commands are satisfied, that our criminal justice institutions function after a crime [is believed to have] occurred.”
Second, the state has an interest in order maintenance: force can be justified “when it is necessary to eliminate a significant threat to public safety.” As described above, this interest is prospective; it can justify an officer’s actions only prior to the commission of a crime (or the infliction of harm on an individual) when the use of force is seen as a way of averting that crime (or harm). This interest can overlap to some degree with the government’s interest in law enforcement. Harmon provides the example of officers breaking up a fight between teenagers. At the moment they forcibly separate the combatants, the officers may be acting both in their order-maintenance capacity, by using force to prevent harm to the combatants and bystanders, and in their law-enforcement capacity, by arresting the individuals so they may be charged criminally. It is equally possible, however, for officers to use force to maintain public order even without a criminal predicate. “Thus, a police officer may use force to stop a distraught person from committing suicide or to break up a rowdy crowd that could injure by riot or stampede, even though doing so entails applying force against someone who is not yet violating a criminal statute.”33 In other words, a use of force to prevent an individual’s suicide may be entirely appropriate even though there is no crime on the statute books that would criminally punish the person’s actions. (Although all United States jurisdictions have repealed statutes that criminally punish suicide and attempted suicide, some states continue to treat it as a common law crime.34) It can, in any individual case, be difficult to identify when the state’s interest in order maintenance is fully manifested and when there is a threat that is sufficiently imminent so as to justify an officer’s use of force. “But even though the edges of legitimate police efforts to protect the public are contested and blurry, the [immediate] prevention of crime and the maintenance of public safety remain central to contemporary policing.”35
Third, the state has an interest in officer safety: force may be used to protect officers from physical threats to their safety. Notice, again, that this interest is prospective; it justifies force as a way to avert a physical hazard that would otherwise cause harm to the officer. The individual officer has a personal interest in their own safety, of course, but an officer has no greater interest in their own safety than anyone else does—if the individual interest in safety were the only interest at stake, we could simply apply the law of self-defense in situations in which officers used force to protect themselves.36 The state, however, has a distinct interest in protecting officers. Without officers, the state’s interests in law enforcement and order maintenance would be easily frustrated, leading Harmon to describe the interest in officer safety as “derivative” of the other two interests. “Because human police officers are the instruments by which the state pursues its interests in law and order, threats to those police officers often result in justified defensive force in excess of what would otherwise be required to serve the state’s interests.” It is for that reason that jurisdictions that have retained the common-law duty to retreat, which requires individuals who can safely retreat instead of using self-defense to do so, do not impose that requirement on police officers.37
Although the three factors are distinct, two or even all three may be present in any given case. This is particularly true when an officer has the legal authority to take a particular action or issue a particular order, when a subject attempts to impede that action or refuses to obey that order, and when the impediments or refusals constitute criminal violations. Consider a situation in which officers are authorized to enter a private home to check the welfare of a young child, but the child’s father violently rebuffs their efforts to enter the home. Officers in that situation may well be authorized to use force to check on the young child (order maintenance), to apprehend the father for frustrating the government’s interest in order maintenance by refusing to obey officers’ lawful commands (law enforcement), and to defend officers from the father’s attack (officer safety). Not all frustrations will amount to criminal activity, of course, but it is worth noting that any given situation may implicate more than one governmental interest.
To determine whether there was a legitimate governmental interest in any given case, reviewers should ask the following counterfactual question: if the officers had not used force, would one of the identified governmental interests have been thwarted or frustrated? At this point, the inquiry is somewhat abstract; if a governmental interest would have been thwarted or frustrated, some use of force may have been appropriate.
How, then, should we evaluate whether one of the requisite governmental interests existed, or could reasonably have been thought to exist, in any given situation? The Supreme Court itself has given us some guidance in the form of the Graham factors, but, as we will discuss, that guidance is incomplete.
Using the Graham Factors to Identify Governmental Interests
Here, we discuss how each of the Graham factors—the severity of the crime at issue, the immediate threat to officers and others, and whether the subject is actively resisting or attempting to evade arrest by fleeing—relate to the determination of whether there is a governmental interest in using force.
The Severity of the Crime
In this context, the “severity of the crime” factor should be understood to pose three distinct, but interrelated questions about the nature of the officer–civilian interaction: First, did the officer have cause to believe that there was a crime? Second, if so, what is the relationship of the subject to that crime? Third, what is the nature of the crime? We address each question in turn.
First, did the officer have reasonable suspicion or probable cause to believe that there was a crime? Officers have the legal authority to arrest someone if they have probable cause to believe that the individual has committed a crime;38 that authority reflects the government’s interest in apprehending suspected criminals. It is difficult to describe the concept of probable cause with any precision. The Court has identified it as “a practical, nontechnical conception,”39 “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”40 The ultimate touchstone, as the Court has put it, is whether “a man of reasonable caution”41 would have concluded from the available evidence that an offense had been or was being committed. This requires “more than bare suspicion,” but “less than . . . would justify . . . conviction.”42 Within this fairly wide band, courts and commentators have come to inconsistent conclusions as to whether “probable cause” is, or should be, a “more-likely-than-not” standard.43
Officers also have the legal authority to detain someone so long as they have reasonable suspicion that the individual is involved in criminality;44 that authority reflects the government’s interest in, inter alia, investigating potential crimes. As with probable cause, the Court has rejected attempts to define reasonable suspicion with any degree of accuracy.45 Instead, reasonable suspicion is typically compared to, but identified as less than, probable cause, with the Court writing:
We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” Illinois v.
