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What Are “Excessive Force” Cases and Why Are They So Difficult?

By Butler Prather LLP on October 15, 2022

There is no shortage of news about excessive force being used by law enforcement officers across the country and here in the state of Georgia. Perhaps the cases most relevant on individuals’ minds are the George Floyd murder in Minneapolis and the murder of Ahmed Aubrey in Georgia. However, excessive force does not always end in death; they often result in severe injuries. Here, we want to examine what “excessive force” means as well as why these cases are difficult to prove from a personal injury standpoint.

Excessive Force Happens But Officers Aren’t Always Held Responsible

When we examine Federal Statute, 42 U.S.C.A. § 1983, we can see that civil actions for excessive force by an officer must be brought against the individual police officer and not the police department they work for. However, even if a claim is brought against an individual officer, the officers will still enjoy total protection from a lawsuit if the actions that they took did not violate clearly established constitutional or statutory rights. This has been established by the courts over time.

The idea of this seeming protection of law enforcement officers is to allow officials to carry out their duties without the fear of personal liability or litigation that could be seen as harassing. This means that in order to prevail in an excessive force claim against a police officer, the plaintiff (the person who was the victim of excessive force) must prove that the conduct of the police officer violated clearly established constitutional rights and that the police officer was aware of this at the time the violation occurred.

While this may not seem like a big deal, the reality is that the way this statute and the court cases have lined up means that the plaintiff must show that the same type of excessive force was committed previously by an officer somewhere in the country and that a court found that that officer’s conduct violated someone else’s constitutional rights. Then, the plaintiff must show that the police officer in their case knew about this other case somewhere in the United States and should have known that their actions in the current excessive force case were unconstitutional.

Under this system, there is inherent unfairness. Why? Well, in theory, the crazier the behavior of the officer, the less likely a plaintiff will be able to prove excessive force because they will likely not be able to find another case with the exact circumstances somewhere in the US. This would be a new “constitutional wrong,” and, therefore, there will not likely be a court case to point to you to say that the officer knew that their actions were wrong.

Police officers will almost always exert a qualified immunity defense to excessive force. The only thing police officers have to demonstrate in order to use the qualified immunity defense is that they were acting within the scope of their authority at the time the incident occurred. After a police officer establishes that they should fall under qualified immunity, the burden of proof will shift to the plaintiff to show that qualified immunity should not be appropriate. The only way to do so is to show that:

  1. The officer’s conduct violated constitutional rights, and
  2. The violated right was clearly established at the time of the incident

We strongly encourage any person who has been the victim of excessive force to work with a skilled personal injury or civil rights attorney as soon as possible.

Posted in: Personal Injury

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