Anyone who has had a bad experience with the police—even one not resulting in physical injury—has probably wondered whether there is any remedy. Many want to know whether they can sue. The answer to that question, as with so many legal queries, is, “It depends.”
Generally, citizens can (successfully) sue the police for infliction of emotional distress in one of two instances, when an officer:
But if the court determines that the conduct was within the scope of the officer’s law-enforcement duties, that officer is generally immune (and can't be held liable).
Someone alleging that an officer intentionally caused emotional distress must generally show that:
Conduct is extreme and outrageous when it goes beyond all possible bounds of decency; it is behavior that society won’t tolerate. Conduct qualifies as extreme and outrageous when it would cause a reasonable person in a similar circumstance to suffer extreme emotional distress; it must be more than annoying, offensive, or humiliating.
Courts decide whether conduct is extreme and outrageous on a case-by-case basis. The court may consider whether:
In one federal case, for example, a woman offered support to her husband, who was under arrest and being interrogated for the murder of her three-year-old daughter. The detective who heard her offer of support yelled at her that her husband killed the child and that the husband never loved her or her daughter. The officer was in a position of authority and the mother was particularly susceptible to emotional distress at that time. The conduct was sufficiently extreme and outrageous for an intentional-infliction-of-emotional-distress claim. (Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010).)
Extreme and outrageous conduct is actionable if the officer either intended to cause or recklessly disregarded the likelihood that the conduct would cause emotional distress. Conduct that is simply mean, spiteful, or uncaring normally isn’t sufficient.
For example, in another federal case, an officer was attempting to arrest a suspect for passing checks on a closed account. The officer allowed the suspect’s mother to go into the house and retrieve bank records proving that the account wasn't closed. When she attempted to show the documents to the officer, he told her that she shouldn't interfere in police business and threw her against a car, injuring her neck and back. The court held that the officer’s conduct was outrageous and done with the virtual certainty that emotional distress would result. (Thomas v. Frederick, 766 F.Supp. 540 (W.D. LA. 1991).)
Emotional distress is severe when:
Intensity and duration are factors courts consider in determining whether distress is severe; it's typically not severe if it is slight or short-lived.
For example, in yet another federal case, the plaintiff sued for intentional infliction of emotional distress due to being beaten and pepper-sprayed by police. But weight loss, embarrassment, confusion, and one visit to a psychologist didn’t show emotional distress that was sufficiently severe. (Vincent v. Prince George's County, MD, 157 F. Supp. 2d 588 (D. Md. 2001).)
Citizens can also sue police officers when the latter cause emotional distress negligently, rather than intentionally or recklessly. The extent of emotional harm required for a successful lawsuit depends on the jurisdiction.
But in order for there to be potential liability for negligently caused emotional distress, the officer must owe a “duty of care” to the citizen. In other words, the court will consider whether the officer had some kind of special relationship with the plaintiff that’s distinct from the general police responsibility to the public at large.
For example, in a Louisiana case, a rape victim sued a sheriff for the emotional distress she suffered when the evidence in her case was mistakenly destroyed before a suspect had been arrested. The court held that the duty to preserve evidence goes to the general public, and that law enforcement doesn’t owe any special duty to protect an individual from the misplacement or mistaken destruction of evidence. (Dennis v. Wiley, 22 So.3d 189 (La. App. 1 Cir. 2009).)
Ironically enough, some states require physical injury for emotional distress suits. This injury might be directly caused by the officer’s conduct or a physical manifestation of emotional suffering.
Courts are more likely to require physical harm in negligent infliction of emotional distress cases. But even if it’s not required, physical harm resulting from emotional distress, such as ulcers, headaches, or a miscarriage, will make it easier to prove the case.
In one case, the plaintiff claimed to have been assaulted during an arrest on a college campus. The court rejected the emotional distress claim because there was no evidence of physical symptoms resulting from distress. The only physical injuries suffered were from the assault, not the emotional trauma the plaintiff claimed to have experienced. (Godette v. Stanley, 490 F.Supp.2d 72 (D. Mass. 2007).)
Keep in mind that this article discusses the law generally, and that the rules that apply to a situation you face will depend on your jurisdiction. If you’re wondering whether you have a viable lawsuit against the police (including the government that the police is a part of), consider consulting an attorney experienced in cases like yours. Potential lawyers to consult include ones specializing in civil rights or personal injury. An experienced lawyer can explain the law that applies to your situation, analyze the merits of your claim, and review potential defenses for the police and government.
If you also have a criminal case, make sure to talk to your criminal defense attorney—you don't want a civil lawsuit compromising your interests as a criminal defendant.