Understanding Excessive Force
In a given case, any two people may disagree about whether a police officer’s use of force was justified under the circumstances. Given that these judgments are inherently subjective, courts must apply a standard based on common sense.
How can you tell whether the force used against you was excessive? A court will decide based on the legal definition of excessive force, which is ultimately based on the U.S. Constitution.
What Is Excessive Force?
Excessive force is defined as the use of more force than a reasonable police officer would have used in the same set of circumstances to achieve a legitimate goal. For instance, if a certain level of force is necessary to arrest a suspect, police are allowed to use that amount of force and no more than that. In a more extreme situation, such as a suspect waving a knife around, the level of force a reasonable police officer might use is likely to be greater. What makes a certain level of force “excessive” is simply that it exceeds what a reasonable officer would have done in the same situation.
Excessive Force Explained
Of course, no two encounters with the police are exactly alike. So, how can you know whether the police use of force in your case was excessive under the law? The court will determine this by imagining the behavior of a reasonable police officer in the same situation and comparing that behavior to what the police did in your situation. For example, the court might conclude that a reasonable officer would have applied a restraint hold when the officer hit you with a baton instead. In that situation, the officer’s use of force may not have been reasonable.
Types of Excessive Force
Excessive force by the police can be either lethal or nonlethal. Lethal force is sufficient to kill or cause serious bodily injury. Nonlethal force is force that is not likely to kill or cause serious bodily injury.
Nonlethal Force
Nonlethal force includes the use of tools such as:
- Handcuffs
- Zip ties
- Batons
- Neck restraint holds
- Tasers
- Pepper spray
- Tear gas
- Beanbag rounds
- Rubber bullets
- Flashbangs
- Sound cannons
Many of these supposedly nonlethal tools can cause serious bodily injury or even death when misused by the police. If the police misused a nonlethal tool in such a way as to injure you unnecessarily, you may be able to prove excessive force. For instance, if you were participating in a political protest when the police fired rubber bullets at the crowd, you would want to prove that their actions were not reasonable under the circumstances and were, therefore, excessive force.
Lethal Force
Lethal force primarily refers to the use of firearms, which account for about 96 percent of all killings by the police, according to the Everytown for Gun Safety Support Fund. The police are not allowed to use firearms unless there is a threat of death or serious injury. If you were shot by the police despite posing no threat to them, you may have an excessive force case.
The Use-of-Force Spectrum
How can a police officer know whether a particular level of force is reasonable or excessive? By applying the use-of-force continuum. This is a series of actions a police officer may take, escalating the use of force as needed based on the facts of the situation. Different police departments use different versions of this spectrum, but the National Institute of Justice created a sample version to help guide police departments all over the United States:
- Officer presence, with a professional and nonthreatening demeanor
- Verbalization without physical force, escalating to short, sharp commands
- Empty hand control, escalating from grabs and holds to punches and kicks
- Less-lethal methods, such as the use of Tasers or chemical sprays
- Lethal force, such as the use of a firearm
If an officer escalates up the use-of-force spectrum without any escalation on the suspect’s part, that may be a case of excessive force. For example, if an officer asks a suspect to show their ID but then strikes them in the head as they are trying to retrieve it, this would be an escalation without any provocation on the part of the suspect. The use-of-force continuum is often an effective way to assess whether an officer’s actions were reasonable.
Legal Framework
The legal framework for protecting American citizens from excessive force is based on the Fourth Amendment to the U.S. Constitution, other federal laws such as the Civil Rights Act of 1964, and various state laws.
Constitutional Rights and Protections Against Excessive Force
The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Excessive use of force by the police is treated as an unreasonable seizure under U.S. law. That means that excessive force is not merely against the law but is a violation of your Constitutional rights.
Supreme Court Interpretation of Excessive Force
According to the Federal Law Enforcement Training Center’s Legal Division, the Supreme Court ruled in Graham v. Connor, 1989, that “all claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its objective reasonableness standard.”
With this ruling, the Supreme Court instructed all lower courts to judge excessive force cases on the basis of “objective reasonableness,” not the officers’ motivations. Before this ruling, officers in such cases were sometimes judged on whether they acted maliciously. In Graham v. Connor, the Supreme Court ruled that this was not the correct basis for deciding excessive force cases.
If the officer’s actions were objectively reasonable under the circumstances and without the benefit of hindsight, then the use of force was not excessive. If the officer’s actions were not reasonable, then the use of force may have been excessive. The motivations of the officer are irrelevant to this decision.
Is Excessive Force Legal?
Excessive force is not legal because it violates the victim’s rights under the Fourth Amendment. Although excessive force is not legal, it is often difficult to enforce laws against excessive force. This is partly due to laws giving police officers qualified immunity and partly due to the aggressive defense of accused police officers by the police unions. To prove excessive force and hold police officers accountable, your lawyer will need to show that police violated Federal, State, or local laws.
Federal Law
The Fourth Amendment to the U.S. Constitution bars police officers from using excessive force, but other Federal laws also address this issue. Section 1983 of Title 42 of the United States Code states that anyone who deprives another person of their Constitutional rights under color of law is liable to the injured party in an action at law. This means that you can sue a police officer for using excessive force. Although Section 1983 was passed in 1871, it has only been legally enforced since the Supreme Court ruling in the case of Monroe V. Pape in 1961.
The Civil Rights Act of 1964
According to the Civil Rights Division of the U.S. Department of Justice, the Civil Rights Act of 1964 prohibits “discriminatory use of force” based on race, color, national origin, sex, or religion. You can file a lawsuit in Federal court if you believe the police used excessive force against you due to racial discrimination. However, you are only allowed to file suit if you have first attempted to resolve the incident by filing a complaint with the Department of Justice.
Local and State Laws
States and local governments may also have their own laws in place against excessive force by the police. Your attorney can tell you whether any local laws apply to your case. The state of Missouri addresses excessive force in Missouri Revised Statutes 563.046.
How Is Excessive Force Defined in Missouri?
Missouri law defines excessive force as a level of force that was not objectively reasonable based on all the facts available to the officer on the scene. The use of force by a police officer is lawful in Missouri if:
- The arrest itself was lawful, or the officer reasonably believed it to be lawful
- The amount of force used by the officer was objectively reasonable
Missouri law considers the use of deadly force as justified if the officer reasonably believed that lethal force was immediately necessary to arrest a suspect or prevent an escape attempt. In addition, the officer must also reasonably believe that the person was either trying to escape by using a deadly weapon or that they would have put the officer or others at risk of serious injury or death unless they were stopped immediately.
Situations Involving Excessive Force
Officers of the law have used excessive force in a range of situations, including arrests, pretrial detention, and while the subject was incarcerated.
Excessive Force During an Arrest
Typical circumstances for excessive force during an arrest include:
- Escalating the use of force without regard for the use-of-force continuum
- Striking an arrestee who is already cuffed and not resisting
- Ordering police dogs to attack a person who is doing nothing to resist
- Using a Taser on an arrestee for no justifiable reason
- Shooting a fleeing suspect who represents no physical threat
Excessive Force in Pretrial Detention
After an arrest, an officer may use excessive force by:
- Beating a suspect during questioning
- Committing sexual assault against a detainee
- Putting an arrestee into a dangerous situation unnecessarily
Excessive Force in Jails and Prisons
Officers may also use excessive force against inmates in the jail or prison system. Typical circumstances include:
- Using excessive force directly on an inmate
- Failing to protect the inmate from the threat of violence
- Overusing chemical spray on inmates
Determining Excessive Force
A court deciding an excessive force case will use the objective reasonableness standard to determine whether the officer’s actions were justified under the circumstances. The court will consider all the facts known to the officer at the time but will not consider anything the officer could only have known after the fact. For instance, in Graham v. Connor, Graham was suffering from an insulin reaction, but officers on the scene interpreted him as intoxicated. The fact that Graham was having an insulin reaction and was not really intoxicated would only be relevant if officers knew it at the time.
How Is Excessive Force Determined?
Excessive force is determined by comparing the actions of the officer in your case to the actions of a hypothetical reasonable officer in the same situation. For instance, if a reasonable officer would have used a restraint hold in the situation, but this officer started punching you in the face, the use of force may have been excessive. According to the Federal Law Enforcement Training Center, the Supreme Court has stated that officers must often make a split-second decision about the use of force, so the word “reasonable” cannot be precisely defined.
What Are the Elements of an Excessive Force Claim?
The elements of an excessive force claim are:
- The police officer was acting under color of law
- The officer violated your civil rights, privileges, or immunities
To show that the officer was acting under color of law, you must demonstrate that they were operating as a police officer when they used excessive force on you. For instance, you might show that they were in uniform or that they told you they were a police officer.
To show that the officer deprived you of your civil rights, you must demonstrate that they violated your Fourth Amendment right against unreasonable search and seizure or that they violated the Civil Rights Act of 1964.
Police Accountability and Consequences
One reason to file a lawsuit against the police for excessive force is to hold the officers accountable for their actions. Trying to impose any consequences on a police officer for excessive force can be an uphill battle due to laws giving police officers legal protection in many circumstances.
What Are the Consequences for Police Officers Who Use Excessive Force?
Officers who commit police misconduct, including excessive force, can be subject to criminal charges, civil liability, and internal discipline from the police department. The U.S. Department of Justice investigates complaints against police officers. If you want criminal charges filed against an officer, you should start by contacting the FBI. If you want to file a lawsuit against a police officer, you should contact a civil rights lawyer and file a complaint with the Department of Justice.
If the Department of Justice decides to pursue criminal charges against the officer, it will charge the officer individually. Consequences for the officer can include fines and imprisonment.
If the Department of Justice decides to pursue a civil case, it can file a lawsuit alleging a pattern of misconduct by the police department. Consequences can include changes to the department’s policies to end the pattern of misconduct.
In cases involving the Civil Rights Act of 1964 or the Office of Justice Programs statute, the Department of Justice can force the department to change its policies. You may also have the right to file a lawsuit individually. You can also file suit under Title 42 Section 1983 of the U.S. Code.
You may be able to sue for punitive damages if you can demonstrate that the police acted with malice or reckless indifference. However, this is a higher standard of proof than simply proving an excessive force claim.
Police Misconduct
Unfortunately, officers accused of misconduct enjoy considerable protection under Missouri law. Missouri’s “law enforcement bill of rights” guarantees certain protections for any officer accused of police misconduct, including:
- Written 24-hour notice before any interrogation
- The right to view an affidavit identifying the person making the complaint
- The right to view any relevant video or audio
The public is not allowed access to police misconduct files in Missouri.
What Is Qualified Immunity?
Police officers also enjoy qualified immunity for their acts while on duty. According to the Congressional Research Service, qualified immunity protects officers from civil liability except in cases where they violate an established civil right.
Under Missouri law, an officer can only be found liable in a civil case if their actions displayed “willful and wanton misconduct or gross negligence.” To win a lawsuit for excessive force, you would need to demonstrate that the officer failed to show the most basic concern for your well-being.
In practice, qualified immunity often protects officers in Section 1983 cases. However, qualified immunity doesn’t always protect police officers from the consequences of their actions. According to National Public Radio, Federal courts ruled that qualified immunity did not apply in two major cases in 2021.
The police have many advantages in any lawsuit for excessive force. However, a skilled and experienced civil rights lawyer can often overcome these advantages by gathering the evidence needed to show that your civil rights were violated and that the officer did, in fact, act with gross negligence or wanton misconduct.
Protecting Your Rights
How can you protect your rights when you are stopped by the police? There are some things you should do in any interaction with law enforcement and other things you should not do. However, if the police decide to physically attack you, then your best course of action is to wait it out, don’t resist, and file a lawsuit later. It’s never a good idea to resist arrest.
How Can You Protect Yourself If You Are Confronted by Police Officers Who May Be Using Excessive Force?
If you are confronted by police officers using excessive force, you must:
- Protect yourself from injury
- Protect yourself from criminal charges
If you try to resist physically, you may be charged with resisting arrest or assaulting a police officer. At the same time, you don’t want to be physically hurt by an officer using excessive force. This is a difficult situation because you cannot defend yourself without raising your risk of both physical injury and criminal charges.
Some people believe that they have the legal right to self-defense when assaulted by an officer. This is a situation in which your legal rights are not the only consideration. You may hypothetically have the right to defend yourself against assault even if your attacker is a police officer, but the reality is that you would almost certainly face serious criminal charges.
According to the Washington Post, a man named Ray Rosas was charged with three counts of attempted capital murder for shooting at police officers who had staged a no-knock raid on his house. Rosas didn’t know the armed men attacking his house were police officers. He believed them to be gang members, but he was charged and prosecuted anyway before eventually being acquitted.
You don’t want to go through all the stress and disruption of defending yourself against criminal charges after experiencing police violence. For this reason, the only thing you should be thinking about in this situation is surviving the attack while suffering minimal injuries. You can always file a lawsuit for excessive force later.
Knowing Your Rights for Future Interactions with Law Enforcement
If your goal is to stay safe, you need to not only know your legal rights but also how to interact with police officers without causing additional problems for yourself. To protect yourself both legally and physically in future interactions with law enforcement:
- Ask the officer if you are free to go.
- If the officer says yes, you have the right to leave.
- If the officer says no, ask the officer why they are stopping you.
- You have the right to remain silent when questioned by the police, so tell the officer that you want to do so.
- Tell the officers that you do not consent to a search but don’t physically resist the search.
- Don’t physically resist the police in any way.
- Don’t say or do anything disrespectful.
While you have the Constitutional right to speak to a police officer in a disrespectful way, that doesn’t mean it’s a good idea. More often than not, being disrespectful will provoke an arrest or escalate the situation where the officer may not have arrested you otherwise. If you’re dealing with a volatile or easily angered police officer, they may even use excessive force in response to disrespectful words.
Available Legal Remedies
If you’ve experienced the use of excessive force by police, legal remedies are available. You can sue the officer or officers who used excessive force on you for compensation, including money for:
- Medical expenses incurred as a result of your injuries
- Lost wages caused by having to take time off work due to injuries
- Pain and suffering, including both the physical pain of your injuries and psychological distress
- Lost enjoyment of life due to the attack
In some cases, you can also ask for punitive damages. These are awarded to punish especially heinous or intentionally malicious behavior, so they aren’t awarded in most cases.
Along with the individual officers who used excessive force against you, you may also be able to file a lawsuit against their supervisor or the municipality employing them. These lawsuits are known as “Monell claims.” In a Monell claim, your attorney would argue that an official policy led to the use of excessive force against you or that official tolerance of excessive force led the officers to feel that they could get away with behaving that way.
How an Attorney Can Help if You Have Experienced Excessive Force
Excessive force cases are especially challenging because of the extra legal protections police officers enjoy, including qualified immunity and Missouri’s “law enforcement bill of rights.” Trying to overcome these protections on your own may not be the best approach. An experienced civil rights lawyer can help by:
- Investigating the facts of your case
- Collecting police reports and video evidence
- Interviewing witnesses to the incident
- Collecting medical records to document your injuries
- Negotiating to achieve a fair resolution
- Filing a lawsuit on your behalf
- Representing you in court
Filing a Police Complaint
If you want to file a lawsuit for excessive force, you should first file a complaint with the police department. For instance, the Kansas City, Missouri, Police Department has an Office of Community Complaints with an online complaint report. Your complaint should document what the police officers in your case did and should demand appropriate disciplinary action from the department. You should also file a complaint with the Department of Justice.
Filing a Civil Rights Lawsuit
To file a lawsuit under Section 1983, you should first consult with an experienced civil rights attorney to review your case and confirm:
- That the officer was acting under color of law; and,
- That the officer violated your civil rights.
Having your lawyer review your case ahead of time can save you a lot of stress and disappointment you might otherwise experience if you file the lawsuit on your own.
Understanding Statutes of Limitations
The Missouri statute of limitations requires you to file a lawsuit in a personal injury case within five years. According to Prison Legal News, the Eighth Circuit Court of Appeals has ruled that this standard applies to cases under Section 1983. This means you shouldn’t wait too long before filing a lawsuit under Section 1983, or the court may throw out your case for being filed after the statutory period expired.
Contact Our Southern Missouri Civil Rights Attorney Today
If you’ve been hurt by police officers using excessive force, you deserve justice. The police are responsible for keeping society safe from violent crime. They should not be able to get away with using excessive force on citizens. Hold officers accountable for their actions on the job by contacting a Southern Missouri civil rights attorney right away to handle your case.
Excessive force cases are not easy to win, but that only makes it more essential to pick your lawyer carefully. When the police have the advantage of qualified immunity, you need an attorney experienced with this type of case. Don’t take on all the stress and complexity of a lawsuit yourself. An excellent lawyer familiar with civil rights cases like yours can remove a lot of the stress from suing a police officer or police department.
Privette Law Office is a law firm based in Willow Springs that serves all of Southern Missouri. Attorneys Zane A. Privette and Bailey Privette are dedicated to serving their community with dignity and compassion. Get in touch with us to discuss your excessive force case. We’ll listen with empathy and let you know our professional opinion about your case. Contact Privette Law Office today for a free consultation.
