Can I Sue for Excessive Force?

Often times, when a defendant is arrested, excessive force is used. The question that arises is whether a criminal defendant can sue the officer and/or his police agency for excessive force? The simple answer is, yes, you can sue the police officers who used excessive force but it is an uphill battle. 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 difficult to win.

“Excessive force” is defined as more physical force than a police officer reasonably believes is necessary to conduct a stop or an arrest. The officer must always have probable case to conduct this stop or arrest. The use of excessive force is a violation of the Fourth Amendment, which prohibits unlawful searches and seizures. In some cases the Eighth Amendment could apply which prohibits cruel and unusual punishment. It does not need to be deadly force, nor does it have to result in serious injuries or death. 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. Some factors that can be considered is 1) the severity of the crime at issue; 2) whether the defendant posed an immediate threat or harm to the officers and the community; 3) The possibility that the defendant was armed or that the defendant was dangerous (i.e. known gang member with the potential of causing harm); 4) Whether you were actively resisting arrest; 5) Whether you were attempting to flee; and/or 6) 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.

Although you may have a civil lawsuit against the law enforcement officer under state law, 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.

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 Richts Act of 1964 and has become the primary means of enforcing all constitutional rights, including the right to be free from excessive force.

In determining whether an officer was enforcing the law, a court will look at all of the circumstances, including whether the officer: 1) Was on duty at the time; 2) Was in their uniform; 3) Told you they were a police officer; 4) Used police-issued equipment. The circumstances surrounding the arrest and the defendant’s behavior will always be carefully assessed in determining whether or not excessive force was used.