factors themselves do not. The Sixth Circuit, for example, has adopted what it described as “a more tailored set of factors to be considered in the medical-emergency context . . . [w]here a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer.”56 Those factors are:
1 (1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?
2 (2) Was some degree of force reasonably necessary to ameliorate the immediate threat?
3 (3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?57
The first question posed by the Sixth Circuit addresses the issue of whether a governmental interest exists, while the second question addresses whether the governmental interest justifies the use of “some degree of force” and the third question addresses the extent to which force was permitted under the circumstances.
Other courts and commentators have identified two noncriminal governmental interests that can, at least in certain circumstances, justify the use of some force: community caretaking and involuntary commitment.
Community Caretaking
Police officers are charged not just with the enforcement of criminal law, but also with preserving the peace and security of their communities. As the Court has described, the community-caretaking function is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”58 As federal judge and legal scholar Debra Livingston has written:
“Community caretaking” denotes a wide range of everyday police activities undertaken to aid those in danger of physical harm, to preserve property, or to create and maintain a feeling of security in the community. It includes things like the mediation of noise disputes, the response to complaints about stray and injured animals, and the provision of assistance to the ill or injured. Police must frequently care for those who cannot care for themselves: the destitute, the inebriated, the addicted . . . and the very young. They are often charged with taking lost property into their possession; they not infrequently see to the removal of abandoned property. . . . Community caretaking, then, is an essential part of the functioning of local police.59
Not all aspects of the community-caretaking function will establish a governmental interest that justifies the use of coercive force, but some aspects of community caretaking implicate the government’s interest in maintaining order. The preservation of public safety is one such example; although variations in state law and among the federal courts has shaped the community caretaking doctrine in different ways, all jurisdictions recognize that there is a governmental interest in protecting an individual from physical harm. The Fourth Amendment incorporates this concept by authorizing officers to use coercive authority to prevent imminent, serious physical harm by, for example, forcing entry into a private home or detaining one or more individuals.60
The governmental interest in order maintenance can justify the use of force even when the Graham factors do not appear or apply only weakly. Consider the facts of Ames v. King County: paramedics were attempting to render aid to an unconscious man who appeared to be overdosing as a result of a suicide attempt, but were being hindered by the man’s mother. The Graham factors would not clearly justify a use of force. The crime, if there was one, was not very severe; Washington Criminal Code § 9.08.040 does criminalize resisting medics attempting to discharge their legal duties, but the statute makes such resistance a gross misdemeanor. There was no threat to the safety of officers, and the subject was not attempting to evade arrest through active resistance or flight. Despite the limited applicability of the Graham factors, there was an imminent threat to the governmental interest in order maintenance: the mother was preventing the medics from providing potentially life-saving aid. The United States Court of Appeals for the Ninth Circuit correctly held that the officer on scene was justified in using force to subdue the mother so that medical workers could treat her son.61 In short, the need for officers to perform or facilitate a community-caretaking function established the existence of a governmental interest that served as a sufficient predicate for the use of force.
This does not mean that any use of force is permissible in community-caretaking situations—that question is best treated as an issue of proportionality, which we address later in this chapter. Our point here is more limited: a valid governmental interest can justify the use of force under the constitutional standard even when the Graham factors offer little guidance.
Involuntary Commitment
While many different situations fall within the ambit of community caretaking, it is worth addressing one that officers encounter with some regularity: the involuntary evaluation or treatment for psychiatric/psychological issues or substance abuse. Officers frequently encounter individuals in situations in which there is a substantial threat of self-harm, either through an active suicide attempt or through the physical neglect that can accompany substance abuse, or a substantial threat of harm to others for similar reasons. In such cases, it is not at all unusual for the individual to refuse psychological, psychiatric, or medical evaluation and treatment. Depending on state law, officers may have the authority to initiate some form of involuntary evaluation process on their own, to seek judicial approval, or to enforce an involuntary commitment order initiated by a third party, such as a medical professional. “The government has an important interest in providing assistance to a person in need of psychiatric care,” as the Ninth Circuit has written. Once the procedural requirements are satisfied such that officers have authority under state law to take someone into custody, the presence of that legitimate state interest can justify the use of force.62
The first step in analyzing any use of force is identifying whether there was a governmental interest at stake. This question may be framed as follows: did the governmental interests at stake justify some use of force? The answer to that question depends on whether a legitimate governmental interest would have suffered had officers not used force. The Graham factors and additional considerations discussed in the preceding pages can help answer that question. If the answer to that question is no—either because there is no legitimate governmental interest or because there is no threat to the government’s interest that could be resolved with force—then, for constitutional purposes, the use of force was unjustified. If the answer to that preliminary question is yes, the analysis must continue by reviewing whether the actual force used was appropriate. We take up that question in the next section.
Proportionality
Once a legitimate state interest has been identified, the next step of the inquiry is to determine whether the type and amount of force used was proportional to the apparent threat to the governmental interest. That is, after concluding that the subject’s actions presented a threat to a governmental interest that justified some use of force, reviewers must determine whether the threat to the governmental interest justified the force that officers actually used. As the Supreme Court stated in Graham v. Connor, “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.”
