The term “excessive force,” also known as police brutality, refers to a form of police misconduct. In any contact, including making an arrest, or protecting themselves or others, officers are only allowed to use a reasonably necessary amount of force. This rule applies to any situation where an officer uses any level of force: from deadly force, like shooting, chokeholds, and restraint or positional asphyxia, to less-lethal force that can still lead to serious injuries or death, such as use of rubber or plastic projectiles, flash-bang grenades, tasers, police dogs, baton blows, physical fighting, and other uses of force.
Any use of force that exceeds what a law reasonable law enforcement officer should know is objectively reasonable and necessary under the circ*mstances can be considered a use of excessive force.
Grounds for Liability
The Fourth Amendment to the United States Constitution protects every person in this country, regardless of citizenship or status, from unreasonable searches and seizures by law enforcement officers. Any use of force by a law enforcement officer must be objectively reasonable and necessary under the circ*mstances. An officer’s use of deadly force generally requires such force to be necessary in the face of an immediate threat of death or serious injury to the officer or others.
The level of force officers are trained and permitted to use, depending on the circ*mstances, can range from:
- Physical presence;
- Verbalization;
- Empty-hand control;
- Less-lethal methods and control devices; to
- Lethal force.
The level of force that officers are permitted to use in any given situation usually depends on the circ*mstances, including:
- Whether the officer faces an immediate threat;
- The severity of the crime at issue;
- Whether the person is attempting to flee or resist arrest;
- Whether the officer had reasonable alternatives to force used;
- Before deadly force is used, whether a warning was feasible and was given.
Remedies for Excessive Force
A civil rights lawsuit can be filed in state of federal court seeking damages (money) under 42 U.S.C. Section 1983 based on a law enforcement officer’s violation of the Fourth Amendment. A civil rights lawsuit brought by an individual may also include state law claims such as negligence, battery, and violations of state law such as the Tom Bane Civil Rights Act in California. A civil rights lawsuit brought by an individual cannot require the officer to be punished or charged with a crime – only a prosecutor can do that.
Statute of Limitations and Burden of Proof
The burden of proof in civil cases falls on the plaintiff, who has to prove his or her claims in court by a “preponderance of the evidence” (meaning “more likely than not” or a “slight tilt in the scales of justice”).
The statute of limitations (deadline) to file a federal claim based on an officer’s use of excessive force varies from state to state, and generally is the same as each state’s statute of limitations to file a personal injury or wrongful death claim. In California, federal civil rights claims generally must be filed within two years from the incident. There can be different statutes of limitation to file state law claims. For example, in California, a person must file a tort claim for damages with the public entity that employed the officer within six months of the incident before filing a lawsuit with state law claims in court. Exceptions apply to statutes of limitations for both federal and state law claims – for example when minors are involved or for other reasons – so it is very important to consult with an experienced civil rights attorney soon after an excessive force incident to ensure that all deadlines are met.
A Change in the Law Against Excessive Force in California
Following a remarkably public case of brutality against an unarmed and compliant youth, the State of California decided to revise its law about when law enforcement officers are permitted to use deadly force. Now, effective January 1, 2020, California Penal Code section 835a limits an officer’s use of deadly force to situations where deadly force is “necessary,” rather than just “reasonable.”
That means that if a California officer has a reasonable alternative to the use of deadly force, then deadly force would not be necessary, nor permitted.
Contact an Excessive Force Lawyer in California
An excessive force lawyer – or “civil rights lawyer” – generally handles cases for people who were victims of this type of police misconduct if they have a viable lawsuit against the officer who violated their rights, or even against the municipality that employs the officer.
Haddad & Sherwin LLP have a long track record of winning civil rights cases withresultsthat include large settlements and verdicts for their clients, groundbreaking legal rulings, and importantreformsto prevent future harms. Haddad & Sherwin LLP handle only a unique subset of Section 1983 cases: cases where a person was killed or permanently, catastrophically injured in California by law enforcement or county jail misconduct. If you would like to consult with experienced civil rights lawyers because your loved one waskilled by police or died in a California county jail, thencontactthe attorneys at Haddad & Sherwin LLP. If your civil rights were seriously violated, butwithout death and without permanent, catastrophic injury, you could try the list of civil rights attorneyshere.
