Articulating an individual’s active resistance or attempt to evade arrest by flight requires officers to explain how the individual physically resisted or attempted to flee. Relevant observations include, but are not limited to:
The subject’s conduct, including verbal statements and specific movements (body language);
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 degree to which the subject has been effectively restrained and their ability to resist or flee despite being restrained;
The degree to which the subject’s movement has been limited even when the subject has not been restrained (e.g., whether the subject is seated, surrounded by officers, etc.);
The environmental options that would enable or restrict flight; and
Prior contacts with the subject or awareness of any propensity for resistance or flight.
As a reminder, the sole focus at this point in the inquiry is the binary question of whether there is a governmental interest. Only when the presence of a governmental interest is confirmed does one continue the analysis by weighing the relative strength of the governmental interest against severity of the officer’s use of force.
Additional Factors
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.
Community Caretaking
Police officers are charged not just with the enforcement of criminal law, but also with preserving the peace and security of their communities. As the Court has described, the community-caretaking function is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”58 As federal judge and legal scholar Debra Livingston has written:
“Community caretaking” denotes a wide range of everyday police activities undertaken to aid those in danger of physical harm, to preserve property, or to create and maintain a feeling of security in the community. It includes things like the mediation of noise disputes, the response to complaints about stray and injured animals, and the provision of assistance to the ill or injured. Police must frequently care for those who cannot care for themselves: the destitute, the inebriated, the addicted . . . and the very young. They are often charged with taking lost property into their possession; they not infrequently see to the removal of abandoned property. . . . Community caretaking, then, is an essential part of the functioning of local police.59
Not all aspects of the community-caretaking function will establish a governmental interest that justifies the use of coercive force, but some aspects of community caretaking implicate the government’s interest in maintaining order. The preservation of public safety is one such example; although variations in state law and among the federal courts has shaped the community caretaking doctrine in different ways, all jurisdictions recognize that there is a governmental interest in protecting an individual from physical harm. The Fourth Amendment incorporates this concept by authorizing officers to use coercive authority to prevent imminent, serious physical harm by, for example, forcing entry into a private home or detaining one or more individuals.60
The governmental interest in order maintenance can justify the use of force even when the Graham factors do not appear or apply only weakly. Consider the facts of Ames v. King County: paramedics were attempting to render aid to an unconscious man who appeared to be overdosing as a result of a suicide attempt, but were being hindered by the man’s mother. The Graham factors would not clearly justify a use of force. The crime, if there was one, was not very severe; Washington Criminal Code § 9.08.040 does criminalize resisting medics attempting to discharge their legal duties, but the statute makes such resistance a gross misdemeanor. There was no threat to the safety of officers, and the subject was not attempting to evade arrest through active resistance or flight. Despite the limited applicability of the Graham factors, there was an imminent threat to the governmental interest in order maintenance: the mother was preventing the medics from providing potentially life-saving aid. The United States Court of Appeals for the Ninth Circuit correctly held that the officer on scene was justified in using force to subdue the mother so that medical workers could treat her son.61 In short, the need for officers to perform or facilitate a community-caretaking function established the existence of a governmental interest that served as a sufficient predicate for the use of force.
This does not mean that any use of force is permissible in community-caretaking situations—that question is best treated as an issue of proportionality, which we address later in this chapter. Our point here is more limited: a valid governmental interest can justify the use of force under the constitutional standard even when the Graham factors offer little guidance.
Involuntary