Evaluating Police Uses of Force. Seth W. Stoughton
a subject in the face when the subject’s head is on the ground is properly considered a serious use of force because of the potential for harm, even if the strike results in only a minor injury. In either of those two cases, predicating the reasonableness inquiry on the ultimate injury would lead reviewers to incorrectly ask whether the use of minor force was appropriate. Clearly, that is the wrong way to approach those examples. The correct question is whether the use of deadly force or serious force, respectively, was appropriate under the circumstances. In short, the reasonableness of any use of force depends on the foreseeable harms that arise from the officer’s actions—that is, the harms that the “reasonable officer on the scene” would have anticipated—not the actual harms that result. As with other forms of evidence, of course, the actual injury that results can, in some cases, provide limited guidance as to what harms were foreseeable prior to the use of force.
Under Supreme Court precedent, then, reviewers must be able to identify the facts and circumstances as the reasonable officer on the scene could have perceived them, to draw the conclusions and to make the predictions that the reasonable officer on the scene could have drawn and made, and to analyze the resulting information. This has created at least three problems. First, the Court has provided no guidance as to how judges and other reviewers are to define the “reasonable officer on the scene,” nor has the Court defined the extent to which the actual officer’s individual characteristics—years of experience, training, and so on—should be imported into that analysis. Second, the Court has not provided any operational definitions of the Graham factors themselves. For example, how would the hypothetical “reasonable officer on the scene” assess the severity and likelihood of potential threats, and how exactly would they determine the immediacy of any given threat? Third, even if a reviewer is able to view the scene from the perspective of a “reasonable officer” and to apply the Graham factors, that assessment is best understood as answering the binary question of whether some amount of force was justified and not the more important, but more complicated question of what type or how much force was reasonable. Consider, for example, the arrest of a murder suspect: a physically diminutive and frail octogenarian who, while stark naked and unarmed, slaps at arresting officers. Taking the Graham factors at face value and applying them without additional analysis would lead inevitably to the conclusion that the crime is severe, there is an immediate threat to the officers, and the subject is actively resisting in an attempt to evade arrest, yet it would be patently absurd for officers to use more than a modicum of force, if any, to subdue the subject.
There are no perfect solutions to the problems identified above, but reviewers can subject use-of-force incidents to appropriate review when they know what features, characteristics, or categories of an event to examine, and how to examine and understand them. The use of force is messy, and evaluating uses of force after the fact can be just as messy. The purpose of this chapter is to operationally define relevant characteristics of a use-of-force incident and to provide a reliable framework that can be used to accurately determine whether a specific action was constitutionally reasonable. The following sections will untangle the contours of the Graham factors and give comprehensive (but not exhaustive) examples of how the facts of a use-of-force event may be evaluated under the Fourth Amendment.
Governmental Interest
Sociologist Egon Bittner famously identified the “unique competency of the police” as their ability to intercede to address “something that ought not to be happening and about which someone had better do something now.”20 Police, in other words, are uniquely trained and equipped to deal with situations in which the use of force may become necessary. And yet, it is inescapably true that not every aspect of policing will justify the use of force.
To understand this point, consider first the nature of the police function itself. That is, what is it that police do in a free, democratic society? Political scientist James Q. Wilson has offered perhaps the broadest and most useful taxonomy of the police function, which he describes as consisting of three types of tasks: officers engage in law enforcement, provide services, and maintain order.21 Unfortunately, those tasks are not always clearly distinct; certain situations may require officers to engage in two or even all three of those tasks simultaneously, as with an officer who makes an arrest (law enforcement) to break up a house party (order maintenance) that has been the subject of a neighbor’s complaint (service provision).
As that example suggests, it can be difficult to identify the police function with any precision precisely because the nature of the job requires officers to play a host of different roles. Officers detect, investigate, and apprehend law breakers, but decades of empirical study have established quite convincingly that only a relatively small percentage of most officers’ time is dedicated to criminal enforcement.22 Police officers are also called upon to perform a variety of services that do not in themselves constitute enforcement, even when there is a potential for enforcement activity. Officers provide at least rudimentary forms of marital, substance-abuse, and mental-health counselling; first aid; animal rescue; and auto-mechanical assistance and repair. They direct traffic, escort funeral processions, and manage crowd control during parades, sports events, rallies, and peaceful protests. They drive people from place to place, perform welfare checks, and convey death notifications to next of kin. They educate the public not just about criminal law and highway regulations, but also about personal safety, home security, and child-abduction prevention. They serve as community organizers, supporting neighborhood-watch groups and youth athletic leagues. They look into suspicious activity, suspicious persons, suspicious vehicles, suspicious packages, even suspicious smells23 and an array of everyday items that have, at some point, struck someone as suspicious enough to call the police (including, according to news reports, a cucumber,24 a burrito,25 and a quarter26). And this only begins to scratch the surface of the nonenforcement services that police provide.27
Given this wide range of duties that officers perform, when can they legitimately use force? The answer to this question is of tremendous practical significance, but the question has rarely received an explicit answer. Clearly, officers cannot use force in every aspect of their jobs. Indeed, any number of commentators, including the Supreme Court, have lamented the use of force in situations that do not justify it. As far back as the 1968 case, Terry v. Ohio, the Court disapprovingly observed that force and intimidation were sometimes used to “maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.”28 The Supreme Court’s lamentation is well-founded; officers may be within their rights to maintain a certain image, but clearly the need—real or imagined—to maintain “the power image of the beat officer” cannot justify the use of force.
That, however, is an easy case: establishing police dominance is not an independent, legally cognizable aspect of the police function. But even when officers are engaged in activities that are universally agreed to fall within the police function, they do not get carte blanche to use force. Officers are expected to engage in crime prevention, for example, and they indisputably have legal authority to do so. An officer may organize events for that purpose, such as educating community groups and neighborhood associations about how to reduce opportunistic crime. An officer may counsel someone at length about the perils of engaging in criminal activity, using a combination of promises and warnings. An officer may attempt to build a long-term relationship with an at-risk youth, encouraging them to join a sports team that the officer coaches. It would be inappropriate and deeply problematic, however, for officers to physically beat someone to deter them from breaking the law at some point in the future.
Similarly, officers have the legal authority to investigate crimes. Further, they clearly have the legal authority to forcibly investigate crimes. An officer with reasonable suspicion to believe that an individual