simply is not a relevant standard that can be used to analyze an officer’s use of force.
To be constitutional, seizures—including seizures involving uses of force—must be justified both at their inception and throughout their duration. The question in use-of-force cases is whether the application of force (or the threat of force against an individual who has been seized by submission to a show of police authority) exceeds the scope of what the situation allows. An officer can be legally justified in seizing an individual—for example, stopping a vehicle after observing a traffic infraction—without necessarily being justified in the use of force. In such a circumstance, the use of force will offend the Fourth Amendment’s prohibition of unreasonable seizures even when the traffic stop itself did not.
In the remainder of this chapter, we will discuss how the Fourth Amendment standard is best understood in situations when it is applicable to an officer’s use of force.
How Does the Constitutional Standard Apply?
In Graham v. Connor, the Supreme Court held that because the Fourth Amendment prohibits unreasonable seizures, the ultimate question in use-of-force cases is whether the officer’s actions were “objectively reasonable” under the circumstances. That analysis requires, the Court said, “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.” To guide the constitutional analysis, the Court set out three factors that are widely known as the “Graham factors.” First, the severity of the crime at issue must be considered. Second, the immediate threat to officers and others posed by the subject must be evaluated. Third, whether the subject is actively resisting or attempting to evade arrest by fleeing must be taken into account. The Court added additional factors by recognizing the importance of the proportionality of the force used and the totality of circumstances. These considerations make the analysis of objective reasonableness more complicated by requiring the analyst to consider aleatory elements of the use of force. As the forgoing suggests, use-of-force investigations are “highly fact-intensive.”17
To navigate the constitutional use-of-force analysis, this section offers an analytical roadmap broken down into the following three elements: (1) deference and the “reasonable officer,” (2) governmental interests, and (3) proportionality. At each step, our roadmap addresses the three major tenants of the Graham decision, but where most accounts take the three Graham factors at face value, we illustrate how they are more properly viewed as three categories, each of which contains a number of subsidiary factors that can influence how any given use-of-force incident is analyzed. We also go beyond Graham, demonstrating that the factors that fit within the Graham categories are not the only relevant considerations. Graham itself suggests that the three identified categories were not intended to be exhaustive; they are “include[ed]” in “the facts and circumstances of each particular case” that evaluators must review, but they are hardly the only relevant factors to consider when determining whether a use of force was reasonable.
Fully analyzing a use-of-force incident under the constitutional standard, then, requires understanding and applying the full extent of the Graham factors as well as understanding what else in the totality of the circumstances can affect the conclusion. Graham and subsequent decisions have offered, at best, a partial view of the analytical process that should be applied to use-of-force incidents. Each case analyzed by the courts applies relevant portions of the test, emphasizing some factors over others and omitting some considerations entirely. This is as it should be; the facts of each case are unique, and a recitation of irrelevant considerations would be unnecessary. But while the fragmented application of the rules is appropriate when reviewing the specific facts of an individual case, we seek here to provide a more global perspective.
Deference and the “Reasonable Officer on the Scene”
In use-of-force situations, officers seldom have the opportunity to seek guidance from a peer, supervisor, or manual. Instead, they must apply their training, knowledge, and experience to a specific incident as one of an unlimited set of possible scenarios in which an error in judgment could have catastrophic consequences. The Supreme Court has adopted an objective analysis, a deferential approach that is perceived as necessary because of the inherent stressors in use-of-force situations and the resulting uncertainty. While deference to officer decision making is appropriate, we seek here to identify the contours and limits of that deference.
As the Court has said, analyzing whether a use of force was objectively reasonable requires “careful attention to the facts and circumstances of each particular case.” But which facts? How are the operative facts and circumstances to be properly identified? After all, there is the potential for both factual and interpretive disagreements. Factual disagreements arise when individuals disagree about the underlying facts, as when two eyewitnesses report seeing two different things. Interpretive disagreements arise when individuals agree on the underlying facts, but disagree as to the conclusions that can be drawn from those facts. For example, two people can both see a subject make the same physical actions and still disagree about whether the subject’s actions presented an immediate threat to the officers. In Graham v. Connor, the Court provided the touchstone for resolving both factual and interpretive disagreements, stating:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . The calculus of 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—about the amount of force that is necessary in a particular situation.
Thus, the formula for determining the reasonableness of an officer’s use of force has moved from what the Supreme Court had labelled a “purely objective” analysis to a more realistic, but more complex standard that has been called “subjective objectivity.”18 The operative facts, circumstances, and conclusions are those that a hypothetical “reasonable officer on the scene” would have perceived or come to if they had been in the position of the actual officer. In short, Graham instructs courts to rely on what the “reasonable officer” would have perceived, which is not necessarily what the officer actually perceived. To clarify this admittedly confusing point, consider the following examples.
First, consider a situation in which an officer reasonably perceives a threat. For example, an officer uses force against a subject who was aggressively waving a rigid, shiny object with a black handle. If, given the situation, the hypothetical “reasonable officer” would have perceived the object as a knife, then the courts applying the constitutional standard will analyze whether the officer’s use of force was a reasonable response to a subject waving a knife, even if it later turns out (with the 20/20 vision of hindsight) that the knife was a harmless plastic toy.
Second, consider a situation in which an officer unreasonably perceives a threat. For example, an officer uses force against a subject who was standing quite still with their empty hands out at their sides, fully compliant with the officer’s commands. The officer explains, quite truthfully, that they perceived that the subject had been aggressively waving a knife. Given these facts, the “reasonable officer” in this situation would not have perceived the subject the same way. Therefore, the courts will analyze whether the officer’s use of force was a reasonable response to the compliant subject because that would have been “the perspective of the reasonable officer on the scene,” even though that is not what the officer, in fact, perceived.
Reviewers can, and typically must, start their analysis by identifying the
