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.
Active Resistance and Attempts to Evade Arrest by Flight
Like the first Graham factor—the severity of the crime—the third factor implicates the government’s interest in detecting, investigating, and apprehending criminals. The government has an interest in investigating individuals whom officers reasonably suspect are involved in criminal activity and in apprehending individuals whom officers have probable cause to believe committed a crime. Those interests are frustrated when an individual successfully resists or flees from officers. Thus, to protect the government’s interests in investigation and apprehension, officers may use force to overcome resistance, including to prevent escape. The relevant question, then, is twofold: First, whether the government has an interest in detaining or apprehending the individual in question in relation to a crime. Second, whether the individual’s actions create a realistic possibility that the subject will avoid detention or apprehension.
As with threats to officer safety, officers need not wait until a subject’s resistance or flight is fully manifested before using force to address it. At the