may be the case, but it only serves to prove our point: the government’s interest in apprehension is the same, even if the government plausibly has asymmetric concerns about safety.
Although the severity of the crime is of little practical use in analyzing the government’s legal interest in apprehension, it may still be relevant from a policy perspective. We address this point in chapter 3.
Second, separate and apart from the role it plays in establishing the government’s interest in apprehension, the severity of the crime remains an important consideration in identifying the strength of the government’s interest in safety—the safety both of community members and of the officer as a government agent. The interest in safety is a sliding scale, reflecting the different physical threats that the government seeks to protect against. In this context, the seriousness of the underlying crime the individual is suspected of committing serves as a proxy for how much of a threat to safety the individual is: the more serious the crime, the more dangerous the subject may be presumed to be. A violent crime may indicate that a subject has both the capacity and the willingness to engage in future violence. Separately, an individual who is suspected of committing a serious crime (even a nonviolent crime) may be more likely to violently resist officers in an effort to avoid a lengthy prison sentence than is an individual who is suspected of committing a minor crime and who therefore faces correspondingly minor punishment. The severity of the crime, then, can be a proxy for the danger that an individual may present to officer or others.
Importantly, assessments of individual dangerousness based on the severity of the crime are only valid in the absence of other, more reliable information. When, for example, an officer lacks reliable information about whether a subject is armed or dangerous, it is entirely logical to conclude that a robbery suspect is more likely to be armed and dangerous than a shoplifter. As the officer gathers additional information, however, the severity of the crime becomes less useful as an indicator of dangerousness. If an officer is approaching a naked robbery suspect whose hands are observably empty, for example, the severity of the crime is no longer an accurate proxy for any estimate about the safety risk that the subject presents. Instead, the severity of the crime as the basis of a threat assessment is supplanted by the officer’s observations.
In sum, the severity of the crime is not a relevant consideration as to the strength of the government’s interest in detaining or apprehending suspected criminals. The severity of the crime can be an important gauge for assessing an individual’s dangerousness, but only insofar as other, more reliable information is not available.
Immediate Threats, Active Resistance, and Attempts to Evade Arrest by Flight
Assessing whether a use of force was reasonable requires asking whether the “the nature and quality” of the use of force is proportional in light of the threat the individual presented to a governmental interest. This requires comparing the officer’s actions to the suspect’s actions. The second and third Graham factors—the immediate threat to officers or others and the suspect’s active resistance or attempts to evade arrest by flight—are both concerned with the nature of the suspect’s actions, which we address in this subsection. We discuss the officer’s actions below.
When officers assert their authority by instructing a civilian to do something—to back up, stop, provide identification, exit a vehicle, or to put their hands behind their back, for example—the officer must assess the actions of the individual on the receiving end of that command. If the individual resists, the officer must assess both the nature of the threat and the severity of that threat.
The Nature of the Threat
The most common method for determining the nature of the threat is by looking at the type of behavior that the subject is engaged in, but reviewers are cautioned against mechanically applying this approach. The question in any given case is not whether the officer’s use of force was proportional to the suspect’s physical actions qua behavior. Instead, the focus should be on whether the officer’s use of force was proportional to the threat that the suspect’s actions presented to the governmental interests identified in the first part of the analysis: facilitating the criminal justice process, maintaining public order, and preserving officer and civilian safety. The subject’s behavior is pertinent, of course, but must be considered in light of the greater context of the interaction; focusing exclusively on the nature of the subject’s behavior can lead to nonsensical results.
To see why, consider “active resistance.” Mentioned specifically in Graham, active resistance is a widely used phrase within policing74 that typically refers to nonaggressive physical actions taken by an individual to delay, defeat, or evade an officer’s attempts to take them into custody, physical movements or actions (as distinct from inactions) that are unlikely to harm the officer or others.75 An arrestee who pulls away from officers and begins to flee has taken two separate actions that both constitute active resistance (pulling away and running).
Unfortunately, however, that taxonomic approach does not provide a reliable foundation for constitutional analysis; focusing on the nature of the subject’s behavior conflates a suspect’s physical movements with a particular threat to a governmental interest. Rigidly applying this approach, for example, would suggest that active resistance threatens the government’s interest in facilitating the criminal justice process, but not the government’s interest in officer or public safety. Neither of those things is necessarily true. A hyper-obese octogenarian holding an oxygen tank may pull away from officers and begin to flee, and while their actions certainly constitute active resistance, the subject may well offer no actual threat to the government’s interest in apprehension. Similarly, while a subject who pulls away from an officer and begins to flee after shoplifting a pack of gum threatens only the governmental interest in apprehension, a confirmed serial killer who engaged in the same behavior also presents a threat to public safety.
In short, the nature of the threat to a governmental interest cannot be reliably assessed by looking exclusively at the resistive behavior in which the subject is engaged. Additional context is necessary.
Severity of the Threat
Determining that the suspect’s behavior poses a threat to a governmental interest is only part of the analysis. Reviewers must then determine the severity of the threat that the suspect’s actions present. That is, having determined the nature of the threat, reviewers must determine the likelihood that the threatened harm was imminent. Note that this requires reviewers to engage in both a factual and counterfactual assessment of the timeline. Factually, reviewers must determine what happened and when it happened; doing so is necessary to assess the existence and severity of a particular threat at the time force was used. Counterfactually, reviewers must make at least some effort to assess what would likely have happened had the officer not used force at that moment.
As with the nature of the threat, a superficial assessment based exclusively on the subject’s behavior is insufficient. Consider, for example, a subject who is kicking and punching an officer; clearly, that subject is engaged in assaultive resistance. A mechanical review of the subject’s behavior would lead a reviewer to conclude that officers are justified in using force to protect themselves from assaultive resistance. If, however, the subject is an unarmed and physically diminutive ten-year-old, for example, the threat to officer safety is minimal; the use of severe force is inappropriate in that case even if it might be appropriate against a physically larger subject who was doing the same thing. Similarly, pulling away from officers or fleeing on foot is commonly classified as active resistance, presenting a potential threat to the government’s interest in apprehension, but the same actions present very different levels of threat when the subject is a morbidly obese octogenarian (assuming such an individual
