from the motorist (creating distance) or could move to a position that keeps part of a vehicle between them and the motorist (using a physical obstacle to increase the amount of time it would take for the motorist to reach them), but the officer would not be justified in using force at that point because there was no perceptible intent to harm. Although there was some risk, there was no apparent intent to cause harm, and therefore there was no threat. And with no threat, there was no governmental interest at stake, and no justification for using force. The same is true in other situations; the fact that someone is capable of causing harm, has the opportunity to cause harm, or has the intent to cause harm does not justify a use of force: all three factors must be present.
Understanding the difference between risk and threat makes clear that a use of force cannot be predicated on an officer’s speculative articulation of what an individual might have done or the threat that could have existed if the individual were to have taken certain actions. Analysts must be alert to the problematic tendency of officers to rely excessively on hypotheticals. For example, an individual who is standing on loose rocks could reach down and pick up a rock and could attack an officer with that rock, but those possibilities do not by themselves justify the use of force. Even if the subject is refusing to obey an officer’s commands at the time, it is not reasonable to conclude that merely standing in proximity to rocks creates a threat of being struck by a rock. Sometimes officers attempt to justify their actions on the basis of predictions that are even more far-fetched; vague pronouncements that the subject was threatening are insufficient, as are unreliable recitations of generic and worn indicators such as the look in a subject’s eyes. Purely generalized concerns about a safety risk do not amount to an actual threat.53 The existence of a bona fide threat must be predicated on an officer’s articulation of details and circumstances that would lead a reasonable officer to conclude that the individual was physically capable of causing harm, was in a position to physically inflict that harm, and had manifested the apparent intent to do so. For a use of force to be constitutionally permissible, an officer must have an objectively reasonable belief that something is happening, not just that something might possibly happen.
That is not to say that officers must wait until they or another person are under attack. The threat must be immediate, but it need not have fully manifested into an actual assault. There is, for example, no requirement that a police officer wait until a subject shoots to confirm that a serious threat of harm exists.54 The legal standard of “immediate threat” allows for situations in which an officer uses force to preclude an assault by reacting to a threat before it progresses into an assault.55 As in other situations, of course, officers must be able to articulate why the situation presented a threat as that term is properly understood. Let us return to the example from the prior paragraph, of the subject who is standing in proximity to rocks. At that point, it would be inappropriate for officers to react as if they were threatened by a rock (although they are free to consider or use violence-reduction techniques, alternatives to force, or tactical options that may mitigate the risk and avoid a potential threat). If the subject ignored officers’ verbal commands and reached for a rock, however, it would be reasonable to conclude that there was a threat of being struck even before the subject lifted the rock from the ground. At that point, the use of force may be objectively reasonable because delay or inaction on the officers’ part may put them into the position of being unable to prevent the threat from manifesting into harm; once the subject throws the rock, it is too late for the officers’ actions to make any difference.
Active Resistance and Attempts to Evade Arrest by Flight
Like the first Graham factor—the severity of the crime—the third factor implicates the government’s interest in detecting, investigating, and apprehending criminals. The government has an interest in investigating individuals whom officers reasonably suspect are involved in criminal activity and in apprehending individuals whom officers have probable cause to believe committed a crime. Those interests are frustrated when an individual successfully resists or flees from officers. Thus, to protect the government’s interests in investigation and apprehension, officers may use force to overcome resistance, including to prevent escape. The relevant question, then, is twofold: First, whether the government has an interest in detaining or apprehending the individual in question in relation to a crime. Second, whether the individual’s actions create a realistic possibility that the subject will avoid detention or apprehension.
As with threats to officer safety, officers need not wait until a subject’s resistance or flight is fully manifested before using force to address it. At the same time, however, the risk of resistance or flight by itself does not justify the use of force—there must at least be an articulate threat of resistance or flight, if not actual resistance or flight. In that vein, it is important to note that purely verbal resistance—statements indicative of noncompliance—do not constitute a threat of active resistance or attempts to evade arrest by flight. Such statements can indicate that there is a risk that the individual may resist or flee, of course, and officers are free to address that risk using a range of non-forceful options including conflict avoidance and violence-reduction techniques, alternatives to force, or tactical options that may mitigate the risk and avoid the potential threat of resistance or flight. They cannot, however, use force until there is a threat or manifestation of active resistance.
Articulating an individual’s active resistance or attempt to evade arrest by flight requires officers to explain how the individual physically resisted or attempted to flee. Relevant observations include, but are not limited to:
The subject’s conduct, including verbal statements and specific movements (body language);
The subject’s apparent physical condition (age, size, strength, apparent skill level, physical condition such as injury or exhaustion, etc.);
The subject’s apparent mental condition (the apparent influence of mental illness, drugs, or alcohol, for example);
The degree to which the subject has been effectively restrained and their ability to resist or flee despite being restrained;
The degree to which the subject’s movement has been limited even when the subject has not been restrained (e.g., whether the subject is seated, surrounded by officers, etc.);
The environmental options that would enable or restrict flight; and
Prior contacts with the subject or awareness of any propensity for resistance or flight.
As a reminder, the sole focus at this point in the inquiry is the binary question of whether there is a governmental interest. Only when the presence of a governmental interest is confirmed does one continue the analysis by weighing the relative strength of the governmental interest against severity of the officer’s use of force.
Additional Factors
The three Graham factors—severity of the crime, immediate threat, and flight—can help reviewers determine the existence of a governmental interest that can justify the use of force in any given encounter. Reviewers should be aware, however, that additional factors can establish the existence of a governmental interest, potentially justifying the use of force, even when the Graham factors seem inapplicable. This is the case because the Graham factors are primarily concerned with two governmental interests—facilitating the criminal justice process and protecting officer safety—but are less useful when it comes to determining whether the government has an interest in maintaining public order (which, as described above, includes preventing crime and preserving public safety).
Some courts have identified
