social capital in particular ways. Further, it is worth remembering that, in the aggregate, agencies often dedicate substantial resources to the investigation and apprehension of individuals who commit what are, at best, minor crimes. As those examples demonstrate, the strength of the government’s interest as a policy matter is quite distinct from the strength of the government’s legal interests.
As in the context of extradition, the severity of the crime is legally irrelevant when it comes to using force to advance the government’s interest in apprehension in order to facilitate the criminal justice process. That irrelevance can be demonstrated with a simple hypothetical. Consider two criminal suspects who are identical in all respects: age, physical condition, and so on. Assume that the suspects are being arrested by identical officers in identical environments—the middle of otherwise empty parking lots—and that both suspects resist officers in exactly the same way: by attempting to pull away and run. Officers, in turn, use exactly the same type and amount of force to subdue both suspects. The only difference is that the suspects are being arrested for two different crimes: one of the suspects committed the pettiest of petty thefts by shoplifting a single piece of gum from a convenience store, while the other committed a number of serious but nonviolent felonies by defrauding hundreds of elderly victims out of millions of dollars. Clearly, there is a substantial disparity in the severity of the crimes at issue.
In our view, that disparity will not affect the use-of-force analyses; if the officer who arrested the misdemeanant acted unreasonably, the same will be said for the officer who arrested the felon. Conversely, if the officer who arrested the felon acted reasonably, the same will be said for the officer who arrested the misdemeanant. The only explanation for that result, which we believe is an accurate prediction, is that the government’s legal interest in apprehension is the same—or, rather, is not meaningfully different—in both cases.
An astute reader might ask at this point whether the officers in this example could perceive more of a threat from the subject who committed the more serious crimes because the severity of the punishment they are facing may motivate them to take more drastic action to avoid capture. This may be the case, but it only serves to prove our point: the government’s interest in apprehension is the same, even if the government plausibly has asymmetric concerns about safety.
Although the severity of the crime is of little practical use in analyzing the government’s legal interest in apprehension, it may still be relevant from a policy perspective. We address this point in chapter 3.
Second, separate and apart from the role it plays in establishing the government’s interest in apprehension, the severity of the crime remains an important consideration in identifying the strength of the government’s interest in safety—the safety both of community members and of the officer as a government agent. The interest in safety is a sliding scale, reflecting the different physical threats that the government seeks to protect against. In this context, the seriousness of the underlying crime the individual is suspected of committing serves as a proxy for how much of a threat to safety the individual is: the more serious the crime, the more dangerous the subject may be presumed to be. A violent crime may indicate that a subject has both the capacity and the willingness to engage in future violence. Separately, an individual who is suspected of committing a serious crime (even a nonviolent crime) may be more likely to violently resist officers in an effort to avoid a lengthy prison sentence than is an individual who is suspected of committing a minor crime and who therefore faces correspondingly minor punishment. The severity of the crime, then, can be a proxy for the danger that an individual may present to officer or others.
Importantly, assessments of individual dangerousness based on the severity of the crime are only valid in the absence of other, more reliable information. When, for example, an officer lacks reliable information about whether a subject is armed or dangerous, it is entirely logical to conclude that a robbery suspect is more likely to be armed and dangerous than a shoplifter. As the officer gathers additional information, however, the severity of the crime becomes less useful as an indicator of dangerousness. If an officer is approaching a naked robbery suspect whose hands are observably empty, for example, the severity of the crime is no longer an accurate proxy for any estimate about the safety risk that the subject presents. Instead, the severity of the crime as the basis of a threat assessment is supplanted by the officer’s observations.
In sum, the severity of the crime is not a relevant consideration as to the strength of the government’s interest in detaining or apprehending suspected criminals. The severity of the crime can be an important gauge for assessing an individual’s dangerousness, but only insofar as other, more reliable information is not available.
Immediate Threats, Active Resistance, and Attempts to Evade Arrest by Flight
Assessing whether a use of force was reasonable requires asking whether the “the nature and quality” of the use of force is proportional in light of the threat the individual presented to a governmental interest. This requires comparing the officer’s actions to the suspect’s actions. The second and third Graham factors—the immediate threat to officers or others and the suspect’s active resistance or attempts to evade arrest by flight—are both concerned with the nature of the suspect’s actions, which we address in this subsection. We discuss the officer’s actions below.
When officers assert their authority by instructing a civilian to do something—to back up, stop, provide identification, exit a vehicle, or to put their hands behind their back, for example—the officer must assess the actions of the individual on the receiving end of that command. If the individual resists, the officer must assess both the nature of the threat and the severity of that threat.
The Nature of the Threat
The most common method for determining the nature of the threat is by looking at the type of behavior that the subject is engaged in, but reviewers are cautioned against mechanically applying this approach. The question in any given case is not whether the officer’s use of force was proportional to the suspect’s physical actions qua behavior. Instead, the focus should be on whether the officer’s use of force was proportional to the threat that the suspect’s actions presented to the governmental interests identified in the first part of the analysis: facilitating the criminal justice process, maintaining public order, and preserving officer and civilian safety. The subject’s behavior is pertinent, of course, but must be considered in light of the greater context of the interaction; focusing exclusively on the nature of the subject’s behavior can lead to nonsensical results.
To see why, consider “active resistance.” Mentioned specifically in Graham, active resistance is a widely used phrase within policing74 that typically refers to nonaggressive physical actions taken by an individual to delay, defeat, or evade an officer’s attempts to take them into custody, physical movements or actions (as distinct from inactions) that are unlikely to harm the officer or others.75 An arrestee who pulls away from officers and begins to flee has taken two separate actions that both constitute active resistance (pulling away and running).
Unfortunately, however, that taxonomic approach does not provide a reliable foundation for constitutional analysis; focusing on the nature of the subject’s behavior conflates a suspect’s physical movements with a particular threat to a governmental interest. Rigidly applying this approach, for example, would suggest that active resistance threatens the government’s interest in facilitating the criminal justice process, but not the government’s interest in officer or public safety. Neither of those things is necessarily true. A hyper-obese octogenarian holding an oxygen tank may pull away from officers and begin to flee, and while their actions certainly constitute active resistance, the subject may well offer no actual threat to the government’s interest in apprehension. Similarly, while a subject who pulls away from an officer and begins to flee after shoplifting a pack of gum threatens only the governmental interest in apprehension, a confirmed serial killer who engaged in the same