Evaluating Police Uses of Force. Seth W. Stoughton
analyzing a use-of-force incident under the constitutional standard, then, requires understanding and applying the full extent of the Graham factors as well as understanding what else in the totality of the circumstances can affect the conclusion. Graham and subsequent decisions have offered, at best, a partial view of the analytical process that should be applied to use-of-force incidents. Each case analyzed by the courts applies relevant portions of the test, emphasizing some factors over others and omitting some considerations entirely. This is as it should be; the facts of each case are unique, and a recitation of irrelevant considerations would be unnecessary. But while the fragmented application of the rules is appropriate when reviewing the specific facts of an individual case, we seek here to provide a more global perspective.
Deference and the “Reasonable Officer on the Scene”
In use-of-force situations, officers seldom have the opportunity to seek guidance from a peer, supervisor, or manual. Instead, they must apply their training, knowledge, and experience to a specific incident as one of an unlimited set of possible scenarios in which an error in judgment could have catastrophic consequences. The Supreme Court has adopted an objective analysis, a deferential approach that is perceived as necessary because of the inherent stressors in use-of-force situations and the resulting uncertainty. While deference to officer decision making is appropriate, we seek here to identify the contours and limits of that deference.
As the Court has said, analyzing whether a use of force was objectively reasonable requires “careful attention to the facts and circumstances of each particular case.” But which facts? How are the operative facts and circumstances to be properly identified? After all, there is the potential for both factual and interpretive disagreements. Factual disagreements arise when individuals disagree about the underlying facts, as when two eyewitnesses report seeing two different things. Interpretive disagreements arise when individuals agree on the underlying facts, but disagree as to the conclusions that can be drawn from those facts. For example, two people can both see a subject make the same physical actions and still disagree about whether the subject’s actions presented an immediate threat to the officers. In Graham v. Connor, the Court provided the touchstone for resolving both factual and interpretive disagreements, stating:
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 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, the formula for determining the reasonableness of an officer’s use of force has moved from what the Supreme Court had labelled a “purely objective” analysis to a more realistic, but more complex standard that has been called “subjective objectivity.”18 The operative facts, circumstances, and conclusions are those that a hypothetical “reasonable officer on the scene” would have perceived or come to if they had been in the position of the actual officer. In short, Graham instructs courts to rely on what the “reasonable officer” would have perceived, which is not necessarily what the officer actually perceived. To clarify this admittedly confusing point, consider the following examples.
First, consider a situation in which an officer reasonably perceives a threat. For example, an officer uses force against a subject who was aggressively waving a rigid, shiny object with a black handle. If, given the situation, the hypothetical “reasonable officer” would have perceived the object as a knife, then the courts applying the constitutional standard will analyze whether the officer’s use of force was a reasonable response to a subject waving a knife, even if it later turns out (with the 20/20 vision of hindsight) that the knife was a harmless plastic toy.
Second, consider a situation in which an officer unreasonably perceives a threat. For example, an officer uses force against a subject who was standing quite still with their empty hands out at their sides, fully compliant with the officer’s commands. The officer explains, quite truthfully, that they perceived that the subject had been aggressively waving a knife. Given these facts, the “reasonable officer” in this situation would not have perceived the subject the same way. Therefore, the courts will analyze whether the officer’s use of force was a reasonable response to the compliant subject because that would have been “the perspective of the reasonable officer on the scene,” even though that is not what the officer, in fact, perceived.
Reviewers can, and typically must, start their analysis by identifying the perspective of the officer in the moment. That perspective, however, is not in and of itself the source of the operative facts. In assessing the constitutionality of force, the officer’s subjective observations must be filtered through the lens of the legal construct known as the “reasonable officer on the scene.”
This should not be read to mean that the only party in a position to evaluate an incident was the specific officer who used force. There has been an unfortunate tendency to read Graham as forestalling post hoc review, especially within policing itself. Officers and police executives can be far too quick, in our view, to dismiss any review, especially any critical review, as inappropriate “Monday-morning quarterbacking.” This defensiveness may be understandable, but it is misplaced; the Supreme Court’s admonition to rely on “the perspective of a reasonable officer on the scene” and to avoid “the 20/20 vision of hindsight”19 does not insulate officers’ decisions from meaningful, even critical, review. Instead, the Court’s admonition is a reminder that the review of an officer’s subjective observations must be conducted using only the information that was reasonably available to the officer at the time force was used.
It is important to realize that information developed after the use of force can shed light on the information that was reasonably available prior to the use of force. For example, if an officer states that a subject was reaching for that subject’s waistband and later investigation determines that the subject had a gun concealed in that waistband, the later investigation is probative as to the accuracy of the officer’s observation. That is, the fact that the subject had a gun in that location makes it more likely that the subject was reaching for their waistband, and that, in turn, makes it more likely that the officer truly did see—and that a reasonable officer would have seen—the subject reaching for their waistband. In short, the information gathered after the use of force may suggest that the officer’s observation prior to the use of force is more likely to have been accurate. If, on the other hand, subsequent investigation determines that the subject did not have a gun or other weapon, that finding calls the officer’s statement into question, suggesting the potential for misperception, flawed memory, or deception. A subject with nothing in their waistband is less likely to reach for their waistband, which makes it less likely that the officer actually saw the subject reaching for their waistband, which in turn means that it is less likely that a reasonable officer could have seen the subject reaching for their waistband. Here, the information gathered after the use of force suggests that the officer’s observations prior to the use of force are less likely to have been accurate. In either case, further investigation is required to identify whether the officer’s perceptions were reasonable. Critically, the later findings are not dipositive—the subject with the gun may not have reached for their waistband and the subject without the gun may have reached for their waistband for other reasons—but they can help reviewers identify the questions that need to be answered to identify what a reasonable officer on the scene could have perceived at the time.
The officer’s perceptions of the subject’s actions are not the only aspect of a use-of-force encounter that must be viewed through the subjectively objective frame: reviewers must do the same with the use of force itself. The reasonableness of a use of force depends on the risk inherent in the type and manner of the force being used, not the ultimate effect of that force. For example, firing a gun at an individual is properly considered deadly force because of the potential harm the bullet is likely to cause, even if the bullet only grazes the person’s leg, causing a superficial injury, or