Can I Sue the Police for Excessive Force?
By Steven J. Ellison, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last reviewed October 19, 2021
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Yes, but you face an uphill battle. You can sue the police officers themselves who used excessive force. In some situations, you can sue the law enforcement officers' supervisor for their subordinate's conduct. And you also may be able to bring a claim against the municipality itself if it has a policy or custom that caused the use of excessive force. But civil rights cases involving police brutality or other police misconduct can be very complicated and hard to win.
What Is “Excessive Force"?
“Excessive force" essentially means more physical force than a police officer reasonably believes is necessary to conduct a stop or an arrest based on probable cause.
The use of excessive force is a violation of the Fourth Amendment's prohibition on unreasonable searches and seizures and, in some cases, the Eighth Amendment's prohibition on cruel and unusual punishment.
It need not be deadly force, nor must it result in serious injuries or death. Or even personal injury at all. Simply more force than is reasonably necessary under the circumstances.
In determining whether the amount of force violated the U.S. Constitution, courts look at the particular facts of the situation. For example:
- The severity of the crime at issue
- Whether you posed an immediate threat of harm to the officer or others
- The possibility that you were armed or that other persons subject to the police action were dangerous
- Whether you were actively resisting arrest
- Whether you were attempting to flee
- The duration of the officer's action
- The number of people the officer had to deal with
- Whether any injuries sustained were unnecessary
The focus is not on what the officer actually believed, but on what a reasonable law enforcement officer at the scene would have believed. For more about what constitutes excessive force, click here.
Your Claims Against the Police Officer
Although you may have a civil lawsuit against the law enforcement officer under state law (such as for false arrest, false imprisonment, battery, assault, or another tort), most cases involving the use of excessive force by the police are brought in federal court under a particular federal statute: 42 U.S.C. section 1983 (lawyers call this a “section 1983 claim").
The History and Scope of Section 1983
This law was initially enacted as part of the Ku Klux Klan Act of 1871 and was originally designed to fight post-Civil War racial violence in the South. It was reenacted as part of the Civil Rights Act of 1964 and has become the primary means of enforcing all constitutional rights, including the right to be free from excessive force.
Section 1983 applies to cities, but it does not apply to states, state agencies, or the federal government (but if you are subject to excessive force by a federal officer, such as the FBI, you may still have a claim under federal law).
The Officer Acted 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 at the time they used excessive force, the officer was acting with power granted to them by a local government. In other words, they essentially were enforcing a law at the time they used force.
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 their uniform
- Told you they were a police officer
- Used police-issued equipment (e.g., a taser, a revolver, a baton, handcuffs, a squad car, etc.)
The Officer Deprived You of Your Constitutional Rights
The second element is that the police officer's actions deprived you of rights, privileges, or immunities guaranteed under federal law or the United States Constitution. In an excessive force case, the focus typically is, as noted above, on your Fourth Amendment right to be free of unreasonable searches and seizures (and, in some cases, your Eighth Amendment right to be free from cruel and unusual punishment). If the police use excessive force, they violate your constitutional rights.
If you can prove these elements, you have a section 1983 claim. And if the police acted maliciously or with reckless indifference to your rights, you could theoretically recover punitive damages (these are damages intended to punish the officer for their misconduct).
The Officer's Defense: Qualified Immunity
But it is not that simple. The major obstacle to recovery under section 1983 – and an enormous obstacle it is – is the doctrine of qualified immunity. Qualified immunity, which was established by the Supreme Court in 1967, is a defense that 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. So broadly, in fact, that you essentially have to show that either the Supreme Court or the United States Court of Appeals for the federal district in which you are located has ruled in the victim's factor in a case just like yours. Similar isn't enough. It's got to be virtually the same.
That is really hard to do. In fact, a Reuters investigative study revealed that the qualified immunity defense barred recovery in most section 1983 claims. So even if you can make out your section 1983 claim, you have a tough fight in front of you if you choose to sue a police officer. But while qualified immunity makes a section 1983 claim hard to win, it's not impossible. That is why it's important to speak to an experienced civil rights attorney to discuss whether you have a legitimate case.
Your Claims Against a Police Officer's Supervisor
In some jurisdictions, you may have a claim against the police officer's supervisor for their subordinate's use of excessive force. This is called “supervisory liability." Although the Supreme Court has suggested that supervisory liability may not exist under section 1983, most lower courts still recognize at least some narrow form of the theory. But they differ widely in their views (and, in some states, judges on the same bench disagree with each other). You will 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 the local governing body — typically, a city — that employed the police officer. These are called Monell claims. 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 can show that its policy or custom actually caused the police officer to use excessive force. This also is hard to do.
Consult a Lawyer
Civil rights claims involving excessive force present substantial challenges. Police misconduct cases are hard to win, even for specialized law firms. If you believe that you have been mistreated by the police, consult an experienced civil rights lawyer as soon as possible. Many provide a free consultation. Courts apply state statutes of limitations for section 1983 claims, which vary widely, so you should act quickly.
Contact a qualified civil rights attorney to help you protect your rights.