Читать книгу Evaluating Police Uses of Force - Seth W. Stoughton - Страница 21

In this context, the “severity of the crime” factor should be understood to pose three distinct, but interrelated questions about the nature of the officer–civilian interaction: First, did the officer have cause to believe that there was a crime? Second, if so, what is the relationship of the subject to that crime? Third, what is the nature of the crime? We address each question in turn.

First, did the officer have reasonable suspicion or probable cause to believe that there was a crime? Officers have the legal authority to arrest someone if they have probable cause to believe that the individual has committed a crime;38 that authority reflects the government’s interest in apprehending suspected criminals. It is difficult to describe the concept of probable cause with any precision. The Court has identified it as “a practical, nontechnical conception,”39 “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”40 The ultimate touchstone, as the Court has put it, is whether “a man of reasonable caution”41 would have concluded from the available evidence that an offense had been or was being committed. This requires “more than bare suspicion,” but “less than . . . would justify . . . conviction.”42 Within this fairly wide band, courts and commentators have come to inconsistent conclusions as to whether “probable cause” is, or should be, a “more-likely-than-not” standard.43

Officers also have the legal authority to detain someone so long as they have reasonable suspicion that the individual is involved in criminality;44 that authority reflects the government’s interest in, inter alia, investigating potential crimes. As with probable cause, the Court has rejected attempts to define reasonable suspicion with any degree of accuracy.45 Instead, reasonable suspicion is typically compared to, but identified as less than, probable cause, with the Court writing:

We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” Illinois v. Gates, 462 U. S. 213, 238 (1983), and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, see United States v. Montoya de Hernandez, 473 U. S. 531, 541, 544 (1985).46

It is worth pointing out that there is disagreement among the various federal circuits as to whether the officer must have reasonable suspicion of a specific crime or whether it is sufficient for officers to articulate a more generalized reasonable suspicion that the person is involved in criminality of some type.47

Second, if there was a crime, what is the civilian’s relationship to that crime? The fact that an officer is interacting with someone and that the interaction is related to a crime—or, more accurately, that the officer had reasonable suspicion or probable cause to believe that a crime occurred—does not necessarily establish a governmental interest that would justify the use of coercive authority against that person. Given that there is a clear governmental interest in the detection, investigation, and apprehension of criminals, an officer’s coercive authority over an individual depends on the relationship of the individual to the crime. On one end of the spectrum, there is no governmental interest when the individual has no relationship with the crime. At the other end of the spectrum, there is substantial governmental interest in seizing individuals suspected of committing a crime. Officers can detain individuals whom they reasonably suspect of being involved in criminal activity and arrest individuals whom they have probable cause to believe committed a crime.

Between those two points, there may be a governmental interest when an individual has some relationship to a crime even if the individual is not suspected of committing the crime. For example, the individual may be the complainant, a witness, or a victim. As a constitutional matter, the Fourth Amendment provides limited authority for officers to detain individuals other than criminal suspects when “special needs” justify the detention—to somewhat simplify a complex area of law, “special needs” refers to a governmental interest other than the interest in stopping or arresting a criminal suspect. For example, officers serving a search warrant at a home may detain individuals inside the residence even when those individuals are not individually suspected of any wrongdoing. The “special needs” test defies easy application; it requires evaluators to balance the nature and degree of the government’s interest in the seizure against the severity of the intrusion. However, for purposes of determining whether there is a governmental interest, it is sufficient to acknowledge that the government does have an interest in obtaining information from complainants, witnesses, and victims. Whether that interest justifies an intrusive government action, including the use of force, is a question of proportionality, which we discuss in the next section.

Third, what is the nature of the crime(s)? Assuming an officer had reasonable suspicion or probable cause that a crime was committed, the final aspect of Graham’s “severity of the crime” factor is the nature of that crime. Under current law, the severity of the crime is not relevant to the presence or absence of a governmental interest; the government retains an interest in seizing suspected criminals even when the crime at issue is minor. It is important to reiterate that at this point in the analysis we are concerned only with the question of whether there is a governmental interest—we are not yet concerned with whether that interest justifies the use of force in any particular situation; we address that issue when we discuss proportionality.

In the context of determining whether there is a governmental interest, then, the nature of the crime is relevant only to the extent that it can establish whether the governmental interest is primarily or exclusively related to apprehension for criminal justice purposes or whether the government has an additional and distinct interest in maintaining public order or protecting officer safety. The essential question is whether the crime was violent or was otherwise so serious that it is reasonable to expect that the perpetrator will engage in future violence. If either of those conditions are met, then there is more likely to be a governmental interest in using force to protect officer and public safety. If neither of those conditions are met, the governmental interest is limited to detention or apprehension for criminal justice purposes.

For example, when an individual has shoplifted a pack of gum, there is a governmental interest in detection, investigation, and apprehension, but that incident simply does not involve the type of crime that would lead a reasonable officer to believe, without any additional information, that the subject was imminently dangerous to the officer or the general public. On the other hand, a known serial killer who is fleeing from officers implicates not only the governmental interest in apprehension, but also public safety interests. Between those two extremes, an individual who has committed a series of very serious, but nonviolent crimes may implicate the government’s interest in officer safety because the severity of the punishment they face may make them more likely to violently resist than would the shoplifter.

When analyzing the nature of the crime, analysts must be cognizant that the relevant crime is not necessarily the crime that initially gave rise to the interaction. Instead, use-of-force determinations require analysts to identify all of the relevant crimes and, typically, to focus on the most serious crime or crimes in play. For example, the shoplifter who steals a single pack of gum commits among the pettiest of petty thefts. If, however, that shoplifter shoves the responding officer, the nature of the crime that establishes the government’s interest in using force has shifted from petty theft to assault of an officer. If the shoplifting suspect draws a firearm and threatens to shoot the officer, the nature of the underlying offense shifts yet again to an aggravated assault. This is an extreme example, but the logic is equally applicable in more common situations: when a suspected criminal flees from an officer’s command to halt, the relevant crime(s) may include resisting or obstruction (depending on state law) as well as the crime that originally gave rise to the officer’s command.