What is Excessive Force? Can It Be Battery?

A look at constitutional and tort issues related to civil claims of excessive force.

The amount of force that police officers can use against a suspect when making an arrest is controversial. It is well-established that the right to make an arrest brings with it the right to use some degree of physical coercion. A person who has been subjected to excessive force during an arrest, however, may have a viable lawsuit against the police officers and the municipality that employs them (sometimes these lawsuits allege the commission of an intentional tort). So the all-important question becomes, what constitutes excessive force? Read on to learn more.

What is Excessive Force?

When excessive force is considered a violation of a person’s Fourth Amendment constitutional rights, it makes a lawsuit alleging excessive force a federal claim. These claims are brought under 42 U.S.C. Section 1983 of the Civil Rights Act of 1871. However, there is no specific definition of excessive force under federal law. Instead, courts and juries must look at whether a reasonable law enforcement officer in similar circumstances would have used the amount of force in question.

For example, juries can consider whether the suspect was resisting arrest at the time by fleeing, or by using physical force on the arresting officers. If a suspect is fleeing, some amount of force by the officer may be justified to subdue the person. However, how much force is justified would depend on the circumstances. Did the suspect pose an immediate threat of danger to bystanders or officers? Or was he or she simply running? Would it have been sufficient (and was it possible) to tackle the person or was it justified to use a weapon against the suspect, such as a taser or a firearm? This is called the “reasonableness standard.” Judges and juries must take a close look at all of the circumstances in order to determine how much force was reasonable.

When looking at excessive force, the fact finder has to consider the circumstances in that moment -- not with the benefit of 20/20 hindsight. The person subjected to force does not have to later be found guilty of the underlying offense. Verbal statements by the suspect are also taken into consideration. For example, an officer may be justified in using a certain level of force against a suspect who threatens to grab an officer’s weapon. Or, it may be reasonable to use force against a suspect who refuses to obey a verbal command by the officer to keep his or her hands up or away from the officer’s weapon. It is also relevant whether the suspect is being arrested for a violent felony versus a misdemeanor or a non-violent crime.

Finally, in order to bring an excessive force claim, the plaintiff has to show that the amount of force used was “sufficiently serious” to implicate his or her constitutional rights. For example, the use of overly tight handcuffs on a suspect, even if it causes bruises and bleeding, may not constitute unlawful force even if it appears unnecessary. Not even a push or shove will constitute excessive force in every situation. The totality of the circumstances must be considered.

Excessive Force Under the 8th and 14th Amendments

Usually, news reports about excessive force involve a person being arrested. In those situations, the Fourth Amendment definition above applies. However, the amount of force that is considered reasonable versus “excessive” changes if the victim is a convicted prisoner. Convicted inmates are protected by the Eighth Amendment’s cruel and unusual punishment clause. In order to prove that excessive force occurred, the officer must have used force maliciously or sadistically and with the purpose of causing harm. This is a harder threshold for plaintiffs to meet when compared with the Fourth Amendment standard. Use of force in a prison to restore order usually will not be considered excessive. The officer must have been acting in an extreme or excessively cruel manner.

Excessive force becomes even murkier if the person is in government custody but has not yet been convicted of a crime, (for example, a “pretrial detainee”). Excessive force in this context is considered a Fourteenth Amendment violation, and the definition can vary by jurisdiction. Typically, the plaintiff has to prove that the officer intended to “punish” the pre-trial inmate without any legitimate government purpose.

Is Excessive Force a Battery?

Yes, excessive force by police officers is usually considered a kind of battery. Whether a police brutality claim is called “excessive force” or “battery” typically depends on which law is being used -- federal or state. All of the examples above involve excessive force cases that would be brought in federal court. However, if a person sues for police brutality using state law, it may be referred to as a battery.

A battery is a tort, which is a civil wrong committed by one person against another. The legal definition of a battery will vary from state to state. Generally, however, a battery is the act of intentionally making offensive physical contact with another person without the other person’s consent. The “intent” merely means that the offender made the physical contact on purpose. The physical “contact” itself means that the offender touched the other person. The contact can be directly with an individual’s body or something closely related to the individual, such as the person’s clothing or a hat. As you can see, by definition, excessive force falls within the category of a civil battery. (Learn more about Assault and Battery as Personal Injury Claims.)

One of the defenses to a battery is "privilege." A battery is privileged if the physical contact equaled a reasonable amount of force during the course of an arrest. Since the underlying facts and considerations would be the same, a plaintiff will usually win both excessive force and battery claims, or lose both claims.

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