What Is Excessive Force? Can It Be a Battery?

Learn what excessive force is, and how the same conduct that causes an excessive force claim can result in a battery claim.

By , Attorney · University of Maryland School of Law
Updated by Dan Ray, Attorney · University of Missouri–Kansas City School of Law

The law allows police, jail staff, and prison officers some leeway to use reasonable and necessary force, based on the inherent dangers of their work and the split-second judgments they often must make. But the authority to use force has limits, including a prohibition against the use of excessive force.

At what point does an officer's conduct cross the line from reasonable to excessive force? We'll discuss the standards courts use in deciding whether an officer's use of force was excessive. We'll also explain how a battery claim can result from the same conduct giving rise to an excessive force claim.

What Is Excessive Force?

There's no specific definition of excessive force under federal law. Instead, courts review excessive force claims based on the specific constitutional right that allegedly was violated. The constitutional right that's involved depends on whether the person claiming a violation was:

  • an arrestee
  • a pretrial detainee, or
  • a post-conviction prisoner

Excessive Force Used in Arrests

In an arrest situation, the constitutional provision that governs is the Fourth Amendment's protection against unreasonable search and seizure. (Graham v. Connor, 490 U.S. 386 (1989).) Under the Fourth Amendment, the authority to make an arrest brings with it the authority to use some physical force.

The Fourth Amendment Standard

In evaluating an excessive force claim under the Fourth Amendment, courts use an "objective reasonableness" standard. This standard means a court must ask whether a reasonable law enforcement officer in similar circumstances would have used the amount of force in question.

The court must consider the circumstances as they would have appeared to the officer at the time, not with the benefit of 20/20 hindsight. A later finding that the suspect isn't guilty of an offense doesn't negate the authority to use force if there was probable cause to arrest.

Kinds of Facts Considered

An officer is allowed to use the amount of force that's necessary to subdue and arrest a suspect. Courts must analyze facts as diverse as the situations where officers must make arrests. Among other things, a court would consider whether the suspect:

  • was armed, or whether the officer had reason to believe the suspect was armed
  • fought officers or tried to resist being arrested
  • made verbal threats to the officer or others
  • tried to grab the officer's firearm or another weapon
  • refused to obey verbal commands or instructions
  • posed an immediate danger to bystanders or officers, and
  • was being arrested on suspicion of having committed a violent felony or a non-violent misdemeanor.

Excessive Force Used in Pretrial Detention

For those being held in jail and awaiting trial (or on their way to a jail cell), the court looks at the detainee's Fourteenth Amendment due process right to not be punished prior to conviction. (Kingsley v. Hendrickson, 576 U.S. 389 (2015).)

The Fourteenth Amendment Standard

Kingsley held that the "objective reasonableness" test also applies to pretrial detainees' excessive force cases. Due process rights protect detainees against conditions or restrictions that amount to punishment prior to a conviction, when the detainee is still presumed innocent.

A court must look at the facts from the perspective of a reasonable officer on the scene, taking into account the needs and complexities of managing a jail facility and preserving order and security.

Kinds of Facts Considered

The Kingsley Court said that these considerations can bear on the reasonableness of the force used:

  • the amount of force needed compared to the amount used
  • the extent of the detainee's injuries
  • any efforts made to limit the force used
  • the dangerousness of the situation
  • whether the officer had time to consider alternatives to the use of force, or simply had to react
  • the threat perceived by the officer, and
  • the detainee's actions, including whether the detainee was actively resisting.

Excessive Force Used in Prisons

The Eighth Amendment protects prisoners from cruel and unusual punishments. (Whitley v. Albers, 475 U.S. 312 (1986).)

The Eighth Amendment Standard

Under the Eighth Amendment's prohibition against cruel and unusual punishment, to prove that excessive force was used, a prisoner must show that the officer used force "maliciously or sadistically" for the purpose of causing harm. This standard is more difficult to meet than the objective reasonableness standard, as it requires proof that an officer's state of mind was to purposely cause harm.

Kinds of Facts Considered

The facts a court will consider in a prisoner case are much the same as those in a pretrial detainee case, including:

  • the amount of force needed and the amount used
  • whether the officer acted in an extreme or excessively cruel manner
  • the extent of the detainee's injuries
  • any efforts made to limit the force used
  • whether the officer had time to consider alternatives to the use of force, or simply had to react
  • whether force was being used to maintain or restore prison order
  • the dangerousness of the situation
  • the threat perceived by the officer, and
  • the prisoner's actions, including whether the prisoner was actively resisting.

The Qualified Immunity Defense in Excessive Force Cases

Police officers can raise defenses to an excessive force claim. One of the most effective is called "qualified immunity." When a police officer asserts this defense, the person making the excessive force claim must prove that a reasonable police officer acting in similar circumstances would have known that the force being used was so excessive that it violated a clearly established right.

If you bring an excessive force claim against a police officer, expect the officer to raise a qualified immunity defense. This defense is very difficult to overcome and often results in the excessive force claim being dismissed.

Is Excessive Force Considered a Battery?

Yes, the use of excessive force by police officers is usually considered a battery. Let's find out what a battery is, and how it differs from an excessive force claim.

What Is a Battery?

A battery—a kind of "intentional tort"—happens when one person intentionally makes harmful or offensive physical contact with another. The textbook example of a battery is when one person intentionally hits another person. It's easy to see how an allegation that police used excessive force might give rise to a battery claim.

(Learn more about how assault and battery can result in a civil lawsuit for damages.)

How Is a Battery Claim Different From an Excessive Force Claim?

The same conduct that results in an excessive force claim can also lead to a battery claim. Because they often result from the same facts, a person who brings excessive force and battery claims typically wins both or loses both. So how are they different?

Excessive Force

Excessive force is sometimes called a "constitutional tort," which is just a shorthand way of saying "wrongful conduct that violates a constitutional right." Excessive force is a federal law claim, typically brought under a federal statute found at 42 U.S.C. § 1983. You might see an excessive force claim referred to as a "1983 claim."


Battery is a state law claim. When a battery claim is brought against a police officer along with an excessive force claim, both claims usually are made as part of the same federal court lawsuit. Even though battery is a state law claim, a federal court is allowed to hear it when it's brought along with an excessive force claim.

Defenses to a Battery Claim

When you bring a battery claim against a police officer, the officer is likely to raise several defenses. One of those defenses is called "privilege." A battery is privileged if the officer used only that force to make an arrest that was reasonable under the circumstances.

When a qualified immunity defense succeeds against an excessive force claim, you should usually expect a privilege defense to win against a battery claim, too.

Get Help With Your Excessive Force and Battery Claims

There are some personal injury claims you might be able to handle on your own, without the help of a lawyer. Excessive force and battery claims against a police officer and the government aren't those kinds of claims.

Quite the opposite. These police misconduct cases are among the most complex and difficult of all personal injury cases. The law is difficult to understand, there are many effective defenses, and both the officers and the municipalities that employ them fight vigorously to defend themselves against legal liability.

You need to have expert legal help on your side, meaning an attorney who specializes in civil rights personal injury claims. Without that help, you're not likely to succeed. Here's how to find a personal injury lawyer who's right for you and your case.

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