What Is Excessive Force? Can It Be Battery?

Learn how judges and juries gauge whether an officer's actions constitute excessive use of force.

By | Updated by Rebecca Pirius, Attorney

The amount of force that law enforcement and other government actors can use in conducting their duties remains controversial. The law allows some leniency for the actions of police, jail staff, and prison officers based on the inherent dangers of their work and the split-second judgments they must often make. But at what point does an officer's conduct cross the line to excessive force?

This article discusses the standards courts must use in deciding whether an officer's use of force is excessive. A person who has been subjected to excessive force by a government actor may have a viable lawsuit against the officers and the government agency that employs them (sometimes these lawsuits allege the commission of an intentional tort).

What Is Excessive Force?

There's no specific definition of excessive force under federal law. Instead, the court will review the claim based on the specific constitutional right that was allegedly violated, which will vary depending on the circumstances.

Arrestees. 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).)

Pretrial detainees. For those being held in jail pretrial (or on their way to a jail cell), the court looks at the detainee's Fourteenth Amendment Due Process rights to not be punished prior to conviction. (Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).)

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

Excessive Force Used in Arrests

It is well-established that the right to make an arrest brings with it the right to use some degree of physical coercion. In evaluating an excessive force claim under the Fourth Amendment, courts and juries must look at whether a reasonable law enforcement officer in similar circumstances would have used the amount of force in question—an "objective reasonableness" standard.

For example, juries can consider whether the suspect was resisting arrest at the time by fleeing or 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 were they 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? 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 might be reasonable to use force against a suspect who refuses to obey a verbal command by the officer to keep their 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.

Excessive Force Used in Pretrial Detention

In 2015, the U.S. Supreme Court held that the "objective reasonableness" test also applies to pretrial detainees' excessive force cases. Here, Due Process rights protect detainees against conditions or restrictions that amount to punishment prior to a conviction when the individual is still presumed innocent. (Kingsley v. Hendrickson.)

The court or jury must look to the perspective of a reasonable officer on the scene taking into account the need and complexities of managing a jail facility and preserving order and security.

The Court noted the following considerations may bear on the reasonableness of the force:

  • the amount of force needed and the amount used
  • the extents of the detainee's injuries
  • any efforts made to limit the force used
  • the severity of the situation
  • the threat perceived by the officer, and
  • the detainee's actions (such as actively resisting).

Excessive Force Used in Prisons

Convicted inmates are protected by the Eighth Amendment's prohibition against cruel and unusual punishment. In order to prove that excessive force occurred, the officer must have used force "maliciously or sadistically" for the purpose of causing harm. This threshold is more difficult for plaintiffs to meet when compared with the objectively reasonable standard, as it delves into an officer's state of mind to purposely cause harm. The 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.

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.

Talk to a Lawyer

When pursuing a lawsuit involving excessive force, contact an attorney who works in the area of civil rights or personal injury. And know that, even when a viable claim exists, officers might have a defense to liability called "qualified immunity." Your attorney can explain how the laws and this defense might play out in your case.

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