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Use of Force - Part II


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Part II: The “No 20/20 Hindsight” Rule

What was not available to the officers when Graham was initially stopped, handcuffed, and put in the cruiser was the report from the officer who returned to the store. Nothing was amiss. But using that information to judge Connor could violate the “no 20/20 hindsight” rule.

“The no “20/20” hindsight rule probably worked to Officer Connor’s advantage, in this case. But what if Connor had learned the next day that Graham had a violent criminal record? Considering that information would also violate the rule. Officers are judged based on the facts reasonably known at the time.

Perfect Answers vs. Range of Reasonableness
“The test for reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” the Court stated. Allowance must be made 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.” Obviously, there may be more than one way to effect a seizure - and while hindsight may prove one option better than another - what matters is whether the chosen one fell within the range of reasonableness.

The Graham Factors are Reasons for Using Force
The Court stated that whether force is reasonable requires a careful balancing of the nature of the intrusion on the suspect’s liberty against the countervailing governmental interest at stake. In short, what did the officer do (or what was the nature of the intrusion on the suspect’s liberty) and why did the officer do it (or what was the governmental interest at stake)? The Graham factors act like a checklist of possible justifications for using force. They are not a complete list and all of the factors may not apply in every case.
The Graham factors are the severity of the crime at issue; whether the suspect posed an immediate threat; and whether the suspect was actively resisting or trying to evade arrest by flight.

1. The Severity of the Crime
The “severity of the crime” generally refers to the reason for seizing someone in the first place. Officer Connor may have been acting under a reasonable suspicion that Graham stole something. Arrests and investigative detentions are traditional, governmental reasons for seizing people. Generally, the more serious the crime at issue, the more intrusive the force may be.

There may be a reasonable basis for seizing someone who is not suspected of any wrongdoing. Reasonable force may be used to control the movements of passengers during a traffic stop.6 When executing a warrant in a home, reasonable force may be used to detain the occupants.7 The operative word under the Fourth Amendment is reasonableness. Reasonableness depends on the facts.

2. The Immediacy of the Threat
Whether the suspect is an immediate threat to the safety of the officer or others is generally considered the most important governmental interest for using force. The greater the threat, the greater the force that is reasonable.

3. Actively Resisting Arrest
Resisting an arrest or other lawful seizure affects several governmental interests. It may prevent the officer from effecting an arrest, investigating a crime, or executing a warrant. The Graham factors are not considered in a vacuum. Active resistance may also pose a threat.

4. Attempting to Evade Arrest by Flight
Attempting to evade an arrest or other lawful seizure by flight frustrates some of the same governmental interests as resistance. Flight (especially by means of a speeding vehicle) may even pose a threat.

With the facts, the court can determine what Graham factors apply and whether the force was objectively reasonable. In Graham, for example, the offense at issue was possible shoplifting; and the initial intrusion on Graham’s liberty was sitting in a car beside the road. But the intrusion on Graham’s liberty also became much greater. Did the governmental interest at stake? Recall that Officer Connor told the men to wait at the car and Graham resisted that order. He got out. Add that to evidence of Graham’s possible intoxication, and a reasonable officer might believe that Graham posed an immediate threat to Officer Connor; to other motorists on the adjoining road; and to Graham, himself.

Other Factors
The Graham factors are not a complete list. While the lower courts have listed others, most are a subset of what is generally considered the most important factor: Immediate threat to the officer or others. For example, the number of suspects verses the number of officers may affect the degree of threat. Initially, it was Officer Connor against two suspects. Also affecting the degree of threat is the size, age, and condition of the suspect confronting the officer. Is the suspect 75 years old and frail, or 25, 6’2” and about 250 pounds? The duration of the action is important. Struggling with someone can be physically exhausting?

Any officer would want to know a suspect’s criminal or psychiatric history, if possible. But mental impairment is not the green light to use force. Shocking a man several time with an electronic control device was excessive in a situation where he had been involuntarily committed, but not committed any crime. The man grabbed a post, was seated on the ground, and was surrounded by police and hospital staff. The static stalemate did not create an immediate threat.8

Time is a factor. The Court stated, “The calculus for reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - - in situations that are tense, uncertain, and rapidly evolving - - about the amount of force that is necessary in a particular situation.” A robbery suspect who reaches into his waistband creates some split-second decision making for the officer; more deference should be given to the officer’s decision. But not every situation requires a split-second decision. Consider the mentally impaired man who grabbed the post. If he does not pose an immediate threat, there is probably time to consider other, less intrusive options.



5.  Using too little force is not a constitutional violation, but may unnecessarily endanger the officer or others.
6.  Pennsylvania v. Mimms, 434 U.S. 106 (1977); Maryland v. Wilson, 519 U.S. 408 (1997); See the Legal Division Reference Book.
7.  Michigan v. Summers, 452 U.S. 693 (1981); See the Legal Division Reference Book.