Excessive force and Section 1983 Lawyers

Federal law allows individuals to sue police officers for excessive force under 42 U.S.C. § 1983. Our civil rights attorneys have recovered millions of dollars under this law for individuals who have been unlawfully killed or injured by law enforcement. In one particularly egregious case where our client’s son was murdered by five police officers, we were able to obtain a multi-million dollar settlement and ensure that the offending officers were arrested. 

What is 42 U.S.C. § 1983?

42 U.S.C. § 1983 is a federal law allows a person to file a lawsuit in federal court against a law enforcement officer that violated his or her constitutional rights, including excessive force. This type of legal claim is often referred to as a “1983” claim or a “Section 1983” claim

What are the elements of a Section 1983 claim?

An individual who sues law enforcement for excessive force must prove the following elements to succeed under a Section 1983 claim:

1. Officer was acting under color of law. The first thing an injured person must show is that the police officer was acting under of color of law. This means that the officer was “on the job” and acting as a police officer and not as a private citizen at the time of the incident. Additionally, only county and city officers 

2. Violation of a constitutional right. The second thing that an injured person must show is that there was a violation or deprivation of a constitutional right. In excessive force cases, this will typically mean that law enforcement violated the person’s rights under the Fourth Amendment, Eighth Amendment, and Fourteenth Amendment to the U.S. Constitution. For instance, the Fourth Amendment guarantees citizens to be free from unreasonable search and seizure which includes the right to be free from the use of excessive force in the course of an arrest.

3. Causation. The injured person must also show that the officer caused the constitutional violation. 

4. Damages. The injured person must finally show that the violation damaged them somehow. This typically requires the injured person to articulate the type of damages.

Types of constitutional violations in excessive force cases

An injured person can alleged excessive force in a number of different ways. The common ways are as follows:

1. Excessive force. For someone injured while being arrested, a claim for excessive force is brought under the Fourth Amendment. For someone who is in jail and awaiting trial, an excessive force claim is typically brought under the Eighth Amendment, which prohibits cruel and unusual punishment.

2. Failure to intervene. The Constitution requires an officer to intervene if he or she witnessed a fellow officer engaging in excessive force. If the witnessing officer fails to intervene, he or she can be subject to civil liability for failing to intervene.

3. Failure to render medical aid. The Constitution also requires officers to render medical aid to someone who has an objectively serious medical need. If officers are deliberately indifferent to the individual’s medical need, they can be held liable. For instance, if officers know someone is not breathing but take no actions to save the individual, they could be liable under Section 1983 for failing to render medical aid.

4. Supervisory liability. Supervising officers can be liable for the actions of their subordinates when they instruct their subordinates to violate a constitutional right or when they know that their subordinates would act unlawfully but take no corrective actions.

What is qualified immunity?

Qualified immunity is a judicially created rule which prevents many individuals from being able to sue and recover from unlawful police conduct. Specifically, qualified immunity protects law enforcement officers who are performing discretionary duties from being held liable in civil court unless the injured person can show that the officer violated a “clearly established” right at the time of the injury.

Whether a right was “clearly established” is often the primary focus in Section 1983 cases. The phrase generally means that a court had previously ruled in another case that the officer’s actions violated the constitution. For instance, the Eleventh Circuit has held that “[a]n officer’s use of substantial force in subduing an arrestee once the arrestee has submitted to the officer and ceased any resistance or threatening behavior is excessive.” Glasscox v. City of Argo, 903 F.3d 1207, 1219 (11th Cir. 2018). If an officer were kick a person while that person is handcuffed and not moving, that would be an example of a violation of a clearly established right. 

How do I bring a 1983 claim against an officer?

A Section 1983 claim can be brought in either federal or state court. It is filed just like any other lawsuit and a copy of the complaint must be served on the offending officer or the officer’s lawyer. In many states, there may be state claims that an injured party can bring, and it is often a strategic decision as to whether to file the claim in state court or in federal court.

Can I sue the city, county, or state for an officer’s excessive force?

Individuals injured due to police misconduct cannot sue a state under Section 1983 as states are generally immune from suit. It is possible, however, to sue a city or county under Section 1983. Bringing a successful 1983 claim against a city or county, however, is often more difficult than against an individual officer. 

There are two types of “municipal liability” which can be alleged against a city or county in excessive force suits. The first is called Monell liability where the plaintiff must show that the city or county had policies or engaged in practices which were the moving force behind the constitutional violations and injuries. Typically, a city or county won’t have an official policy to violate constitutional rights. But Monell liability can be established when a plaintiff can point to a pattern of injuries that essentially constitute an unofficial policy to violate the constitutional rights of citizens. In other words, if the plaintiff was just one of many citizens who was unlawfully injured by law enforcement in the same manner, the plaintiff may be able to hold the city or county liable.

The other way to hold a city or county liable is known as Canton liability. Under Canton, a municipality can be held liable where it knew that its officers needed proper training on a subject but failed to provide adequate training to its officers. For instance, if a county completely fails to train its officers on how to use force when arresting a subject, this failure may give rise to liability under Section 1983.

Practical considerations for 1983 lawyers

The current state of the law is tilted in the favor of law enforcement. Even when a constitutional right is violated, many officers will be protected by qualified immunity. Lawyers who represent 1983 litigants should have a thorough understanding of clearly established law in their respective circuit to assess the likelihood of beating a motion to dismiss or motion for summary judgment.

Counsel for 1983 plaintiffs should also consider consulting with experts in use the of force field. The defense will likely hire one or more experts to combat allegations of excessive force, and it can advantageous to utilize an independent expert early in the process. The same is true for cases in which there are profound physical injuries or death. Having a medical doctor who can opine about the cause of injury or death can tilt the playing field back to the plaintiff’s favor.

Contact us

If you or someone you know has been injured by law enforcement, you should contact an experienced excessive force and 1983 attorney. Our 1983 attorneys have won millions of dollars for our clients who were wrongfully injured by the police. Consultations are confidential and free of charge.