wearing a t-shirt indicating that they are a member of the local college’s cross-country running team.
As those examples suggest, it is not the suspect’s behavior itself that drives proportionality analysis, it is the extent to which the suspect’s behavior threatens a governmental interest. Reviewers can assess the severity of a threat by considering subject characteristics, officer characteristics, encounter characteristics, and environmental factors. The lists below are intended to provide useful, but not exhaustive guidance as to relevant factors.
Subject Characteristics
The subject’s size;
The subject’s apparent age and physical condition (level of fitness, strength, speed, exhaustion, etc.);
The subject’s apparent psychological condition, including mental-health conditions and the influence of alcohol or drugs;
The subject’s apparent knowledge of or training in martial arts;
The subject’s conduct, including verbal statements and specific movements (body language) and their level of compliance or noncompliance at that point in the interaction;
The weapons held by or immediately accessible to the subject;
The subject’s apparent interest or intent in using or immediately obtaining weapons;
Officer’s prior contacts with or knowledge of the subject, including awareness of any prior history of weapon possession, violent resistance, or flight.
Officer Characteristics
The number of officers on scene able to physically interact with the subject and their positioning;
The officer’s physical size;
The officer’s physical condition (level of fitness, strength, speed, exhaustion, etc.);
The officer’s training in combative or defensive tactics;
The weapons held by or immediately accessible to the officer;
The weapons or physical techniques available to the officer at the time.
Encounter Characteristics
The nature of the interaction, including the severity of the suspected offense, if any;
The physical proximity of the subject to officers and bystanders;
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 extent to which the subject has been effectively restrained and the extent of their ability to resist or flee despite being restrained;
Environmental Factors
The nature of the immediate area, including the presence and reaction of bystanders, if any;
Environmental factors that could affect officer or subject sensory perceptions, including lighting, background noise, and so on;
Weapons potentially available to the subject and officers, including weapons of opportunity (e.g., a shovel laying on the ground) and weapons worn by the officers themselves;
The availability of obstacles that affect the suspect’s or officer’s ability to move freely or close the distance;
The availability of cover and concealment;
Any environmental options that would enable or restrict the subject’s resistance or the officer’s use of force.
Additional Factors
The ultimate question in proportionality review is whether the force an officer actually used was appropriate under the circumstances. That requires reviewers to compare the nature and severity of the officers’ actions against the presence, nature, and severity of an imminent threat to a governmental interest. A superficial description of an officer’s use of force is an insufficient basis for this analysis; reviewers must be attuned to whether and how an officer’s tactical decisions played a role in affecting the use of force, the mechanism by which a use of force is intended to address the threat to a governmental interest, the likely harm of the officer’s use of force, and the availability of alternatives. We provide a brief overview of these topics here. We discuss tactics more fully in chapter 5 and explore the tools, techniques, and weaponry which with officers use force in chapter 6.
There are some situations in which a subject presents an imminent threat to a governmental interest only because of the decisions made and actions taken by the police officer. Imagine, for example, a paraplegic subject in a nonfunctional electric wheelchair who is aggressively brandishing a knife. It seems clear that if an officer walked up to within arms’ reach of the subject, the subject’s actions would present an imminent threat to the officer’s safety and potentially to other governmental interests. It seems equally clear, however, that if the officer maintained a safe distance—perhaps taking cover behind their patrol car—the subject either would not present an imminent threat to a governmental interest or would not present a very significant threat.
Regrettably, the Supreme Court has never definitively explained whether an officer’s decisions and actions prior to a use of force—sometimes referred to as “pre-seizure conduct” in the constitutional context—are relevant factors to consider when evaluating the reasonableness of the use of force. There is tension about this within Graham itself. On the one hand, the Court wrote that uses of force are to be reviewed under the “totality of the circumstances,” which can certainly be read broadly enough to include pre-seizure conduct. On the other hand, the Court wrote that the constitutional standard of objective reasonableness “must embody allowance for the fact that police officers are often forced to make split-second judgments . . . in circumstances that are tense, uncertain, and rapidly evolving,” which can be read to suggest what is referred to as “final frame” analysis: focusing exclusively on the moment at which force is used.76
The United States Courts of Appeals are split on this question. The First, Third, Sixth Circuit, and Tenth Circuits have held that pre-seizure conduct, including an officer’s tactical decisions, is relevant to the determination of whether the ultimate use of force is objectively reasonable.77 The Ninth Circuit had previously held that pre-seizure conduct is relevant if it involves an intentional and reckless provocation that amounts to an independent constitutional violation,78 but that approach was overturned by the Supreme Court in 2017.79 The Fourth and Seventh Circuits have held that pre-seizure conduct is irrelevant to the constitutional standard.80 The United States Court of Appeals for the Eighth Circuit has provided inconsistent guidance, writing:
Unreasonable police behavior before a [seizure] does not necessarily make the shooting
