Given our social climate today, I have been receiving inquiries from people that have been assaulted by police officers.  I want to take the time here to simplify the complexities of a federal cause of action for excessive force or more commonly known as police brutality.  Police brutality is one of the only areas of the law that involve both criminal and civil law. We won’t touch much on the criminal law aspect but focus our attention on the civil law aspect.  As a disclaimer, this is not legal advice, case law and statutes on this topic are constantly changing and one should always consult an attorney before deciding to file a lawsuit. 

Police officers are allowed to use force to subdue a person that is not complying with their requests, but there are limits.  The United States Constitution provides us with certain rights, one of those rights is the right against unreasonable search and seizure.  Also Federal Statute §42 USC 1983 provides a cause of action when a person acting under color of law deprives another of a right afforded to them by the US Constitution.  Unfortunately, we have seen too many police officers going above and beyond what’s necessary to gain control over a situation.  Being a police officer is not an easy job, but we need to hold those officers who exceed their powers and deprive citizens of their constitutional rights accountable for their illegal actions.  If we do this, we protect police officers and give the community a sense of comfort when dealing with the police. 

Laws are usually complicated, so courts break complex laws into elements needed to prove a case.  The elements needed to prove excessive force are the following, (1) whether the officer used unreasonable force against the person (2) whether the person was harmed because of that unreasonable force, and (3) whether the officer acted under the color of law.  Usually two and three are not contested and litigation will turn on the outcome of whether a plaintiff can prove element (1). 

In law, there is an objective and a subjective standard to determining whether a person is liable for their actions. For excessive force, the court will use the objective standard to determine whether an officer in the same or similar circumstance would have used that amount of force.  Simplified, this means that the court will place a clone of that officer and place that officer in the exact same situation as the actual officer and determine if that officer was following all correct protocol and procedures would the cloned officer use the same force.  There are also factors that the court uses to determine reasonableness, including but not limited to severity of the crime, whether the person posed a threat to the safety of the officer or others, whether the person was actively resisting or attempting to evade arrest by flight. 

One must also take into account that the officer has something called qualified immunity.  This is a question of law and not fact.  Simply put, a question for a judge, not a jury to decide.  Qualified Immunity acts to shield police officers from civil liability as long as their conduct does not violate clearly established statutory or constitutional rights.  What does this mean?  This means that the judge must be satisfied that by law, the officer violated a constitutional right, and that the officer should have been aware of that right at the time of the action. 

There you have it, a broad overview of how to bring an action for excessive force.  Again, this is not legal advice but a highly simplified general overview of what needs to be proven in a civil excessive force case against a police officer.  Please contact a legal professional in your area for more information. 

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