Читать книгу Evaluating Police Uses of Force - Seth W. Stoughton - Страница 24

The three Graham factors—severity of the crime, immediate threat, and flight—can help reviewers determine the existence of a governmental interest that can justify the use of force in any given encounter. Reviewers should be aware, however, that additional factors can establish the existence of a governmental interest, potentially justifying the use of force, even when the Graham factors seem inapplicable. This is the case because the Graham factors are primarily concerned with two governmental interests—facilitating the criminal justice process and protecting officer safety—but are less useful when it comes to determining whether the government has an interest in maintaining public order (which, as described above, includes preventing crime and preserving public safety).

Some courts have identified separate factors that apply when the Graham factors themselves do not. The Sixth Circuit, for example, has adopted what it described as “a more tailored set of factors to be considered in the medical-emergency context . . . [w]here a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer.”56 Those factors are:

1 (1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

2 (2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

3 (3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?57

The first question posed by the Sixth Circuit addresses the issue of whether a governmental interest exists, while the second question addresses whether the governmental interest justifies the use of “some degree of force” and the third question addresses the extent to which force was permitted under the circumstances.

Other courts and commentators have identified two noncriminal governmental interests that can, at least in certain circumstances, justify the use of some force: community caretaking and involuntary commitment.