How to Sue the Police for Excessive Force
Everyone on U.S. soil is protected from excessive force of law enforcement by the Fourth and Eighth Amendments of the U.S. Constitution. Tragically, excessive force and police brutality continue to rise, violating our civil rights and often causing injury or death.
When law enforcement violates our civil rights, we must hold them accountable. Suing the police for the use of excessive force not only compensates the victim. It sets the bar for what the American public and courts will and will not tolerate, improving public safety for future generations.
But excessive force Section 1983 claims can be incredibly difficult to win. Largely because the doctrine of "qualified immunity protects police officers." Since using some level of force is a necessary part of the job, courts require a high level of proof that a clear and established violation of a person's rights occurred.
And second, because the police protect their own. The court relies heavily on the opinion of police experts to determine what a "reasonable" officer would do under similar circumstances. You're putting your trust in these expert police officers that they will be honest, unbiased, and objective. Good luck with that.
A recent analysis by Reuters showed that qualified immunity protected police in 57% of cases between 2017 and 2019. This number is up from 44% in 2005 to 2007. In fact, if you can't find a previous court ruling that had the same circumstances as your case and sided with the victim, your odds of winning decrease considerably.
If you've been a victim of excessive force or other police brutality, you could be entitled to financial compensation and important remedies. But suing the police for excessive force isn't easy. You're up against red tape, police protections, the "blue wall of silence," even prosecutorial misconduct. Knowing how to navigate the police excessive force claims process is vital to winning these cases.
What is Excessive Force?
Police officers can use "reasonable force" in performing their job duties – but how much force is "reasonable?" Shouting harsh commands? Wrestling a guy to the ground? Tasing a fleeing suspect? The definition is vague, allowing officers to easily claim, "I felt threatened" or "seemed reasonable to me."
It may be more helpful to ask, what is "excessive force?" Again, there is no cut-and-dry legal definition of excessive force. In general, excessive force is using a level of physical force greater than what a prudent and reasonable law enforcement officer would use under the circumstances to apprehend a suspect, defuse a situation, protect law enforcement, or protect the public from harm.
Any time a police officer's use of excessive force results in physical or mental injury to a person, that person has the right to file a claim for remedies. Common examples of excessive force may include:
- Arrest due to racial profiling
- Arrest without lawful objective
- Denying medical treatment to people in custody
- Excessive restraints/unsafe handcuff application
- Failure to notify family members of arrest/injury
- Injury caused during a chase
- Police dog attacks
- Sexual assault
- Unlawful shooting
- Unnecessary baton strikes
- Unnecessary chemical spray/pepper spray
- Unnecessary chokeholds
- Unnecessary hits, punches, kicks
- Unnecessary rubber bullet use
- Unnecessary stun gun use
- Unnecessary tasing
- Unreasonable harm to pets
- Use of deadly force against an unarmed suspect
- Use of physical force during suspect compliance
- Verbal abuse
- Wrongful death
Physical injury is NOT required to prove excessive force. For example, verbal abuse is considered use of excessive force. It is illegal for a police officer to use religious, cultural, racial, gender, sexual, or ethnic references when speaking with a suspect.
Police officers are trained to take a step-wise approach that escalates in force as needed: First, show up to the scene. Second, deliver orders in a non-threatening tone. Third, using physical restraint without a weapon (grabbing, kicking, hitting). Fourth, use a non-lethal weapon (tasers, dogs, mace, batons, rubber bullets). Lastly, using a lethal weapon (firearm).
If an officer crosses the line and uses more force than reasonably necessary in the given circumstances, that force is deemed "excessive." The situation's circumstances indicate whether force is excessive - not the physical act and not the officer's intent.
What Remedies Are Available for Excessive Force Lawsuits?
Excessive force lawsuits are critical to protecting the public and keeping our nation safe. Individuals who choose to pursue a personal injury or wrongful death claim against law enforcement for use of excessive force are entitled to numerous legal remedies.
Compensation for use of excessive force may include:
- Back pay, reduced earning capacity, lost wages
- Disfigurement / disability compensation
- Loss of companionship
- Loss of quality of life
- Medical expenses
- Mental anguish / emotional distress compensation
- Occupational therapy and rehabilitation costs
- Pain and suffering compensation
- Punitive damages (monetary awards to punish acts of malice or reckless disregard)
In addition, the court may issue an injunction ordering the police department to revise protocol or suspend or terminate an officer.
If the police misconduct is deemed a gross misdemeanor, the officer or other responsible parties could face up to one year in jail and/or a fine of up to $5,000. In wrongful death cases, the officers involved in the incident could face murder charges.
Who Can I Sue for Use of Excessive Force?
In most excessive force lawsuits, the victim will sue the individual officer who used excessive force. In some cases, the victim will take advantage of "supervisory liability" and sue the police officers' supervisor (who is responsible for their officer's actions).
In other cases, the victim may choose to file a "Monell claim" and sue the municipality. Monell claims typically arise when the city has allowed inadequate officer training or supervision, or enacted regulations, policies, or informal practices that enable the use of excessive force.
Who you can sue depends on the type of lawsuit you file and the state where the incident occurred. An experienced civil rights lawyer will be able to determine which type of lawsuit will achieve the optimal outcome for your case.
3 Steps to Winning a Police Excessive Force Lawsuit
If a law enforcement officer has used excessive force against you, you have the right to file a civil rights claim for damages under Section 1983 of the 1871 Civil Rights Act [42 USC Section 1983].
Victims of excessive force should take the following steps to protect their rights.
Step 1: Gather Evidence of Excessive Force
In a Section 1983 lawsuit, a Judge will review the evidence and circumstances of your case to determine whether the police officer used reasonable or excessive force. The Judge will look over evidence to determine whether a crime was involved, the severity of the crime, the level of threat posed to the officers by the suspect, the danger posed to the public by the suspect, and the opinions of expert police testimony (to determine whether the level of force used was "reasonable").
Your job is to prove that the officer's level of force was unreasonable and excessive. For this, you need to begin gathering evidence immediately after the incident.
Types of evidence used to prove excessive force cases may include:
- Written documentation of the events: Including dates, times, and exact locations. Create a written log of every detail you can remember.
- Photos of damage and injuries: Be sure to take pictures of any injuries you received during the incident and any damages to personal property. Try to time and date stamp these images if possible.
- Physical objects from the incident: Broken phones, torn clothes, bloodied objects, broken jewelry, any objects damaged during the incident are valuable forms of evidence. Store them in a safe place and resist getting objects repaired until after your case.
- Video and audio recordings: The most valuable form of evidence is recorded video or audio. If you had a dashcam or phone recording the incident, perfect. Save this data and make backup copies. If not, ask those who witnessed the incident whether they recorded anything and get a copy. You may be able to obtain CCTV footage from surrounding businesses, police bodycam footage, or police dashcam footage – though you may need to go through your civil rights lawyer to get this footage.
- Witness statements: Make a list of anyone present at the incident and obtain their contact information. If possible, have the witness write down what they observed and sign and date the document. If you have trouble getting witness statements, your civil rights lawyer will be able to assist you.
Step 2: Contact A Civil Rights Attorney
Obtaining a skilled civil rights attorney who has considerable experience representing victims of police misconduct and excessive force is critical to winning these cases. As mentioned above, you are going up against red tape, the qualified immunity doctrine, the "blue wall of silence," and even prosecutorial misconduct.
Remember. Choose a civil rights attorney with an exceptional and aggressive track record for securing favorable verdicts, record-setting settlements, and million-dollar damages in civil rights, criminal defense, and personal injury cases.
And you need to ACT FAST here – contacting a lawyer as soon as possible after the incident occurs. Your lawyer will help you collect important evidence, evidence that can disappear rapidly after an excessive force incident. And second, numerous statutes of limitations are scattered throughout the laws surrounding excessive force cases. These statutes limit the time you have to file a lawsuit. If you miss these deadlines, you lose your opportunity to file a claim, collect damages, and obtain justice.
Many experienced civil rights attorneys take excessive force cases on contingency, meaning you don't pay a dime until you win.
Step 3: Prove Your Case
Your lawyer will help you file a complaint and prepare your case. In excessive force Section 1983 claims, the court is going to examine two elements:
(1) Whether the police officer was enforcing the law at the time they used force (acting under "color of law"), and
(2) Whether the police officer's force deprived you of your rights under the U.S. Constitution
For the first element, the court will consider whether you knew the officer was a police officer (wearing a uniform, identified themselves as a police officer), whether the officer was on duty at the time they used force against you, and whether they used official police equipment against you (handcuffs, taser, police vehicle).
For the second element, the court will consider whether the force was reasonable or excessive by examining the specific circumstances of the incident as described above. For example, the court will look at facts and evidence showing:
- Level of threat to the officers
- Level of danger to public
- Whether the officer was outnumbered
- How long the officer(s) used force
- Whether you were resisting arrest
- Whether you were armed
- Whether you were trying to flee
- Severity of the crime involved
- Degree of unnecessary injuries
- Influence of mental illness
To determine the types of damages you will collect should you win your case, the court will consider whether the officer's use of excessive force was a result of negligence, malice, or reckless indifference.
If you or a loved one has been injured or treated unjustly by law enforcement, you have the right to pursue remedies and financial compensation. It is our job to hold the police accountable.
Our team defend the rights of those injured by police brutality, police misconduct, and excessive force in the Bronx, Manhattan, Brooklyn, Long Island, and across the state of New York and New Jersey.
Contact Civil Rights Attorney Jaime Santana at 212.448.0055 or Connect Online for a free, confidential discussion of your options.