Читать книгу Evaluating Police Uses of Force - Seth W. Stoughton - Страница 30

The severity of the crime is relevant to proportionality analysis in two distinct ways: as an indication of the strength of the government’s interest in apprehension and, separately, as a measure of the potential for a physical threat, implicating the government’s interest in safety. We address each in turn.

First, it is often taken for granted that the severity of the crime is a measure of the government’s interest in facilitating the criminal justice process through apprehension. The assumption is that the government has less of an interest in seizing individuals who are suspected of low-level crimes than it does in seizing individuals who are suspected of more serious crimes. That assumption is logically translated into the use-of-force analysis, as reflected by the following syllogism: if the proportionality of a use of force depends on the strength of the governmental interest, and if the government has less of an interest in seizing individuals suspected of committing minor crimes, then officers are only justified in using lesser levels of force against such individuals. That conclusion grows out of the entirely intuitive perception of the relative strength of the government’s interest in minor and serious crimes. As a strictly legal matter, the logic is flawed. However, it is quite relevant as a matter of policy.

Legal analysis commonly correlates the severity of the crime to the strength of the government’s interest in criminal enforcement. In the context of searches, for example, the Fourth Amendment generally permits officers to force warrantless entries into private residences when there is an exigent need to preserve evidence of a crime, but the Supreme Court has held that officers may not do so when the crime is a minor offense.71 The same thing is true when officers are in hot pursuit; officers can enter a private home when they are chasing a suspect who is thought to have committed a serious crime, but they cannot do so when the suspect has committed only a minor crime.72 In both cases, the underlying logic is that the governmental interest in enforcing minor crimes is not strong enough to justify the intrusion, even though the interest in enforcing a more serious crime would be. Some courts have applied the same approach in the use-of-force context.73

We believe this association is misguided in the use-of-force context. In fact, the relative severity of the crime is of minimal use as a legal measure of the government’s interest in apprehension. That assertion seems counterintuitive, as the government routinely dedicates more resources to investigating and apprehending an individual who commits a serious crime than it does for an individual who commits a minor crime. A police agency may be willing to extradite an armed robber from across the country, for example, and at the same time be unwilling to extradite a shoplifter from a neighboring county. Similarly, multiple police agencies may invest resources in a joint task force dedicated to apprehending wanted criminal suspects, but that task force may be directed to prioritize serious offenders and effectively ignore individuals who have warrants for minor crimes. Those are real world examples, but it is worth considering that agencies could extradite everyone or direct a fugitive-apprehension task force to go after suspects alphabetically, regardless of the severity of the underlying crime. Agencies have the legal authority to do so, but they do not always exercise their full authority for pragmatic reasons: often because they lack sufficient resources or are unwilling to spend political or social capital in particular ways. Further, it is worth remembering that, in the aggregate, agencies often dedicate substantial resources to the investigation and apprehension of individuals who commit what are, at best, minor crimes. As those examples demonstrate, the strength of the government’s interest as a policy matter is quite distinct from the strength of the government’s legal interests.

As in the context of extradition, the severity of the crime is legally irrelevant when it comes to using force to advance the government’s interest in apprehension in order to facilitate the criminal justice process. That irrelevance can be demonstrated with a simple hypothetical. Consider two criminal suspects who are identical in all respects: age, physical condition, and so on. Assume that the suspects are being arrested by identical officers in identical environments—the middle of otherwise empty parking lots—and that both suspects resist officers in exactly the same way: by attempting to pull away and run. Officers, in turn, use exactly the same type and amount of force to subdue both suspects. The only difference is that the suspects are being arrested for two different crimes: one of the suspects committed the pettiest of petty thefts by shoplifting a single piece of gum from a convenience store, while the other committed a number of serious but nonviolent felonies by defrauding hundreds of elderly victims out of millions of dollars. Clearly, there is a substantial disparity in the severity of the crimes at issue.

In our view, that disparity will not affect the use-of-force analyses; if the officer who arrested the misdemeanant acted unreasonably, the same will be said for the officer who arrested the felon. Conversely, if the officer who arrested the felon acted reasonably, the same will be said for the officer who arrested the misdemeanant. The only explanation for that result, which we believe is an accurate prediction, is that the government’s legal interest in apprehension is the same—or, rather, is not meaningfully different—in both cases.

An astute reader might ask at this point whether the officers in this example could perceive more of a threat from the subject who committed the more serious crimes because the severity of the punishment they are facing may motivate them to take more drastic action to avoid capture. This may be the case, but it only serves to prove our point: the government’s interest in apprehension is the same, even if the government plausibly has asymmetric concerns about safety.

Although the severity of the crime is of little practical use in analyzing the government’s legal interest in apprehension, it may still be relevant from a policy perspective. We address this point in chapter 3.

Second, separate and apart from the role it plays in establishing the government’s interest in apprehension, the severity of the crime remains an important consideration in identifying the strength of the government’s interest in safety—the safety both of community members and of the officer as a government agent. The interest in safety is a sliding scale, reflecting the different physical threats that the government seeks to protect against. In this context, the seriousness of the underlying crime the individual is suspected of committing serves as a proxy for how much of a threat to safety the individual is: the more serious the crime, the more dangerous the subject may be presumed to be. A violent crime may indicate that a subject has both the capacity and the willingness to engage in future violence. Separately, an individual who is suspected of committing a serious crime (even a nonviolent crime) may be more likely to violently resist officers in an effort to avoid a lengthy prison sentence than is an individual who is suspected of committing a minor crime and who therefore faces correspondingly minor punishment. The severity of the crime, then, can be a proxy for the danger that an individual may present to officer or others.

Importantly, assessments of individual dangerousness based on the severity of the crime are only valid in the absence of other, more reliable information. When, for example, an officer lacks reliable information about whether a subject is armed or dangerous, it is entirely logical to conclude that a robbery suspect is more likely to be armed and dangerous than a shoplifter. As the officer gathers additional information, however, the severity of the crime becomes less useful as an indicator of dangerousness. If an officer is approaching a naked robbery suspect whose hands are observably empty, for example, the severity of the crime is no longer an accurate proxy for any estimate about the safety risk that the subject presents. Instead, the severity of the crime as the basis of a threat assessment is supplanted by the officer’s observations.

In sum, the severity of the crime is not a relevant consideration as to the strength of the government’s interest in detaining or apprehending suspected criminals. The severity of the crime can be an important gauge for assessing an individual’s dangerousness, but only insofar as other, more reliable information is not available.