required for a Terry stop is obviously less demanding than that for probable cause, see United States v. Montoya de Hernandez, 473 U. S. 531, 541, 544 (1985).46
It is worth pointing out that there is disagreement among the various federal circuits as to whether the officer must have reasonable suspicion of a specific crime or whether it is sufficient for officers to articulate a more generalized reasonable suspicion that the person is involved in criminality of some type.47
Second, if there was a crime, what is the civilian’s relationship to that crime? The fact that an officer is interacting with someone and that the interaction is related to a crime—or, more accurately, that the officer had reasonable suspicion or probable cause to believe that a crime occurred—does not necessarily establish a governmental interest that would justify the use of coercive authority against that person. Given that there is a clear governmental interest in the detection, investigation, and apprehension of criminals, an officer’s coercive authority over an individual depends on the relationship of the individual to the crime. On one end of the spectrum, there is no governmental interest when the individual has no relationship with the crime. At the other end of the spectrum, there is substantial governmental interest in seizing individuals suspected of committing a crime. Officers can detain individuals whom they reasonably suspect of being involved in criminal activity and arrest individuals whom they have probable cause to believe committed a crime.
Between those two points, there may be a governmental interest when an individual has some relationship to a crime even if the individual is not suspected of committing the crime. For example, the individual may be the complainant, a witness, or a victim. As a constitutional matter, the Fourth Amendment provides limited authority for officers to detain individuals other than criminal suspects when “special needs” justify the detention—to somewhat simplify a complex area of law, “special needs” refers to a governmental interest other than the interest in stopping or arresting a criminal suspect. For example, officers serving a search warrant at a home may detain individuals inside the residence even when those individuals are not individually suspected of any wrongdoing. The “special needs” test defies easy application; it requires evaluators to balance the nature and degree of the government’s interest in the seizure against the severity of the intrusion. However, for purposes of determining whether there is a governmental interest, it is sufficient to acknowledge that the government does have an interest in obtaining information from complainants, witnesses, and victims. Whether that interest justifies an intrusive government action, including the use of force, is a question of proportionality, which we discuss in the next section.
Third, what is the nature of the crime(s)? Assuming an officer had reasonable suspicion or probable cause that a crime was committed, the final aspect of Graham’s “severity of the crime” factor is the nature of that crime. Under current law, the severity of the crime is not relevant to the presence or absence of a governmental interest; the government retains an interest in seizing suspected criminals even when the crime at issue is minor. It is important to reiterate that at this point in the analysis we are concerned only with the question of whether there is a governmental interest—we are not yet concerned with whether that interest justifies the use of force in any particular situation; we address that issue when we discuss proportionality.
In the context of determining whether there is a governmental interest, then, the nature of the crime is relevant only to the extent that it can establish whether the governmental interest is primarily or exclusively related to apprehension for criminal justice purposes or whether the government has an additional and distinct interest in maintaining public order or protecting officer safety. The essential question is whether the crime was violent or was otherwise so serious that it is reasonable to expect that the perpetrator will engage in future violence. If either of those conditions are met, then there is more likely to be a governmental interest in using force to protect officer and public safety. If neither of those conditions are met, the governmental interest is limited to detention or apprehension for criminal justice purposes.
For 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
