For the last several years, claims of physical abuse and shootings committed by police officers have been featured prominently in the news. We hear it referred to by many different names, including police brutality, excessive force, wrongful death, and violations of Constitutional rights. We also hear that individuals or their family members have filed civil lawsuits against cities or other municipalities, and read about settlements and jury verdicts.
To the average person on the street, it seems simple; if you beat or shoot someone who is not a threat to you, you should be responsible for the damage you caused. Or even more simply, that person just did something awful and somebody ought to sue them. Unfortunately, the process of obtaining civil liability for police abuse is a far more complex process. To understand why, we need to look to the nuts and bolts of how our Constitutional rights are protected.
In 1789, in order to achieve ratification by the states of the United States Constitution, ten amendments were made to that document. These first ten Amendments are usually known as the bill of rights, and are frequently referenced by their numbers. The First Amendment, for example, protects the right to free speech.
A citizens’ right to be free of police abuse is found in the Fourth Amendment, which forbids “unreasonable searches and seizures.” In addition to preventing the search of your house and the seizure of your belongings, this Amendment protects your person – your body – from unreasonable seizure. When a police officer arrests you or uses force against you, this is considered to be a seizure of your person.
Not all seizures of your person, however, are unconstitutional. Obviously, police officers arrest, handcuff, and jail criminal suspects all of the time without violating the Fourth Amendment. Whether or not there has been a Constitutional violation hinges on whether or not the seizure of someone’s person was unreasonable.
What is unreasonable is basically a matter of proportionality. If you are an armed robbery suspect fleeing the police, tackling you to the ground and forcing you into handcuffs is probably not unreasonable. Hitting an unresisting shoplifting suspect in the head with a flashlight or using a taser on a handcuffed suspect is. If you are shooting a gun at people, the use of deadly force against you is probably not unreasonable. Shooting an unarmed person in the back is.
Reasonableness is not evaluated with the benefit of hindsight. In the 1989 case Graham v. Connor, the Supreme Court set forth that reasonableness is evaluated from the perspective of a reasonable officer on the scene. That is, would a reasonable officer have thought that a particular arrest or use of use of force was necessary under the circumstances?
For example, we often hear about scenarios in which police shoot a suspect because they think that suspect has a gun or other weapon, when in actuality they do not. Under these circumstances, the officer is not necessarily liable for damages. Instead, we look to whether a reasonable officer – not necessarily the particular officer that shot the suspect – would have thought that the suspect was armed and intending the officer harm in real time.
This explains your rights under the Fourth Amendment, but the analysis does not end here. While you can use the Fourth Amendment defensively to fight off a criminal charge based on illegally seized evidence, at the time the Bill of Rights was ratified it not contain a mechanism to enforce it offensively such as allowing for a civil lawsuit. Although you theoretically had a right, there is no legal remedy for a violation of that right. A law without a remedy is, of course, nothing but a suggestion.
This changed in 1871. In the post-Civil War period known as the Reconstruction Era, former Confederate states were refusing to give former slaves their Constitutionally protected right to vote. In response, Congress passed the Second Enforcement Act, also known as the Ku Klux Klan Act. This Act imposed criminal and civil remedies for the deprivation of Constitutional Rights. The civil provisions, codified at 42 U.S.C. § 1983, states as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
Or put more simply, if a state actor violate any of my Constitutional Rights I can sue you for the damages you caused. For our purposes here, if the police uses unreasonable force and violates my 4th Amendment Rights I can bring a lawsuit against them in Federal Court.
This is just the analysis under Federal law. If you have been a victim of police abuse it is possible that you may also be able to sue an officer under the laws of your state. That is, depriving an individual of their constitutional rights by pepper spraying them may also constitute assault and battery under state law. These laws can vary from state to state. Although the law can be complex, a qualified attorney will be able to guide you through it. If police conduct is outrageous, there is a high probability that it is unconstitutional as well.
Ed Forman is a partner with the law firm Marshall Forman & Schlein LLC. He represents individuals in a wide range of civil rights and employment issues.
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