rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test, to the use of a particular type of force in a particular situation.” Instead of setting out the circumstances in which deadly force is constitutionally permissible, which is how Garner had been interpreted up until 2007, the Harris Court understood Garner to be an example of Graham’s reasonableness test. This represented a rather tortured rewriting of Garner—the Harris Court was interpreting the Garner opinion, written in 1985, to apply a standard that would not be articulated until Graham was decided in 1989—but holes in the space-time continuum aside, Harris suggests that, for purposes of proportionality, there is no meaningful difference between deadly force and less-lethal force: “all that matters is whether [the officer’s] actions were reasonable.”69
This suggestion is called into question, at least to some degree, by the fact that Scott v. Harris itself appears to have followed the Garner rule. In Harris, an officer used his vehicle to ram a fleeing motorist, causing the fleeing vehicle to go into an uncontrolled spin and crash. The Court described the events leading up to the ram as “a dangerous high-speed car chase that threaten[ed] the lives of innocent bystanders.” Indeed, the Court held that the fleeing motorist “posed a substantial and immediate risk of serious physical injury to others.”70 A simple application of the Garner rule to the facts as the Court understood them leads inevitably to the conclusion that the use of deadly force in that case was proportional.
After Harris, it is clear that deadly force is proportional when officers are confronted with a significant threat of death or serious bodily injury. What is unclear, at least at this point, is whether deadly force may be constitutionally proportional in other circumstances as well. Although Garner and Harris both represent useful touchstones in evaluating the constitutionality of deadly force, evaluators are cautioned that proportionality assessment in any context requires an extensive review of the pertinent facts and circumstances, including the factors laid out in Graham.
Graham Factors
In the following pages, we discuss how each of the Graham factors relate to the determination of whether an officer’s use of force was proportionate to the apparent threat to a governmental interest.
The Severity of the Crime
The severity of the crime is relevant to proportionality analysis in two distinct ways: as an indication of the strength of the government’s interest in apprehension and, separately, as a measure of the potential for a physical threat, implicating the government’s interest in safety. We address each in turn.
First, it is often taken for granted that the severity of the crime is a measure of the government’s interest in facilitating the criminal justice process through apprehension. The assumption is that the government has less of an interest in seizing individuals who are suspected of low-level crimes than it does in seizing individuals who are suspected of more serious crimes. That assumption is logically translated into the use-of-force analysis, as reflected by the following syllogism: if the proportionality of a use of force depends on the strength of the governmental interest, and if the government has less of an interest in seizing individuals suspected of committing minor crimes, then officers are only justified in using lesser levels of force against such individuals. That conclusion grows out of the entirely intuitive perception of the relative strength of the government’s interest in minor and serious crimes. As a strictly legal matter, the logic is flawed. However, it is quite relevant as a matter of policy.
Legal analysis commonly correlates the severity of the crime to the strength of the government’s interest in criminal enforcement. In the context of searches, for example, the Fourth Amendment generally permits officers to force warrantless entries into private residences when there is an exigent need to preserve evidence of a crime, but the Supreme Court has held that officers may not do so when the crime is a minor offense.71 The same thing is true when officers are in hot pursuit; officers can enter a private home when they are chasing a suspect who is thought to have committed a serious crime, but they cannot do so when the suspect has committed only a minor crime.72 In both cases, the underlying logic is that the governmental interest in enforcing minor crimes is not strong enough to justify the intrusion, even though the interest in enforcing a more serious crime would be. Some courts have applied the same approach in the use-of-force context.73
We believe this association is misguided in the use-of-force context. In fact, the relative severity of the crime is of minimal use as a legal measure of the government’s interest in apprehension. That assertion seems counterintuitive, as the government routinely dedicates more resources to investigating and apprehending an individual who commits a serious crime than it does for an individual who commits a minor crime. A police agency may be willing to extradite an armed robber from across the country, for example, and at the same time be unwilling to extradite a shoplifter from a neighboring county. Similarly, multiple police agencies may invest resources in a joint task force dedicated to apprehending wanted criminal suspects, but that task force may be directed to prioritize serious offenders and effectively ignore individuals who have warrants for minor crimes. Those are real world examples, but it is worth considering that agencies could extradite everyone or direct a fugitive-apprehension task force to go after suspects alphabetically, regardless of the severity of the underlying crime. Agencies have the legal authority to do so, but they do not always exercise their full authority for pragmatic reasons: often because they lack sufficient resources or are unwilling to spend political or social capital in particular ways. Further, it is worth remembering that, in the aggregate, agencies often dedicate substantial resources to the investigation and apprehension of individuals who commit what are, at best, minor crimes. As those examples demonstrate, the strength of the government’s interest as a policy matter is quite distinct from the strength of the government’s legal interests.
As in the context of extradition, the severity of the crime is legally irrelevant when it comes to using force to advance the government’s interest in apprehension in order to facilitate the criminal justice process. That irrelevance can be demonstrated with a simple hypothetical. Consider two criminal suspects who are identical in all respects: age, physical condition, and so on. Assume that the suspects are being arrested by identical officers in identical environments—the middle of otherwise empty parking lots—and that both suspects resist officers in exactly the same way: by attempting to pull away and run. Officers, in turn, use exactly the same type and amount of force to subdue both suspects. The only difference is that the suspects are being arrested for two different crimes: one of the suspects committed the pettiest of petty thefts by shoplifting a single piece of gum from a convenience store, while the other committed a number of serious but nonviolent felonies by defrauding hundreds of elderly victims out of millions of dollars. Clearly, there is a substantial disparity in the severity of the crimes at issue.
In our view, that disparity will not affect the use-of-force analyses; if the officer who arrested the misdemeanant acted unreasonably, the same will be said for the officer who arrested the felon. Conversely, if the officer who arrested the felon acted reasonably, the same will be said for the officer who arrested the misdemeanant. The only explanation for that result, which we believe is an accurate prediction, is that the government’s legal interest in apprehension is the same—or, rather, is not meaningfully different—in both cases.
An astute reader might ask at this point whether the officers in this example could perceive more of a threat from the subject who committed the more serious crimes because the severity of the punishment they are
