What is Considered Excessive Force by an Officer?

How Virginia defines police misconduct, and how to seek justice

By Super Lawyers staff | Last updated on January 12, 2023

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Law enforcement agencies and individual police officers are tasked with protecting and serving the community. Unfortunately, officers can and have used excessive force when arresting a suspect or when conducting official operations.

Under the Fourth Amendment, Americans have protections against the use of excessive force by police departments. Indeed, excessive force (or, police brutality) may rise to the level of a civil rights violation.

What Is Excessive Force?

One of the challenges of excessive force cases is that the term is inherently difficult to define. What constitutes excessive force varies widely based on the specific circumstances at hand. On one end of the spectrum, a Virginia police officer throwing a suspect to the ground and causing an injury may be excessive force. On the other end of the spectrum, deadly force might not always be excessive force. It depends entirely on what was reasonable force within the context. As explained by the American Civil Liberties Union (ACLU), excessive force is a level of force beyond the amount that is “necessary to diffuse an incident” or to “protect themselves or others” from danger.

Further, explains Joshua Erlich, an attorney in Arlington, Virginia, “The Supreme Court established a doctrine called qualified immunity that makes it hard to succeed in these cases. Part of the analysis is whether a constitutional right is ‘clearly established.’ For the most part, the only way that a right becomes clearly established is if a court rules that way. So, essentially, the first time an individual is subject to a certain kind of excessive force, the constitutional right to be free from that force is not clearly established. For example, the clearly established right to be free from being slammed into a car might not clearly establish a right to be free from being slammed into a piece of furniture.”

Civil Rights Claims May Be Filed Under Section 1983

If you were a victim of excessive force in Virginia, your constitutional rights were violated. You have the right to bring a civil rights claim in federal court. Under Section 1983 of the Civil Rights Act of 1871, victims of law enforcement misconduct or their immediate family members may be able to sue the responsible police department.

To be clear, this is a civil lawsuit through which compensation may be available. While excessive use of force can sometimes result in criminal charges being filed against the responsible officer, that is a wholly separate legal claim. Through an excessive force lawsuit, compensation may be issued for medical bills, lost wages, pain and suffering, permanent disfigurement or impairment, wrongful death of a family member, and/or punitive damages.

Adds Erlich: “After an interaction with the police, if there is a criminal charge, the first thing to do is to get a criminal defense attorney and establish an attorney-client relationship. A lot of people call me after they were arrested and excessive force is used, and my first response is: ‘You need to deal with the criminal charge so we can focus on the civil rights case.’ The unfortunate reality is it is a lot harder to convince a jury that force was excessive if your client was convicted and that conviction comes into evidence.

Excessive Force Lawsuits Are Challenging

Excessive force cases are exceptionally complex. In fact, these are often considered to be some of the most difficult civil lawsuits to litigate. In many Virginia jurisdictions, there is a general overriding presumption that law enforcement officers probably acted with the necessary level of force. While this presumption can absolutely be overcome, civil rights plaintiffs must present a strong legal case supported by well-documented evidence.

“You have your usual blue code of silence issues,” says Erlich, “where it’s really hard to get cops to testify about other cops—even if they’re bad actors.”

Remember, all potential excessive force or police brutality claims are reviewed on a case-by-case basis, with careful attention paid to the specific circumstances. If you believe that you or your loved one was the victim of excessive force by a law enforcement officer, you should contact a law firm and speak to an experienced Virginia civil rights attorney right away.  Many provide a free consultation. For more information on this area of law, see our civil rights overview.

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