Can I Sue the Police for Excessive Force?

Yes, you can sue police for excessive force, but you should expect to face an uphill battle.

You can sue a police officer responsible for using excessive force. In some situations, you can sue the law enforcement officer's supervisor for the officer's conduct.

You may also be able to bring a claim against a municipality if it has a policy or custom that caused the use of excessive force. However, civil rights cases involving police brutality or other police misconduct can be complicated and hard to win.

What Is Excessive Force?

“Excessive force" is a type of police brutality. It means an officer has used more physical force than they reasonably believe is necessary to conduct a stop or an arrest based on probable cause.

The use of excessive force violates the Fourth Amendment's prohibition on unreasonable searches and seizures.

In some cases, the use of excessive force also violates the Eighth Amendment's prohibition on cruel and unusual punishment.

Basics of Excessive Force

Excessive force doesn't have to be deadly force, nor does it necessarily involve something like a shooting. It also doesn't need to result in serious injuries, death, or even personal injury. Excessive force is more force than is reasonably necessary under the circumstances.

In determining whether the amount of force used violates the U.S. Constitution, courts look at the particular facts of a situation. Considerations include:

• The severity of the crime at issue
• Whether a victim posed an immediate threat of harm to the officer or others
• The possibility that the victim was armed or dangerous
• Whether the victim was actively resisting arrest
• Whether the victim was attempting to flee
• The duration of the officer's action
• The number of people the officer was responding to or managing
• Whether any injuries sustained were unnecessary

The focus is on something other than what the officer believed. Instead, what matters is what a reasonable law enforcement officer at the scene would have believed.

You can learn more about what constitutes excessive force and when to sue the police.

Your Claims Against the Police Officer

You may have a civil lawsuit against a law enforcement officer under state law. A civil case is separate from a criminal case.

State law claims exist for:

• False arrest
• False imprisonment
• Battery
• Assault
• Other torts

However, most cases involving the use of excessive force by police are brought in federal court.

You usually raise these misconduct claims under 42 U.S.C. Section 1983, a federal statute. Lawyers call this a “Section 1983 claim."

The History and Scope of Section 1983

Section 1983 was initially enacted as part of the Ku Klux Klan Act of 1871, also known as the Civil Rights Act of 1871. The law was originally designed to fight post-Civil War racial violence in the South.

Section 1983 was reenacted as part of the Civil Rights Act of 1964 and has become the primary means of enforcing all constitutional rights. Among those protected rights is the right to be free from excessive force.

Section 1983 applies to cities but not to states, state agencies, or the federal government. Suppose a federal officer, such as an FBI agent, subjects you to excessive force. In that case, you may still have a claim under federal law.

When an Officer Acts Under Color of Law

There are two elements of a Section 1983 excessive force claim. The first is that the police officer acted under “color of law."

This means that when they used excessive force, the officer acted with the power granted to them by a local government.

In other words, they were enforcing a law when they used force. Victims of police misconduct must present evidence to that effect.

In determining whether an officer was enforcing the law, a court will look at all of the circumstances, including whether the officer:

• Was on duty at the time
• Was in uniform
• Announced they were a police officer
• Used police-issued equipment such as a Taser, revolver, baton, handcuffs, or squad car

The Officer Deprived You of Your Constitutional Rights

The second element of a Section 1983 claim is that the police officer's actions deprived you of:

• Civil rights
• Privileges
• Immunities

To apply, these must be rights guaranteed under federal law or the United States Constitution. In an excessive force case, the focus is usually on the Fourth Amendment right to be free of unreasonable searches and seizures. If the police use excessive force, they violate your constitutional rights.

You have a successful Section 1983 claim if you can prove these elements listed above.

If the police acted maliciously or with reckless indifference to your rights, you could recover punitive damages, too. Punitive damages punish the officer for their misconduct.

The Officer's Defense: Qualified Immunity

The major obstacle to recovery under Section 1983 is the doctrine of qualified immunity. Qualified immunity, established by the Supreme Court in 1967, is a defense that law enforcement frequently invokes.

The defense protects police officers from personal liability unless they violate “clearly established" statutory or constitutional rights of which a "reasonable person" would have known.

Courts have construed this defense broadly. You have to show that either the U.S. Supreme Court or the U.S. Court of Appeals for the federal district in your area has ruled in a victim's favor in a case like yours.

It isn't enough for the cases to be similar. They need to be virtually the same.

A Reuters investigative study revealed that the qualified immunity defense barred recovery in most Section 1983 claims.

Even if you can make out your Section 1983 claim, you have an uphill battle if you choose to sue a police officer. But while qualified immunity makes a Section 1983 claim hard to win, it's not impossible.

Your Claims Against a Police Officer's Supervisor

In some jurisdictions, you may have a claim against the police officer's supervisor at a law enforcement agency or police department for their subordinate's use of excessive force. This is called “supervisory liability."

The U.S. Supreme Court has suggested that supervisory liability may not exist under Section 1983. However, most lower courts still recognize at least some narrow form of the theory.

Those courts differ widely in their views. In some states, judges on the same bench disagree with each other. You'll need an experienced civil rights lawyer to help you if you choose to sue a police officer's supervisor.

Your Claims Against a Municipality

You may be able to recover from a city or other local governing body that employed the police officer engaged in wrongful conduct. This type of claim is called a Monell claim.

To have a Monell claim, you must be able to show that a city policy or custom is the “moving force" behind the use of excessive force.

That can happen if the use of force results from:

• A formal regulation or policy statement
• An informal custom amounting to a widespread and essentially authorized practice
• The ratification by a final policymaker of the decision
• The failure to adequately train or supervise employees if that failure results from deliberate indifference to the injuries it may cause

In simple terms, a city may be liable if you show that its policy or custom caused the police officer to use excessive force. This is hard to do.

Consult a Lawyer

Civil rights violations involving excessive force present substantial challenges. Police misconduct cases take a lot of work to win, even for specialized law firms.

If you believe the police have mistreated you or a loved one, consult an experienced civil rights lawyer for legal advice.

Many civil rights attorneys provide free consultations and can educate you about civil rights law. Courts apply state statutes of limitations for Section 1983 claims, so you'll need to act quickly.