This has been a difficult spring and summer, with shocking news coming over the airwaves on a regular basis. There has been a lot of protest, debate and reaction on the topic of excessive force. However, it is important to remember that although excessive force cases do occur, the majority of interactions between police and the public are peaceful. Still, it is important to understand the law so that you can protect yourself if the situation arises.

The term “excessive force” refers to incidents where government officials (who are legally authorized to use force if necessary) exceed the amount of force necessary – whether to protect themselves or others, or to deescalate a situation. When excessive force is utilized in a law enforcement setting, it is often referred to as police brutality.

What Guarantees the Rights of the Citizens? The Fourth Amendment to the Constitution protects citizens from excessive force as it applies to reasonable search and seizure. The Eighth Amendment upholds the prohibition on cruel and unusual punishment.

What is Unreasonable Force?

The Supreme Court has determined that deadly force can only be used during an arrest if it is:

Necessary to prevent escape; and
There is probable cause that the suspect poses a significant threat of death or serious physical injury to the officer or others.

The Supreme Court has asserted that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat.” The degree of force or coercion must be proportional to the threat If there is an escalation of force, it must be in response to an escalating threat. Typically, officers are expected to follow these basic guidelines.

Physical presence: Using the mere presence of law enforcement to diffuse a situation.
Verbalization: Utilizing verbal statements, ranging from requests to direct orders.
Empty-Hand Control: Employing bodily force through grabbing, holding, punching or kicking.
Less Lethal Methods: Using non-lethal weapons such as batons, chemical sprays, tasers, or K9 units.
Lethal Force: Using lethal weapons such as firearms.

When a suspect is adequately restrained or the situation has de-escalated, the officer can no longer increase the use of force disproportionately.

Are You a Victim of Excessive Force?

Excessive force violates your constitutional rights. The remedy is to file a civil rights complaint for monetary or injunctive relief . Complaints may also be filed with the U.S. Department of Justice, who has discretion as to if they want to pursue your case or not.

Courts consider all of the relevant circumstances when determining whether the actions of the law enforcement officer were “objectively reasonable.” Judges analyze factors through the perspective of what is “objectively reasonable. These factors include:

The severity of the underlying crime or circumstances;
The existence of an imminent threat to the safety of the officer or others
A determination if the individual was resisting arrest or fleeing the scene
Whether alternatives were available
Whether sufficient warnings were communicated before the use of force

What is Qualified Immunity?

The doctrine of qualified immunity permits government officials performing discretionary functions immunity from civil suits. The exception is if the plaintiff proves that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known”. Qualified immunity is a form of sovereign immunity, which is less stringent than absolute immunity but is intended to protect officers who make incorrect judgement but their actions were reasonable given the circumstances. Qualified immunity applies only to government officials in civil litigation, and does not protect the government itself from suits arising from officials’ actions.

If you have questions about your rights under the law, call the Sarasota attorneys at Probinsky & Cole.