Reformulating Graham v. Connor’s Excessive Force Test to ADApt for Individuals with Disabilities

Individuals with disabilities are sixteen times more likely to be killed by officers during a law enforcement encounter than other individuals. As the ever-growing list of victims demonstrates, law enforcement violence against individuals with disabilities is a national crisis. Yet, the current test, developed under Graham v. Connor, for whether officers’ use of force is excessive during an arrest considers only three factors: severity of the crime, immediacy of the threat, and resistance to arrest or attempts to flee. On its face, Graham’s three-factor test does not contemplate whether an arrestee’s individual characteristics are relevant to an officer’s use of force. Recognizing that the Graham factors are “non-exhaustive” and “flexible,” some lower federal courts have relaxed the excessive force test to account for particular circumstances. However, there is no consensus among the circuit courts and the Supreme Court has not revisited the Graham test. Over three decades later, courts still do not have sufficient guidance on how to address individual disability under Graham. This Note advocates that in adherence to Graham’s expressed flexibility, its three-factor test should be reformulated to add in a fourth factor inspired by Title II of the Americans with Disabilities Act to account for whether “reasonable modifications” of an individual’s disability were made in situations when law enforcement employs force during the course of an arrest. Applying this standard in cases where an officer “reasonably should know” the arrestee has a disability promotes a baseline assumption that law enforcement officers have an active role in accommodating all disabilities.