Excessive Force

The constitutional limit on how much force police may use in a stop, an arrest or a search - judged by what a reasonable officer would have done in the moment, and the reason body-camera footage decides more of these cases than testimony does.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of Civil Rights law firms.

What it means

A claim that a police officer used excessive force is, for a person being stopped, arrested or searched, a Fourth Amendment claim: the Constitution forbids unreasonable seizures, and force beyond what the situation called for makes the seizure unreasonable. The standard is objective reasonableness, judged from the perspective of a reasonable officer on the scene rather than with hindsight, weighing the severity of the suspected offense, whether the person posed an immediate threat to the officer or others, and whether they were actively resisting or trying to flee. The officer's intentions - good or bad - are not the question; the question is whether the force was proportionate to what a reasonable officer would have perceived.

Deadly force has its own rule: an officer may not shoot a fleeing suspect merely to prevent escape, and may use deadly force only where there is probable cause to believe the person poses a significant threat of death or serious injury to the officer or others. A person already in custody after conviction is protected instead by the Eighth Amendment's ban on cruel and unusual punishment, where the question is whether force was applied in a good-faith effort to maintain order or maliciously to cause harm; a pretrial detainee is protected by the Fourteenth Amendment under an objective standard similar to the Fourth. Which amendment applies depends on where in the process the person was, and it changes what has to be proved.

The claim is brought under the federal civil-rights statute against the officer personally and, where an official policy, custom or failure to train caused the violation, against the city or county; the state itself cannot be sued for damages in federal court. Qualified immunity is the defense that decides most of these cases: the officer is protected unless the right violated was clearly established in the specific circumstances, which usually means a prior decision with closely similar facts. State-law assault and battery claims against the officer and the employer proceed alongside, subject to the state's tort claims act and its notice rules.

Where this comes from

When people hire a lawyer for this

The evidence is on a retention clock - body-worn and dash-camera footage, dispatch audio, cell-phone video from bystanders, and the medical record of the injuries - and a lawyer's preservation letter to the agency within days is often the difference between a case and an allegation. A person who was also charged should not give a statement about the incident, to the police or to an internal-affairs investigator, before the criminal case is resolved or a lawyer has advised on it; the civil claim can wait, the Fifth Amendment problem cannot be undone.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Entries on the same subject:

• False Arrest and Malicious ProsecutionThe claims available to a person detained without probable cause or prosecuted without it - the state torts, their constitutional counterparts, and the favorable-termination rule that decides when a malicious-prosecution claim can be brought at all.
• Prisoners' Rights and the Prison Litigation Reform ActThe constitutional protections that survive incarceration - against cruel and unusual conditions, deliberate indifference to medical needs, and punishment without process - and the federal statute that makes a prisoner exhaust the prison's own grievance system before any of them can be enforced in court.
• Section 1983 Civil Rights ClaimThe federal statute allowing someone to sue a state or local official personally for violating their constitutional rights.

Other entries in the same area of law, each written from the same primary sources.

• ADA Public Accommodations (Title III)The part of the Americans with Disabilities Act that applies to businesses open to the public - shops, restaurants, hotels, clinics, theaters, and in many courts their websites - requiring access, policy changes and communication aids, with the cost limits that shape what can be demanded.
• Disparate ImpactDiscrimination without a discriminatory intent - a neutral rule, test or practice that falls much harder on a protected group and cannot be justified by business necessity - and the statutes under which that theory is and is not available.
• Filing a Discrimination Charge (EEOC)The administrative step that must come before almost any federal employment-discrimination lawsuit - a charge filed with the Equal Employment Opportunity Commission or a state agency within a short statutory window, followed by a right-to-sue letter that starts the next clock.
• Housing Discrimination (Fair Housing Act)The federal law making it unlawful to refuse housing, or set different terms, because of who someone is.
• Reasonable AccommodationA change to a job, workplace or housing rule that lets a person with a disability participate equally - required unless it imposes undue hardship.
• Religious Freedom (RFRA and RLUIPA)The federal statutes that require government to justify any substantial burden on religious exercise by a compelling interest pursued in the least restrictive way - stronger than the constitutional rule, and the basis of most modern religious-liberty claims by prisoners, congregations and employers.
• Retaliation for Protected ActivityThe separate legal wrong of punishing a person for complaining about discrimination, reporting a violation, taking protected leave or helping in an investigation - a claim that often succeeds where the underlying complaint would not.

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