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When to Sue the Police for Excessive Force

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By George Khoury, Esq. on October 24, 2016 12:05 PM

When police officers cross the line and cause a person injury, even if the officers were making a lawful arrest, there may be a claim of excessive force that the victim or arrestee can use to sue the police. Generally, the law allows law enforcement to use the force that is reasonably necessary in order to affect an arrest. However, the amount of force that is reasonably necessary is not an easily quantifiable amount.

There is a common misconception that when a person is lawfully arrested and convicted, that even if an officer used excessive force, the arrestee will not have a claim. That is just plain wrong. Even if a person is convicted of the crime they were arrested for, they can still successfully bring a claim for excessive force. Surprisingly though, this even applies to convictions for resisting arrest.

How Much Force Is Excessive Force?

The phrase more force than is reasonably necessary is very situational. Cuts, bumps, bruises, and even broken bones are not necessarily signs of excessive force. If an arrestee ran from police, is resisting, or fighting back, an officer will be justified in using more force than if the arrestee is cooperating.

Additionally, size and appearances matter. If a small officer is trying to arrest a large person, and the large person is not cooperating, an officer's quicker response and use of more force will likely be considered reasonable. Also, if an arrestee is acting in an aggressive or threatening manner, officers may be justified in using more force. However, the force needs to stop when an arrestee is under control and in custody. When the force goes beyond that, or is used against a person complying with all orders, then there can be very serious consequences for the officers involved.

Although there are guidelines for officers to follow on how much force is reasonable in many situations, it is understood that officers must use their best judgment in the heat of the moment. As such, when making the determination, courts ask the question: What would a reasonable police officer do in the same situation?

Evidence of Excessive Force

In the past, there were problems with proving an officer acted with excessive force. But now getting evidence is much easier thanks to police body cameras and the public's use of cell phone video. Video evidence allows more claims to be pursued.

Video evidence takes away the ability of law enforcement to make these cases a he said/she said type case by providing actual objective evidence of what happened.

What's the Legal Claim?

While many states have laws prohibiting the use of excessive force by officers, the primary legal claim is based on federal law and available in all 50 states. Under 42 USC 1983, people have the right to be free from violations of their constitutional rights by governmental actors. When an officer uses more force than is reasonably necessary, they are violating a person's Fourth Amendment rights. The Fourth Amendment not only protects people from unreasonable searches, but also from unreasonable seizures. The use of excessive force is an unreasonable seizure.

While section 1983 claims can be used to make claims against the individual officer(s), claims against the state or state agency are barred by the Eleventh Amendment. However, local governments or municipalities can be sued under 1983.

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