On the one hand, an officer who uses force sadistically to punish a community member in the clear absence of legal authority easily satisfies the criminal standard. On the other hand, an officer who uses force in the good-faith but mistaken belief that force is appropriate is highly unlikely to have the requisite mens rea.
The third prong is the easiest to address in light of the earlier discussion of constitutionality: if the officer’s actions were constitutional, then 18 U.S.C. § 242 is inapplicable. That is, without a constitutional violation, there can be no crime.
In addition, there are a range of other crimes in which the Fourth Amendment can play some predicate role. 18 U.S.C. § 924(c)(1)(A) criminalizes carrying, using, brandishing, or discharging a firearm using the commission of an act that is punishable by federal law as a crime of violence. Certain violations of 18 U.S.C. § 242—those in which “bodily injury results from the acts committed”—can constitute a crime of violence, which means that an officer may be criminally charged both for willfully violating someone’s constitutional rights and for carrying or using a firearm while doing so.12 If, on the other hand, the officer’s actions did not constitute a Fourth Amendment violation, then there is no willful violation, which means there is no crime of violence, which means that the officer’s carrying or use of the firearm is not a crime under federal law. The constitutionality of police actions may also be relevant in a more attenuated way; 18 U.S.C. § 241 criminalizes conspiracies—that is, agreements between two or more persons to “injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution,” which includes the Fourth Amendment right to be free from unreasonable seizures.
Thus, the constitutional standard applies in at least three different ways: in civil litigation filed by a private plaintiff (or a class of plaintiffs) against an officer or agency; in civil litigation filed by the Department of Justice against an agency; and in federal criminal prosecutions against officers.
What Does the Constitutional Standard Regulate?
The Fourth Amendment regulates seizures.13 Thus, the Fourth Amendment only regulates the use of force to the extent that a use of force amounts to a seizure; a use of force that does not constitute a seizure is not constitutionally cognizable.
An individual is seized, the Court has held, when the circumstances are such that a reasonable person would not feel free to “disregard the police and go about his business.”14 The Court has held that this requires “an intentional acquisition of physical control.”15 The requisite acquisition of physical control can occur under two circumstances. First, when an individual submits to an officer’s “assertion of authority,” as when an officer initiates a traffic stop by activating their emergency lights and the target driver pulls over to the side of the road. Second, and more relevantly for purposes of this book, an officer acquires physical control by engaging in “mere grasping or [the] application of physical force.”16 Importantly, the nonphysical assertion of control constitutes a seizure only when the individual submits. In contrast, the physical assertion of control—that is, an officer’s initiation of physical contact to control a subject’s movement—constitutes a seizure regardless of whether the individual submits or resists.
There is a substantial overlap between seizures and uses of force, but the idiosyncrasies of constitutional law mean that they are not coextensive. Because an individual’s submission to a nonphysical assertion of control can constitute a seizure, an officer can effectively seize someone without using force. If, for example, an officer tells a pedestrian to stop and the pedestrian stops, that interaction is highly likely to be deemed a seizure—which may comply with or violate the Fourth Amendment—even though the officer’s verbal command did not involve the use of force as that term is generally understood.
At the same time, however, an officer can use physical force without that use of force being considered a seizure for constitutional purposes. If, for example, an officer fires their sidearm at a fleeing subject, but if the bullet misses and the subject continues running, there is neither submission to a show of authority nor physical contact. At most, there is an officer’s attempt to make physical contact, but an officer’s intentions alone are not sufficient to constitute a seizure for Fourth Amendment purposes. In that example, the Fourth Amendment simply is not a relevant standard that can be used to analyze an officer’s use of force.
To be constitutional, seizures—including seizures involving uses of force—must be justified both at their inception and throughout their duration. The question in use-of-force cases is whether the application of force (or the threat of force against an individual who has been seized by submission to a show of police authority) exceeds the scope of what the situation allows. An officer can be legally justified in seizing an individual—for example, stopping a vehicle after observing a traffic infraction—without necessarily being justified in the use of force. In such a circumstance, the use of force will offend the Fourth Amendment’s prohibition of unreasonable seizures even when the traffic stop itself did not.
In the remainder of this chapter, we will discuss how the Fourth Amendment standard is best understood in situations when it is applicable to an officer’s use of force.
How Does the Constitutional Standard Apply?
In Graham v. Connor, the Supreme Court held that because the Fourth Amendment prohibits unreasonable seizures, the ultimate question in use-of-force cases is whether the officer’s actions were “objectively reasonable” under the circumstances. That analysis requires, the Court said, “a careful balancing of the nature and quality of the intrusion on the individual’s . . . interests against the countervailing governmental interests at stake.” And that balancing, in turn, requires “careful attention to the facts and circumstances of each particular case.” To guide the constitutional analysis, the Court set out three factors that are widely known as the “Graham factors.” First, the severity of the crime at issue must be considered. Second, the immediate threat to officers and others posed by the subject must be evaluated. Third, whether the subject is actively resisting or attempting to evade arrest by fleeing must be taken into account. The Court added additional factors by recognizing the importance of the proportionality of the force used and the totality of circumstances. These considerations make the analysis of objective reasonableness more complicated by requiring the analyst to consider aleatory elements of the use of force. As the forgoing suggests, use-of-force investigations are “highly fact-intensive.”17
To navigate the constitutional use-of-force analysis, this section offers an analytical roadmap broken down into the following three elements: (1) deference and the “reasonable officer,” (2) governmental interests, and (3) proportionality. At each step, our roadmap addresses the three major tenants of the Graham decision, but where most accounts take the three Graham factors at face value, we illustrate how they are more properly viewed as three categories, each of which contains a number of subsidiary factors that can influence how any given use-of-force incident is analyzed. We also go beyond Graham, demonstrating that the factors that fit within the Graham categories are not the only relevant considerations. Graham itself suggests that the three identified categories were not intended to be exhaustive; they are “include[ed]” in “the facts and circumstances of each particular case” that evaluators must review, but they are hardly the only relevant factors to consider