Suing the Police for Excessive Force

If the police roughed you up, can you seek damages?

By , Attorney · Northwestern Pritzker School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law

Excessive force by the police during an arrest violates a person's Fourth Amendment rights. A suspect who has been a victim of excessive force may have a viable lawsuit against the arresting officers and even the municipality that employs them. The offending officer can also face criminal charges for police brutality.

Learn how the law defines police brutality and the potential consequences.

Police Brutality: Excessive Use of Force

Police officers are given a great deal of latitude in performing their duties. Because they are expected to protect the public and confront potentially violent individuals, they can legally use physical, and even deadly, force under certain circumstances. However, an officer who uses force when it is not called for, or who uses more force than is necessary to perform their job, crosses the line to police brutality.

How Much Force Can Police Use?

Police officers are generally allowed to use reasonable force to make an arrest. What is reasonable depends on the particular situation, including the severity of the crime, whether the suspect poses a threat of harm to the officer or others, and whether the suspect is actively resisting arrest or trying to flee.

Basically, an officer is allowed to use more force to arrest a resisting suspect than if the suspect were compliant, and may use deadly force if threatened with death or great bodily harm. (Tennessee v. Garner, 105 S.Ct. 1697 (1985).)

Defining Excessive Use of Force or Police Brutality

When a police officer uses more force than is necessary, their actions violate the arrestee's right to be free from unreasonable seizures under the Fourth Amendment. This conduct amounts to excessive use of force—police brutality.

Typically, the decision of whether police brutality occurred goes to a jury. The judge will instruct the jury to consider what a reasonable person with the officer's knowledge would have deemed necessary on the scene at that moment (not with the 20/20 vision of hindsight). (Graham v. Connor, 109 S.Ct. 1865 (1989).)

Police Brutality Lawsuits: Suing Police for Excessive Use of Force

Given that the unique and broad powers wielded by police officers are conferred by the state, police officers are essentially acting on behalf of the government. The U.S. Constitution defines the limits of governmental powers. These constitutional constraints apply to police officers as agents of the government.

Civil Lawsuits for Police Brutality

A citizen who is subjected to police brutality may be able to sue the police officer or even the department for personal injury damages under state tort law. Many cases of police brutality also involve civil rights violations under the Constitution or federal law.

Among the constitutional claims that a victim of police brutality may raise are:

Section 1983 of the Civil Rights Act allows a victim to file a civil lawsuit against the government to seek damages for a civil rights violation. It applies to violations committed by a wrongdoer acting "under color of law," which generally means acting in some government capacity.

Legal Hurdles in Police Brutality Lawsuits

A victim who sues a law enforcement officer for police brutality will likely face an obstacle known as immunity. Immunity is legal protection from civil liability.

Many states have statutes that provide immunity to public employees who are performing discretionary duties (like making an arrest). But, depending on the state, this protection might not apply when officers act in bad faith or outside the scope of their duties (such as excessive use of force).

In a Section 1983 claim, police will typically raise the defense of qualified immunity, which protects an officer from liability for civil rights violations as long as the officer's conduct did not violate a clearly established right.

Another potential challenge for citizens who want to sue the police department and the city or county is governmental immunity. States are immune from suit by private citizens in federal court under the 11th Amendment to the U.S. Constitution. Additionally, many states have laws that protect municipalities from liability in equivalent suits. Ultimately, whether the government has a viable "immunity" claim depends on the facts of the case and the jurisdiction it's in.

Criminal Charges for Police Brutality

In addition to civil lawsuits, an officer may face criminal charges for excessive use of force. Federal law makes it a crime to willfully deprive a person of their constitutional rights, which includes excessive use of force by police. This felony offense carries anywhere from one year to life in prison for a conviction. (18 U.S.C. § 242.) Prosecutors can also charge officers with general crimes, such as assault, battery, manslaughter, and murder.

Get Legal Help

The law governing excessive force suits can vary greatly from state to state and from state to federal court, especially on issues like the burden of proof and immunity. If you or someone close to you has been the victim of excessive force by the police, seek the help of an experienced civil rights attorney. A knowledgeable lawyer will be able to advise you of the applicable law and protect your rights.

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