The Fourth Prong of Graham

by Bill Lewis II

When I was initially asked by Police K-9 Magazine [in 2012] to share my views on landmark cases related to police dogs with new and updated perspectives, my decision for the first case selection was easy – Kerr v. City of West Palm Beach – because I think the key issues of that case related to control, policy and supervision were relatively easy to prioritize and those issues provide a solid foundation for today’s police K9 programs if properly and consistently applied.

The selection process for the second case was almost as easy as the first but proved to be more challenging in sharing because of its “legendary” significance related to the subject matter and its implications. And, because I am not an attorney, my goal is to not share my perspective as a legal advisor sitting behind a desk, but to offer my viewpoint from a street perspective for those who work the streets and train for the real world and either supervise or deploy as K9 teams.

There are many who believe case law is a black-and-white issue – easy to define, comprehend, and apply.  It’s not true as you well know and you only need to read a few court cases and conflicting opinions to quickly verify the phenomena.

We rely on our attorneys and policy makers to interpret these decisions and provide us with the rules and guidelines to help determine our proper courses of actions, trainers to prepare us, and supervisors to evaluate our applications.  And, in the case of Graham v. Connor 490 U.S. 386 (1989), I believe it is one case that is misunderstood quite often today regarding the use of force as it pertains to canine deployments and in need of a serious revisit to simplify and better clarify its intent.

As you should know, the Graham case was not a K9 case, but it is possibly the most applicable case in the United States related to the decision making process in preparation for canine deployments as a use of force.  What I find most interesting about Graham is that the majority of K9 handlers I meet are well aware of the basic premise of the case while patrol officers are not.  And, ironically, who is involved more frequently with use of force encounters?

Background:  Graham was a diabetic who asked his friend, Berry, to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend’s house instead. Officer Connor became suspicious after seeing Graham hastily enter and leave the store, followed Berry’s car, and made an investigative stop, ordering the pair to wait while he found out what had happened in the store. Other backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham’s condition. During the encounter, Graham sustained multiple injuries at the hands of the involved officers. He was released when Connor learned that nothing had happened in the store.

The Three Prong Graham Test

I often listen to and read varied interpretations regarding the “three prong Graham test” that should be applied by a K9 handler in preparation to deploy the police dog in a situation that will likely result in a use of force.  This “test” is given regularly across the country as a test question or inquiry to prospective handlers, handler candidates, experienced handlers and K9 supervisors.

The “three prong Graham test” is most often recited or written as the following factors that are required to justify the deployment of a police dog;

  • The severity of the crime at issue
  • Whether the suspect poses an immediate threat to the safety of the officers or others
  • Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Where the confusion or misunderstandings most often occur regarding these “prongs” as factors to consider is determining whether they are to be considered independently, as combinations or all factors must be present.  I personally know handlers who utilize only these factors to initially justify deployments and I’ve seen policies that list only these factors to be considered.  The totality of the circumstances is often overlooked.

Can a police dog be deployed on a homicide suspect that is neither resisting arrest or attempting to evade nor posing an immediate threat to anyone’s safety?  Is a police dog deployment justified on a petty theft shoplifter who is resisting arrest by attempting to evade arrest by flight?

The Severity of the Crime

Across the country, handlers recite Graham beginning with “the severity of the crime” to justify their use of force and deploy a police dog. But, many handlers also experience their first confusion at this point.  Many handlers are unable to articulate the meaning as it might relate to any given situation.  The ability to articulate this factor is essential and should be completely understood.  A good follow up question to a handler is “What does ‘severity of the crime’ actually mean as it applies to a police dog deployment?”

The definition of severe is extremely violent and intense.  There are many agencies and supervisors that believe only serious (severe) crimes warrant the use of a police dog based on a literal definition and some policies restrict deployments based on interpretations.

I was recently teaching a class when two handlers from the same agency approached me during a break and said “Are you going to discuss when we can use the dog because our supervisor thinks we can only deploy on serious felonies?”  According to them, the supervisor equated “severity of the crime” to serious felonies only.  At the next break, their supervisor approached me and asked “Are you going to discuss when handlers can send a dog because my handlers think they can deploy on anything?”

I was temporarily amused because the handlers and supervisor are supposed to be working together and it was apparent that a communication gap and misunderstanding obviously existed with respect to deployment factors. Secondly, their deployment policy should define when they can and when they cannot deploy their police dogs.  If you are working at the same agency, there should not be a significant difference regarding your understanding of deployment policy.  And, if it does exist, you must sit down with all persons involved to address the issue and reach a consensus on your deployment criteria.

It is important to remember that “severity of the crime” is only one of the factors to be considered and it is not defined as a felony.  However, if your agency policy places limitations and restricts deployments to felony crimes or serious felonies (which will require a further definition of “serious”), it is a policy that must be followed.

Immediate Threat

Another common misunderstanding related to Graham is the “immediate threat” interpretation.  According to one definition, imminent danger is an immediate threat of harm, which varies depending on the context in which it is used.  Typical considerations to find imminent danger include the attacker’s apparent intent to cause great bodily injury or death, the device used by the attacker to cause great bodily injury or death, and the attacker’s opportunity and ability to use the means to cause great bodily injury of death.

I compare this “immediate threat” assessment with the “21-Foot Rule” as it applies to a suspect with a knife at a distance of 21 feet from an officer.  The “rule” states that in the time it takes the average officer to recognize a threat, draw his sidearm and fire two rounds at center mass, an average subject charging at the officer with a knife or other cutting or stabbing weapon can cover a distance of 21 feet.

According to the Force Science Institute, a potential deadly threat exists at 21 feet – “but [the suspect] cannot be considered an actual threat justifying deadly force until he takes the first overt action in furtherance of intention–like starting to rush or lunge toward the officer with intent to do harm. Even then there may be factors besides distance that influence a force decision.”

K9 handlers often justify a deployment based on a “perceived threat” in lieu of an actual attack or “immediate threat.”  A mere standoff at a distance with an unsearched felony suspect does not by itself constitute an immediate threat to a handler or others – but handlers have deployed because they perceived a threat if they or other officers were to approach the suspect absent other conditions or an overt action in furtherance of intention to do harm.

The Fourth Prong of Graham

“Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” –Graham v. Connor

As I revisit the Graham decision, it becomes my refreshed opinion that the factors and the circumstances of an incident known prior to a deployment as a crime is confirmed (or believed to be pending) are the most important to consider before weighing the other factors that may or may not be immediately present or relevant.  It’s not a legal interpretation, but “including” may also be interpreted as “together with” or “as well as” as it applies to this decision and its subsequent applicability.  These other “factors” – and the totality of the circumstances – become the fourth and equally important prong of the Graham test along with considering the crime, immediate threat, and/or active resistance/arrest evasion.

I’m fairly confident every situation is different – I’ve yet to see identical situations with identical factors and circumstances – so each situation must include the individual factors that are present and known to a handler prior to a deployment.  There is no “Graham template” that you can Google or an app you can download that will allow you to enter all of the factors present at the scene of a potential deployment and then click on “DAR” (Determine Appropriate Response) prior to deciding to deploy your police dog – or not.

All of the factors known to exist prior to a decision made to deploy the police dog must be calculated and entered into the handler’s evaluation process as a “mental checklist” to determine the appropriate response and applicable use of force.  These factors are often analyzed in a split second.  The checklist will vary.

In our report writing, we must list every factor and each circumstance known to us before we deployed to support our use of force decision.  If we are confronting a violent gang member known to us with a history of previous assaults on police officers before we deploy, it is those factors that are among others to be considered.  If we learn the same information after the deployment, it is not applicable to our decision making process – but still worthy of documentation.

The other factors found within the fourth prong attributed to our decision making process when known in advance to justify a deployment are also known as “other articuable facts” and may include, but are not limited to;

  • Prior criminal history that may include violent offenses
  • Prior actions or know violence by the suspect(s) that may include physical resistance to arrest or attempts to do so
  • Parole or probation status, and its relation to any violent crimes
  • Potential for “third strike candidate” if applicable
  • Pre-assault indicators
  • Size, age, and physical condition of the officer and suspect(s)
  • Known violent gang membership or affiliation
  • Known or perceived physical abilities of the suspect (e.g., karate, judo, MMA)
  • Previous violent or mental history known to the officer at the time
  • Perception of the use of alcohol or drugs by the subject
  • Perception of the suspect’s mental or psychiatric history based on specific actions
  • The availability and proximity to weapons, and any prior history related to weapon possession and/or use
  • Environmental factors
  • The number of suspects compared to the officers involved and availability of back-up
  • Injury to the officer or prolonged duration of the incident
  • Officer on the ground or other unfavorable position
  • Characteristics or perceptions of suspect being armed and not previously searched

When present and known, these facts and others not listed herein are among those to be considered to justify our deployment decision as part of the fourth prong of Graham.  A standoff involving a crime of any nature together with some or all of these factors listed may justify a deployment without active resistance, flight or an immediate threat.

If your K9 training program has not progressed beyond “dog training” and excludes mental training and conditioning for your handlers as well as frequent and appropriate testing to evaluate proper decision making, it’s time to do so.

Author Update (2017):  In closing, I’m reasonably confident members of your K9 program know that “other factors” exist with respect to Graham and Graham is not exclusive to three factors.  However, I strongly believe you must prioritize these “other factors” with the same equal consideration as the others and consistently emphasize them as part of your ongoing training and education.  

Additionally, I’ve also seen K9 policies that divide the “three prongs” from the “fourth prong” and Plaintiff attorneys try to focus only on and draw attention to the three prongs which do not always apply exclusively and independent of other factors and considerations.  I believe all considerations for a deployment should be contained within a single section of your overall K9 policy and under one heading.

As part of a voluntary home work assignment, I’d recommend you read “Graham v. Connor 490 U.S. 386 (1989)” in its entirety if you have not already done so to further advance your ongoing K9-related education.

Bill Lewis II © December 2012

This article was originally published in “Police K-9 Magazine” (March/April 2013)