Читать книгу Evaluating Police Uses of Force - Seth W. Stoughton - Страница 22

Where the first Graham factor, “severity of the crime,” was primarily about identifying whether a use-of-force incident implicated the government’s interest in detecting, investigating, and apprehending criminals, the second Graham factor, “immediate threat,” is primarily about identifying whether the incident implicated the government’s interest in safety.

We begin the discussion of this factor with the reminder that we are concerned at this point in the analysis only with the binary question of whether there was an immediate threat.48 An officer’s perception that an imminent49 threat exists is reasonable when the officer has reason to believe that an individual has the ability, opportunity, and intent to cause harm.50

Ability means the individual’s physical capacity to cause an identifiable type of harm. Ability in this context requires an explicit reference: the individual must be capable of taking an action that would cause some particular and identified type of physical harm. It is not sufficient to state that an individual has the ability to cause some undefined harm—identifying the presence of a governmental interest that permits officers to use force requires specifying the type or types of harm that the individual has the capacity to cause. A handcuffed individual, for example, lacks the ability to punch someone, although they may retain the ability to kick or ram someone with their shoulder. Similarly, an individual with a knife in their hand may have the ability to stab someone, while an individual without a knife does not. Articulating ability, then, requires officers both to identify what the individual was capable of at the relevant time and, for each type of harm identified, to explain how the officer came to that conclusion. In short, officers must not only identify that the subject was able to inflict some type of harm, they must identify that harm and explain why they concluded that the subject was capable of inflicting it. Relevant observations include, but are not limited to:

 The subject’s apparent physical condition (age, size, strength, apparent skill level, physical condition such as injury or exhaustion, etc.);

 The subject’s apparent mental condition (the apparent influence of mental illness, drugs, or alcohol, for example);

 The proximity of weapons; and

 The degree to which the subject has been effectively restrained at the relevant time and their ability to resist despite being restrained.

Opportunity refers to the environment and situation, specifically with regard to the individual’s proximity to the potential target or targets. Even if an individual is physically capable of throwing a punch, they may not have any opportunity to cause harm by doing so because they are too far away for the punch to connect. Similarly, an individual with a knife who is a block away from the officer has the capability, but not the opportunity, to use the knife against the officer at the time; therefore, the knife should not be considered a threat to the officer in that moment (although it certainly may become a threat as the distance between the subject and the officer decreases). There is no set distance at which an individual does or does not have the opportunity to physically injure an officer; that determination depends on the relevant harms and the facts and circumstances of each case. Articulating opportunity requires officers to explain how the individual could cause an identifiable harm to a specific target at the relevant time. Relevant observations include, but are not limited to:

 The physical proximity of the subject to potential targets;

 The nature of the harm (e.g., an individual may be so far away as not have the opportunity to attack with a knife while still retaining the opportunity to attack with a firearm);

 The subject’s apparent physical condition and the speed at which they could close distance;

 The reactionary gap (the amount of time that it will take for an officer to react to an individual’s actions); and

 The officer’s ability under the circumstances to reduce or eliminate the opportunity for violent attack.

Intent refers to the individual’s perceived mental state, their apparent desire to cause physical harm to the target or targets. Where ability and opportunity may be relatively easy for an officer to diagnose based on readily observable physical characteristics, intent is more complicated. Because officers, like everyone else, lack the ability to divine another’s intentions by peering into their mind, officers must rely on behavioral indicators, physical manifestations indicative of intent. To take an obvious example, lunging at an officer with a knife is a clear physical manifestation of the intent to stab the officer. In contrast, an individual who is merely conversing with an officer while standing next to a knife block in the kitchen does not present any physical behaviors from which an officer could identify an intent to use the knife aggressively. It is important to avoid blurring the lines between intent and the other aspects of threat; an individual may be physically capable of causing harm and have the opportunity to do so, and yet not present any threat. For example, if an officer is standing next to a motorist who is changing a tire at the time, the motorist has the ability and opportunity to strike the officer with the tire iron they are holding. However, if there is no reason to believe that the motorist intends to strike the officer with the tire iron, there would be no threat in this situation. When that is the case, the use of force would not be justified at that moment.

Importantly, intent may be properly articulated through a combination of multiple factors even if no individual factor is sufficient on its own. To continue our previous example, merely holding a tire iron is not in and of itself indicative of the intent to cause harm. Nor is walking toward an officer. Nor is failing to obey an officer’s commands. However, walking toward an officer while holding a tire iron and ignoring the officer’s commands to stop or drop the weapon can be, in combination, indicative of the individual’s intent.

It is worth emphasizing that officers must explain why they came to the conclusion that an individual had the intent to cause physical harm. This requires the articulation of specific, observable facts. It is not sufficient for officers to rely on unhelpfully generic descriptions such as an individual’s “body language” or their “furtive movements” or the “look in their eyes.” Officers must describe what the body language was, what the movements were, or the nature of the subject’s facial expressions. Further, officers must explain why the body language, movement, or expressions were indicative of the intent to cause harm. Formulaic or boilerplate language is patently insufficient: officers must provide details.

As this suggests, some indications of threat should be treated with skepticism. In one case, for example, an officer struck a motorist with a baton because he thought the motorist was going to throw a piece of broccoli at him; although the officer claimed he feared that the subject was going to use the broccoli as a distraction before assaulting him, the court described the threat as “negligible.”51

There has also been an unfortunate tendency for officers to articulate, and apparently to urge courts to rely heavily on, an individual’s eye contact. In one case, for example, an officer expressed that she and another officer were being threatened because, “The stare the [subject was doing] was a stare to harm or hurt us.”52 Although an individual’s facial expressions, tone of voice, or comments may be properly included in a combination of factors that would lead a reasonable officer to perceive that someone had the intent to cause harm, such factors are not sufficient in and of themselves.

Articulating intent requires officers to explain how the individual physically manifested their intent to cause an identifiable type of harm. Relevant observations include, but are not limited to:

 The subject’s conduct, including verbal statements and specific movements or body language;

 The subject’s apparent mental capacity, including the influence of drugs or alcohol;

 The nature and seriousness of the suspected offense, if any; and

 The nature of the subject’s prior contacts with officers or any known violent history or known propensity for violence.

It is imperative for analysts to be aware that three aspects of threat—ability, opportunity, and intent—must be supported by specific, articulable observations. An officer’s conclusory statement that they feared for their safety or for the safety of others is insufficient to establish a governmental interest. Put differently, an officer’s fear is not reasonable merely because the officer was honestly afraid—an officer may honestly have been afraid of a perceived threat in situations in which that perception or fear was unreasonable. An analyst cannot conclude that there was a threat in the absence of articulated details and circumstances that would have led a reasonable officer to conclude, at the time that force was used, that the individual against whom force was used had the ability, opportunity, and intent to cause physical harm to the officer or others.

It is also essential to distinguish the concept of “threat,” meaning an imminent danger to a legitimate governmental interest, from the concept of “risk.” Risk is best described as a potential threat. More precisely, risk is the presence of at least one but not all three of the prerequisites of threat (ability, opportunity, and intent) and the potential for the remaining factors to materialize.

While it may be wise, in many cases, for officers to mitigate risk in various ways, the lack of imminent danger to a governmental interest makes it inappropriate to use force at that point. Consider again the example of a motorist using a tire iron to change a tire; as the motorist is changing the tire, they have the physical ability and opportunity to attack the officer with the tire iron, which means that there is some risk to the officer. The officer could step farther away from the motorist (creating distance) or could move to a position that keeps part of a vehicle between them and the motorist (using a physical obstacle to increase the amount of time it would take for the motorist to reach them), but the officer would not be justified in using force at that point because there was no perceptible intent to harm. Although there was some risk, there was no apparent intent to cause harm, and therefore there was no threat. And with no threat, there was no governmental interest at stake, and no justification for using force. The same is true in other situations; the fact that someone is capable of causing harm, has the opportunity to cause harm, or has the intent to cause harm does not justify a use of force: all three factors must be present.

Understanding the difference between risk and threat makes clear that a use of force cannot be predicated on an officer’s speculative articulation of what an individual might have done or the threat that could have existed if the individual were to have taken certain actions. Analysts must be alert to the problematic tendency of officers to rely excessively on hypotheticals. For example, an individual who is standing on loose rocks could reach down and pick up a rock and could attack an officer with that rock, but those possibilities do not by themselves justify the use of force. Even if the subject is refusing to obey an officer’s commands at the time, it is not reasonable to conclude that merely standing in proximity to rocks creates a threat of being struck by a rock. Sometimes officers attempt to justify their actions on the basis of predictions that are even more far-fetched; vague pronouncements that the subject was threatening are insufficient, as are unreliable recitations of generic and worn indicators such as the look in a subject’s eyes. Purely generalized concerns about a safety risk do not amount to an actual threat.53 The existence of a bona fide threat must be predicated on an officer’s articulation of details and circumstances that would lead a reasonable officer to conclude that the individual was physically capable of causing harm, was in a position to physically inflict that harm, and had manifested the apparent intent to do so. For a use of force to be constitutionally permissible, an officer must have an objectively reasonable belief that something is happening, not just that something might possibly happen.

That is not to say that officers must wait until they or another person are under attack. The threat must be immediate, but it need not have fully manifested into an actual assault. There is, for example, no requirement that a police officer wait until a subject shoots to confirm that a serious threat of harm exists.54 The legal standard of “immediate threat” allows for situations in which an officer uses force to preclude an assault by reacting to a threat before it progresses into an assault.55 As in other situations, of course, officers must be able to articulate why the situation presented a threat as that term is properly understood. Let us return to the example from the prior paragraph, of the subject who is standing in proximity to rocks. At that point, it would be inappropriate for officers to react as if they were threatened by a rock (although they are free to consider or use violence-reduction techniques, alternatives to force, or tactical options that may mitigate the risk and avoid a potential threat). If the subject ignored officers’ verbal commands and reached for a rock, however, it would be reasonable to conclude that there was a threat of being struck even before the subject lifted the rock from the ground. At that point, the use of force may be objectively reasonable because delay or inaction on the officers’ part may put them into the position of being unable to prevent the threat from manifesting into harm; once the subject throws the rock, it is too late for the officers’ actions to make any difference.