Understanding Excessive Force and Your Rights When Interacting with Law Enforcement

While many law enforcement officers throughout the country perform their dangerous jobs with dignity, civility, and respect for those in their communities and in compliance with both state and federal laws, there are some police officers who use excessive force in the course as their job. Police misconduct occurs more often than it should, and victims whose rights have been violated by law enforcement have a right to justice. Understanding your legal rights when interacting with law enforcement is your first step in ensuring they remain protected.

Understanding “Excessive Force”

What is Excessive Force? The term excessive force specifically refers to situations where law enforcement officers exceed the amount of force necessary against another person in an attempt to defuse a situation or to protect others or themselves from danger or harm. When police officers use excessive force it is referred to as police brutality. Every person in the United States has a constitutional right to be protected from the excessive force used by law enforcement as articulated in the reasonable search and seizure requirement of the Fourth Amendment, and the prohibition of cruel and unusual punishment in the Eighth Amendment in the Constitution of the United States of America.

Additionally, deadly force should be used as a last resort, but it can only be used by law enforcement when a person is attempting to flee the scene of a crime if there’s a probable cause to believe that the suspect fleeing poses an immediate andsubstantial risk of serious physical injury or death to the police officer or others in the community. It is important to note that excessive force and police brutality do not only apply to circumstances where deadly force is used, but is also applicable where an unreasonable and unwarranted excessive use of force is used that result in injuries to victims, such as baton blows, rubber bullets, punches and strikes, chokeholds or othe forms of asphyxiation, or excessively tight handcuffs.

Use of Force Spectrum

The United States Supreme Court has recognized that in some circumstances the right of a police officer to make an arrest does carry with it some degree physical coercion or threat. However, there are gradual methods that police officers should use to diffuse the situation. Police officers are trained to deescalate conflicts but, at times, engage in poor and bullying tactics that serve to unnecessarily escalate the situation .

• Physical presence: Simply using the presence of a law enforcement officer in the area.
• Verbalization: Using non-threatening verbal statements to issue orders or requests.
• Empty-hand control: Using physical bodily Force through restraint, holding, punches, or kicks without any weapons.
• Less lethal force: Using weapons such as police dogs, chemical sprays, tasers, rubber bullets, or batons.
• Lethal force: Using any type of lethal weapon such as a firearm.

In order to ensure that every person’s rights are protected, law enforcement is never allowed to use any physical force greater than what is needed to either de-escalate a situation or successfully restrain a suspect.

What To Do When Your Rights Have Been Violated

First, you should never attempt to run from the police or act aggressively in any way, even if your rights are being violated. Unfortunately, what you do in these situations can be used against you as a justification for excessive force even if the police officer was the one who instigated the use of force greater than necessary.  While you have the right to remain silent, you should also obey reasonable police commands.  Good questions to ask are, “am I being detained?”  If you are not being detained, you are free to go.  If you are being detained, you can request to speak with a lawyer.

Police Misconduct Provision

Police misconduct provision found in 34 USC Section 12601, makes it illegal for any law enforcement officers to continually engage in a pattern of conduct that deprives persons of constitutional rights. some of the types of activities that are involved in police misconduct can include the use of excessive force, discriminatory harassment, coercive sexual contact, false arrest, unlawful stops, searches, or arrests. In many cases, these incidence using excessive force are not isolated incidents and actually constitute a pattern of unlawful conduct from a law enforcement agency. The remedy under this particular law does not provide for monetary relief, however, it does provide for injunctive relief as an attempt to change the policies and procedures that gave rise and resulted in the police misconduct.

Rights Under Federal Law

If a police officer used excessive force against you, your constitutional rights have been violated. You have the legal right to file a civil rights complaint for either injunctive relief or monetary relief under 42 USC Section 1983 of the United States Code. Additionally, you have the legal right to file a complaint with the United States Department of Justice. Ultimately, if you have sufficient facts for the Judge to deny summary judgment, a jurywill look at the facts and circumstances regarding your case and to the totality of the circumstances to make a decision regarding whether the actions of the police officer would be considered “objectively reasonable.”

RIGHTS UNDER CALIFORNIA LAW

Police Officers who engage in excessive force can be found liable for the tort of battery, negligence or violation of Civil Code Section 52.1.

Civil Code section 52.1, subdivision (b) authorizes a civil action for damages:

“If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state …”

The key is showing the Officers engaged in threats, intimidation and coercion and, oftentimes, police violence is sufficient to prove it.   

In any situation, if you can, get contact information of witnesses, and check for video in the surrounding area. Make a Complaint, if possible.  

The decision regarding what is considered objectively reasonable is a discretionary one. The jury is instructed to consider certain factors such as the severity of the crime in question, whether other officers or the community would have been put in harm’s way if the action did not occur, Whether the individual was attempting to flee the scene of the crime or actively resisting arrest in any way, whether there were another alternative less forceful options available to the police officer, and whether a simple warning would have been sufficient. If you suffered injuries caused by excessive force used by a police officer, you will need a civil rights Attorney to vindicate your civil rights.

Contact an Experienced Civil Rights Attorney

If you suffered any injuries, or feel that your constitutional or legal rights were infringed upon while interacting with law enforcement as a result of their use of excessive force, you may have the right to file a claim. Every case will be dependents on the facts and circumstances surrounding the incident, and you will need a strong defense attorney in order to ensure that your legal and constitutional rights are protected. Contact an experienced civil rights attorney at V. James DeSimone Law at 310-693-5561 to have strong legal representation.

V. James DeSimone

Attorney V. James DeSimone is a 35+ year experienced civil rights & employment lawyer in Southern California. Jim is a Super Lawyer, Rated “Superb” by Avvo, and is a US News & World Report Best Law Firm in California.