leading up to it. But this does not mean we should refuse to let juries draw reasonable inferences from evidence about events surrounding and leading up to the seizure.81
We believe it is not only appropriate, but essential for courts to look beyond the “final frame” to determine whether a use of force was objectively reasonable. As we discussed earlier in this chapter, an officer’s use of force inherently infringes on highly valued personal and governmental interests; it is therefore constitutionally justified only to the extent that those interests are outweighed by the state’s interest in law enforcement, maintaining public order, and officer safety. It is conceptually and, we believe, constitutionally unsound for reviewers to overlook or ignore the extent to which officers contribute to the creation of a threat to one of those state interests.
We do not mean to suggest that an officer’s use of force will always, or even generally, be unreasonable just because the officer put herself in harm’s way; in a great many situations, officers are expected to do exactly that. However, when an officer fails to use reasonable tactics given the situation or otherwise contributes to the creation of a threat to a governmental interest in a way that violates professional norms—what some policing scholars have referred to as “officer-created jeopardy”82—the officer’s role in unreasonably bringing about the threatening situation should generally be understood to render unreasonable an otherwise reasonable use of force.
When it comes to the actual application of force, there are effectively two mechanisms by which officers attempt to overcome resistance: pain compliance and mechanical disruption. Pain compliance refers to the intentional infliction of pain as a way of discouraging the subject from continuing to resist or, phrased differently, as a way of encouraging the subject to comply with an officer’s commands. The paradigmatic example of pain compliance is a pressure point control hold, in which officers push on a sensitive spot on the body to inflict pain. Mechanical disruption, in contrast, works by physically overwhelming the subject’s musculoskeletal system. There is perhaps no better example of mechanical disruption than when multiple officers “dog pile” on top of a subject, using their weight to prevent the subject from rising; although the subject may experience discomfort, it is the combined weight of the officers, not the discomfort they’re inflicting, that prevents the subject from getting up. Unlike pain compliance, mechanical disruption does not depend on the subject’s perception of pain to be effective. The application of pain compliance techniques and mechanical disruption techniques are not mutually exclusive; the two can be used congruently. For example, officers might use their body weight to hold a subject to the ground (mechanical disruption) while also striking a subject in the large muscles of the upper back (pain compliance). Indeed, the same technique or weapon can involve elements of both pain compliance and mechanical disruption, although it is almost always fair to describe any given technique or weapon as primarily dependent on pain compliance or mechanical disruption to induce compliances or otherwise overcome a subject’s resistance.
The force option that officers apply should be assessed in terms of its potential harms, the harms that are reasonably foreseeable at the time force is applied. We discuss the gradations of harm more fully in chapter 6.
Conclusion
In this chapter, we reviewed the constitutional standard that applies in both civil and criminal cases brought in federal court. That standard, laid out most explicitly in Graham v. Connor, requires an officer’s use of force to be “objectively reasonable.” Determining whether a use of force is objectively reasonable requires “a careful balancing of the nature and quality of the intrusion on the individual’s . . . interests against the countervailing governmental interests at stake.” And that balancing, in turn, requires “careful attention to the facts and circumstances of each particular case,” with special attention given to what have become known as the Graham factors: “the severity of the crime at issue, whether the subject poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
This chapter provided a detailed roadmap for constitutional analysis, demonstrating how the Graham factors and other considerations can be viewed through the appropriate lens to determine the existence of a governmental interest that justifies the use of force, the existence of any threat to that interest, and whether the force used was proportional to the severity of the threat.
As a threshold point, reviewers must carefully determine what the operative facts are by considering what the “reasonable officer on the scene” would have perceived and the conclusions they would have drawn.
With that perspective in mind, 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: Without considering the force officers actually used in the incident under review, 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 guide the analyst to an answer. 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 the analysis should be terminated: 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.
2
The State Law Standard
Of the roughly 18,000 government entities in the United States that employ sworn officers, less than one hundred are federal agencies. The vast majority—over 15,000—are city police departments and county sheriffs’ offices. The remainder are a mix of state police agencies and special jurisdiction agencies that provide either general policing services to specific geographic entities (e.g., hospital, university, or transit police) or state-wide policing services related to a specific activity or narrow set of activities (e.g., fish and wildlife, alcohol control, or gaming police). Of the roughly 900,000 sworn officers in the United States, more than 750,000 work for state and local police agencies.1
As those numbers demonstrate, the overwhelming majority of police agencies and the vast majority of officers derive their authority from state law. State law sets the criteria for who can be an officer, establishing, inter alia, age restrictions, minimum education prerequisites, citizenship requirements, criminal history limitations, and physical and mental health standards. State law creates a regulatory framework through which minimum training standards are set, professional licenses are issued, and, at least in forty-four states, police certifications can be revoked. State law determines how police agencies are funded, how they are permitted to procure equipment and services, and how they are to keep and disclose various records. State law also authorizes officers to use force and insulates them from civil or criminal liability for doing so.
In short, state law is an important and relevant standard under which the use of force can be analyzed. We provide in this chapter an overview of when state law applies, what it applies to, and how it applies. The Appendix of State Laws, set out at the end of this book, provides the relevant statutory provisions and, when statutes are lacking, judicial opinions regarding the regulation of police uses of force in all fifty states.
When Does the State Law Standard Apply?
A plaintiff sues an officer, seeking monetary damages for a use of force that they allege was an intentional battery. The plaintiff dies of their injuries, and their estate files a wrongful death lawsuit. A local prosecutor
