What Counts as Excessive Force by a Police Officer?

A police officer’s job is to protect and serve the public. Officers can use force, including deadly force, when it’s necessary to make an arrest, protect their own safety, or protect public safety. Unfortunately, officers can and have used excessive force when conducting official operations.

Police misconduct shakes public trust. When it occurs, victims have the right to hold the individual officers accountable. It’s critical to know your rights concerning police misconduct and how to protect yourself. An experienced civil rights attorney can help explain your rights and provide legal advice.

What Is Police Misconduct?

Law enforcement agencies and individual officers have a duty to use the appropriate amount of force for a given situation. If non-violent methods or de-escalation can be used, an officer isn’t justified in the use of deadly physical force or other force applications such as choke holds, tasers, or pepper spray.

Police misconduct cases can take on a variety of forms, including:

False Arrest

If a police officer arrests someone without probable cause to suspect the person of involvement in criminal activity — or if the officer targets someone out of malice — the victim may be able to bring a successful claim for false arrest.

Malicious Prosecution

If a police officer or prosecutor brings a criminal case without evidence of a crime, it can result in substantial civil rights violations, damage to a person’s reputation, or lost income.

Racial Profiling

When a police officer targets someone for an interrogation, search, seizure, or arrest based on their apparent race or ethnicity, this can result in a significant violation of the Constitution and civil rights law.

Use of Excessive Force

Constitutional rights violations in police brutality or excessive force cases depends on the custodial status of the victim.

If the victim was being held without a conviction, the case is evaluated as to whether the officer’s use of force was far beyond what was necessary. If the victim was already in custody when harmed, the standard is whether the officer used physical force to punish, retaliate, or harm the prisoner rather than to protect the officer or others from harm.

One of the challenges of non-lethal excessive force cases is that the term is inherently difficult to define. What constitutes an excessive amount of force varies widely based on the totality of the circumstances involved.

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.

Police Harassment

A law enforcement officer can be liable for civil rights violations if they engage in a pattern of harassing or threatening conduct towards an innocent person. Harassment requires a pattern. An isolated case is generally insufficient to prove harassment.

Unreasonable Searches and Seizures

Under the Fourth Amendment to the U.S. Constitution, police cannot perform an unreasonable search and seizure without probable cause. Police sometimes search a person’s belongings without a valid reason or seize property without it being evidence of a crime.

Forced Confessions

When a person is interrogated by the police while in custody, they can face extraordinary pressure to confess due to illegal methods such as denying the use of the restroom or refusing to give the person food and water. Police cannot beat, threaten, or coerce a confession from a suspect.

Sexual Misconduct

Law enforcement officers who engage in sexual misconduct with persons in their custody deprive that person of liberty without due process of law.

Constitutional Protections Against Police Misconduct

The U.S. Constitution guarantees rights against police misconduct. For example, the Fourth Amendment protects against unreasonable searches and seizures. This includes the use of excessive force during an arrest and detention.

The Fourteenth Amendment guarantees due process and equal protection under the law.

Section 1983 Protections Against Deprivation of Civil Rights

In addition to constitutional protections, the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983, provides a means for a plaintiff to sue for violating federally protected rights and allows plaintiffs to seek monetary damages. Section 1983 claims must allege the following:

• A person subjected the plaintiff to conduct under the color of law
• The alleged conduct deprived the plaintiff of their rights under the Constitution or federal law

Section 1983 allows a plaintiff to seek redress for a violation of constitutional rights by a person exercising authority given to them by the government. The action must be taken with the appearance that the government authorized it.

However, bringing cases under section 1983 is not easy. The U.S. Supreme Court’s interpretation holds that individual officers have “qualified immunity” from civil rights damages for violating a person’s constitutional rights unless the right was “clearly established” at the time of the incident.

What Is Qualified Immunity?

Qualified immunity basically means that a government official or employee cannot be sued in their personal capacity unless they violated a “clearly established” legal or constitutional right.

Judges and juries do not second-guess the discretionary actions of government officials unless they involve conduct that any “reasonable person” would find unconstitutional or illegal.

“Qualified immunity makes it hard to succeed in these cases,” explains Joshua Erlich, an attorney in Arlington, Virginia. “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.”

“Immunity can be very confusing to lawyers, let alone laypeople,” adds North Carolina employment and civil rights attorney S. Luke Largess. “It’s a quagmire intellectually and analytically. It’s hard to keep it simple,” he says.

“In both federal and state courts, you sue the officer in their capacity, so you can sue them as an official of an employer, but you can also sue them as an individual for conduct that is more than negligent. So in a false arrest case, if he acts with malice or acts corruptly or exceeds the scope of his lawful authority, then you can sue them as a private citizen.”

The best way around qualified immunity, Largess says, is if you can show that an officer has been trained and had knowledge of the law, so they knew that their actions were unlawful. It is not enough for a plaintiff to allege a general violation of federal law — the plaintiff must allege a specific constitutional or statutory law violation. Getting help in these cases is often necessary in order to pursue legal remedies.

Legal Remedies for Victims of Police Misconduct

Legal remedies for victims of police misconduct include filing complaints, bringing civil rights lawsuits, and seeking criminal charges against offending officers. Victims can file a personal injury claim against officers. Loved ones can file a wrongful death lawsuit for the unlawful use of lethal force.

Police misconduct can fall under civil or criminal laws. For example, in a civil case against a law enforcement agency, the U.S. Department of Justice would aim to correct the agency’s problematic policies or practices and seek relief for victims.

Civil cases involve a lower standard of proof, “preponderance of the evidence.” By contrast, in a criminal case, the evidence must prove beyond a reasonable doubt that the police officer charged with misconduct is guilty. Criminal cases can result in jail time or other penalties.

How To Document and Report Police Misconduct

As in all legal matters, the more documentation you have to support your claim, the better. Document everything you can. Whether you use your cell phone to record a traffic stop incident or write everything down after experiencing police misconduct, your documentation will help. It can also be a powerful tool in police accountability.

Try to document the following:

• Location, date, and time of the incident
• Description of events
• The officer’s name and badge number (if you have it)
• Photos, videos, or audio of the incident
• Names and contact information of other witnesses to the incident

Having key details will allow you to make a report to the correct authority.

Steps To Take If You Experience Police Misconduct

“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,” says Erlich.

“A lot of people call me after they were arrested and excessive force was 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 that it is a lot harder to convince a jury that the police use of force was excessive if your client was convicted and that conviction comes into evidence.”

In general, anyone can file a complaint for police conduct, whether you were the victim of police misconduct or a witness to it.

You can file a complaint with the agency that hired the law enforcement officer. For example, you may be able to file a complaint with the police department’s internal affairs division or with your municipality’s civilian oversight board. Most police department websites have online complaint forms or a hotline to call to make a complaint.

You may also file a complaint with the U.S. Department of Justice’s Civil Rights Division if the law enforcement officer violated rights under the U.S. Constitution or federal law. Your attorney can help you determine the best process for your complaint against federal, state, and local law enforcement agencies.

Find a Civil Rights Lawyer

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 jurisdictions, there is a general overriding presumption that law enforcement officers probably acted with the necessary type 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.”

If you believe your civil rights were violated as a result of police misconduct, talk to an experienced civil rights defense attorney. They can evaluate your claim and help determine your next steps for filing a complaint or pursuing a lawsuit.