the source of the operative facts. In assessing the constitutionality of force, the officer’s subjective observations must be filtered through the lens of the legal construct known as the “reasonable officer on the scene.”
This should not be read to mean that the only party in a position to evaluate an incident was the specific officer who used force. There has been an unfortunate tendency to read Graham as forestalling post hoc review, especially within policing itself. Officers and police executives can be far too quick, in our view, to dismiss any review, especially any critical review, as inappropriate “Monday-morning quarterbacking.” This defensiveness may be understandable, but it is misplaced; the Supreme Court’s admonition to rely on “the perspective of a reasonable officer on the scene” and to avoid “the 20/20 vision of hindsight”19 does not insulate officers’ decisions from meaningful, even critical, review. Instead, the Court’s admonition is a reminder that the review of an officer’s subjective observations must be conducted using only the information that was reasonably available to the officer at the time force was used.
It is important to realize that information developed after the use of force can shed light on the information that was reasonably available prior to the use of force. For example, if an officer states that a subject was reaching for that subject’s waistband and later investigation determines that the subject had a gun concealed in that waistband, the later investigation is probative as to the accuracy of the officer’s observation. That is, the fact that the subject had a gun in that location makes it more likely that the subject was reaching for their waistband, and that, in turn, makes it more likely that the officer truly did see—and that a reasonable officer would have seen—the subject reaching for their waistband. In short, the information gathered after the use of force may suggest that the officer’s observation prior to the use of force is more likely to have been accurate. If, on the other hand, subsequent investigation determines that the subject did not have a gun or other weapon, that finding calls the officer’s statement into question, suggesting the potential for misperception, flawed memory, or deception. A subject with nothing in their waistband is less likely to reach for their waistband, which makes it less likely that the officer actually saw the subject reaching for their waistband, which in turn means that it is less likely that a reasonable officer could have seen the subject reaching for their waistband. Here, the information gathered after the use of force suggests that the officer’s observations prior to the use of force are less likely to have been accurate. In either case, further investigation is required to identify whether the officer’s perceptions were reasonable. Critically, the later findings are not dipositive—the subject with the gun may not have reached for their waistband and the subject without the gun may have reached for their waistband for other reasons—but they can help reviewers identify the questions that need to be answered to identify what a reasonable officer on the scene could have perceived at the time.
The officer’s perceptions of the subject’s actions are not the only aspect of a use-of-force encounter that must be viewed through the subjectively objective frame: reviewers must do the same with the use of force itself. The reasonableness of a use of force depends on the risk inherent in the type and manner of the force being used, not the ultimate effect of that force. For example, firing a gun at an individual is properly considered deadly force because of the potential harm the bullet is likely to cause, even if the bullet only grazes the person’s leg, causing a superficial injury, or misses entirely. Similarly, using a closed fist to strike a subject in the face when the subject’s head is on the ground is properly considered a serious use of force because of the potential for harm, even if the strike results in only a minor injury. In either of those two cases, predicating the reasonableness inquiry on the ultimate injury would lead reviewers to incorrectly ask whether the use of minor force was appropriate. Clearly, that is the wrong way to approach those examples. The correct question is whether the use of deadly force or serious force, respectively, was appropriate under the circumstances. In short, the reasonableness of any use of force depends on the foreseeable harms that arise from the officer’s actions—that is, the harms that the “reasonable officer on the scene” would have anticipated—not the actual harms that result. As with other forms of evidence, of course, the actual injury that results can, in some cases, provide limited guidance as to what harms were foreseeable prior to the use of force.
Under Supreme Court precedent, then, reviewers must be able to identify the facts and circumstances as the reasonable officer on the scene could have perceived them, to draw the conclusions and to make the predictions that the reasonable officer on the scene could have drawn and made, and to analyze the resulting information. This has created at least three problems. First, the Court has provided no guidance as to how judges and other reviewers are to define the “reasonable officer on the scene,” nor has the Court defined the extent to which the actual officer’s individual characteristics—years of experience, training, and so on—should be imported into that analysis. Second, the Court has not provided any operational definitions of the Graham factors themselves. For example, how would the hypothetical “reasonable officer on the scene” assess the severity and likelihood of potential threats, and how exactly would they determine the immediacy of any given threat? Third, even if a reviewer is able to view the scene from the perspective of a “reasonable officer” and to apply the Graham factors, that assessment is best understood as answering the binary question of whether some amount of force was justified and not the more important, but more complicated question of what type or how much force was reasonable. Consider, for example, the arrest of a murder suspect: a physically diminutive and frail octogenarian who, while stark naked and unarmed, slaps at arresting officers. Taking the Graham factors at face value and applying them without additional analysis would lead inevitably to the conclusion that the crime is severe, there is an immediate threat to the officers, and the subject is actively resisting in an attempt to evade arrest, yet it would be patently absurd for officers to use more than a modicum of force, if any, to subdue the subject.
There are no perfect solutions to the problems identified above, but reviewers can subject use-of-force incidents to appropriate review when they know what features, characteristics, or categories of an event to examine, and how to examine and understand them. The use of force is messy, and evaluating uses of force after the fact can be just as messy. The purpose of this chapter is to operationally define relevant characteristics of a use-of-force incident and to provide a reliable framework that can be used to accurately determine whether a specific action was constitutionally reasonable. The following sections will untangle the contours of the Graham factors and give comprehensive (but not exhaustive) examples of how the facts of a use-of-force event may be evaluated under the Fourth Amendment.
Governmental Interest
Sociologist Egon Bittner famously identified the “unique competency of the police” as their ability to intercede to address “something that ought not to be happening and about which someone had better do something now.”20 Police, in other words, are uniquely trained and equipped to deal with situations in which the use of force may become necessary. And yet, it is inescapably true that not every aspect of policing will justify the use of force.
To understand this point, consider first the nature of the police function itself. That is, what is it that police do in a free, democratic society? Political scientist James Q. Wilson has offered perhaps the broadest and most useful taxonomy of the police function, which he describes as consisting of three types of tasks: officers engage in law enforcement, provide services, and maintain order.21 Unfortunately, those tasks are not always clearly distinct; certain situations may require officers to engage in two or even all three of those tasks simultaneously, as with an officer who makes an arrest (law enforcement) to break up a house party (order maintenance) that has been the subject of a neighbor’s complaint (service provision).
As that example suggests, it
