Читать книгу Evaluating Police Uses of Force - Seth W. Stoughton - Страница 38

The ultimate question in proportionality review is whether the force an officer actually used was appropriate under the circumstances. That requires reviewers to compare the nature and severity of the officers’ actions against the presence, nature, and severity of an imminent threat to a governmental interest. A superficial description of an officer’s use of force is an insufficient basis for this analysis; reviewers must be attuned to whether and how an officer’s tactical decisions played a role in affecting the use of force, the mechanism by which a use of force is intended to address the threat to a governmental interest, the likely harm of the officer’s use of force, and the availability of alternatives. We provide a brief overview of these topics here. We discuss tactics more fully in chapter 5 and explore the tools, techniques, and weaponry which with officers use force in chapter 6.

There are some situations in which a subject presents an imminent threat to a governmental interest only because of the decisions made and actions taken by the police officer. Imagine, for example, a paraplegic subject in a nonfunctional electric wheelchair who is aggressively brandishing a knife. It seems clear that if an officer walked up to within arms’ reach of the subject, the subject’s actions would present an imminent threat to the officer’s safety and potentially to other governmental interests. It seems equally clear, however, that if the officer maintained a safe distance—perhaps taking cover behind their patrol car—the subject either would not present an imminent threat to a governmental interest or would not present a very significant threat.

Regrettably, the Supreme Court has never definitively explained whether an officer’s decisions and actions prior to a use of force—sometimes referred to as “pre-seizure conduct” in the constitutional context—are relevant factors to consider when evaluating the reasonableness of the use of force. There is tension about this within Graham itself. On the one hand, the Court wrote that uses of force are to be reviewed under the “totality of the circumstances,” which can certainly be read broadly enough to include pre-seizure conduct. On the other hand, the Court wrote that the constitutional standard of objective reasonableness “must embody allowance for the fact that police officers are often forced to make split-second judgments . . . in circumstances that are tense, uncertain, and rapidly evolving,” which can be read to suggest what is referred to as “final frame” analysis: focusing exclusively on the moment at which force is used.76

The United States Courts of Appeals are split on this question. The First, Third, Sixth Circuit, and Tenth Circuits have held that pre-seizure conduct, including an officer’s tactical decisions, is relevant to the determination of whether the ultimate use of force is objectively reasonable.77 The Ninth Circuit had previously held that pre-seizure conduct is relevant if it involves an intentional and reckless provocation that amounts to an independent constitutional violation,78 but that approach was overturned by the Supreme Court in 2017.79 The Fourth and Seventh Circuits have held that pre-seizure conduct is irrelevant to the constitutional standard.80 The United States Court of Appeals for the Eighth Circuit has provided inconsistent guidance, writing:

Unreasonable police behavior before a [seizure] does not necessarily make the shooting unconstitutional; we focus on the seizure itself . . . and not on the events leading up to it. But this does not mean we should refuse to let juries draw reasonable inferences from evidence about events surrounding and leading up to the seizure.81

We believe it is not only appropriate, but essential for courts to look beyond the “final frame” to determine whether a use of force was objectively reasonable. As we discussed earlier in this chapter, an officer’s use of force inherently infringes on highly valued personal and governmental interests; it is therefore constitutionally justified only to the extent that those interests are outweighed by the state’s interest in law enforcement, maintaining public order, and officer safety. It is conceptually and, we believe, constitutionally unsound for reviewers to overlook or ignore the extent to which officers contribute to the creation of a threat to one of those state interests.

We do not mean to suggest that an officer’s use of force will always, or even generally, be unreasonable just because the officer put herself in harm’s way; in a great many situations, officers are expected to do exactly that. However, when an officer fails to use reasonable tactics given the situation or otherwise contributes to the creation of a threat to a governmental interest in a way that violates professional norms—what some policing scholars have referred to as “officer-created jeopardy”82—the officer’s role in unreasonably bringing about the threatening situation should generally be understood to render unreasonable an otherwise reasonable use of force.

When it comes to the actual application of force, there are effectively two mechanisms by which officers attempt to overcome resistance: pain compliance and mechanical disruption. Pain compliance refers to the intentional infliction of pain as a way of discouraging the subject from continuing to resist or, phrased differently, as a way of encouraging the subject to comply with an officer’s commands. The paradigmatic example of pain compliance is a pressure point control hold, in which officers push on a sensitive spot on the body to inflict pain. Mechanical disruption, in contrast, works by physically overwhelming the subject’s musculoskeletal system. There is perhaps no better example of mechanical disruption than when multiple officers “dog pile” on top of a subject, using their weight to prevent the subject from rising; although the subject may experience discomfort, it is the combined weight of the officers, not the discomfort they’re inflicting, that prevents the subject from getting up. Unlike pain compliance, mechanical disruption does not depend on the subject’s perception of pain to be effective. The application of pain compliance techniques and mechanical disruption techniques are not mutually exclusive; the two can be used congruently. For example, officers might use their body weight to hold a subject to the ground (mechanical disruption) while also striking a subject in the large muscles of the upper back (pain compliance). Indeed, the same technique or weapon can involve elements of both pain compliance and mechanical disruption, although it is almost always fair to describe any given technique or weapon as primarily dependent on pain compliance or mechanical disruption to induce compliances or otherwise overcome a subject’s resistance.

The force option that officers apply should be assessed in terms of its potential harms, the harms that are reasonably foreseeable at the time force is applied. We discuss the gradations of harm more fully in chapter 6.