What legal rights do you have if the police are rough with you?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Police are authorized to use force as necessary to stop and detain a suspect,[i] but if they use excessive force beyond what is needed to control the suspect, they can be found guilty of assault and possibly violating the suspect’s civil rights.[ii] If this happens to you, you can file a complaint with the Department of Justice.

There is not one specific law that declares how much force can be used because the circumstances in which police encounter suspects are so variable. The United Stated Department of Justice has a compilation of definitions about how much police force is permissible.[iii] It quotes the U.S. Commission on Civil Rights saying, “in diffusing situations, apprehending alleged criminals, and protecting themselves and others, officers are legally entitled to use appropriate means, including force.” It also quotes a Bureau of Justice Statistics statement that “the legal test of excessive force…is whether the police officer reasonably believed that such force was necessary to accomplish a legitimate police purpose.” The Department of Justice will also accept and investigate complaints of police misconduct.[iv]

The police officer’s determination about how much force to use is based mainly on the suspect’s behavior.   Sometimes, mentally ill people behave in ways that demonstrate hostility and dangerous unpredicatbility to the police.  Homeless advocates seeking less forceful police handling of mentally ill homeless witnesses, arrestees, and prospective arrestees should read the Council of State Governments Justice Center’s March 2010 report putting forth data and ideas about police interactions with the mentally ill.  The report contains research results and also research questions and policy recommendations for police departments to follow.

Many communities have created citizen police oversight programs that have ordinary local citizens collecting and investigating claims of police misconduct. Four models of programs have been identified:

1. those in which citizen review boards accept and investigate reports from the public
2. those in which the police department takes the complaints and then passes them along to the citizen review committee for further evaluation
3. systems in which the citizen review is only available as an appeal process after the police department has already handled the situation in its own way and
4. those in which complaints are filed with and handled by police departments and then an independent auditor reports to the public about the incidents and how they were handled.[v]

These programs exist with the hope of resolving problems more efficiently than would be possible through litigation. Efficiency means not only rectifying a particular dispute as soon as possible, but also quickly fixing the problem that led to the complaint against an officer. Sometimes the underlying problem is a stressed or violent officer and sometimes the underlying problem is stressed or uncooperative citizens. When the officer is found to be the cause of the problem, his department can retrain, reassign, or otherwise work with him to prevent future incidents that would be similar. When the problem arises from perceptions or behaviors by members of the public, the police department or another unit of the local government can implement a community education program to help avoid recurrences of that kind of problem.

The report that identified the four types of citizen involvement programs also found that victims of harsh police treatment feel validated when citizen review agrees with them and that the victims appreciate that their assistance in fixing a community problem has been valued.[vi]  Additionally, the report notes that police departments and local governments like to solve police misconduct issues using citizen involvement because it “improves their relationship and image with the community”[vii]  and helps them know, earlier than they would otherwise know, how and when officers are getting rough with people which not only stops problems sooner, it also helps them avoid getting sued.[viii]

When somebody does decide to sue the police for using excessive force, the first problem to overcome is the vague notion of how much police can do to physically restrain a suspect. Without a clear legal standard to compare against, plaintiffs have a hard time asserting exactly what was violated. The defending police department can respond by saying that there is no legal basis for the allegation. The next challenge in making a police abuse case is finding a way around sovereign or qualified immunity statutes which protect the government and public employees from being held liable for intentional or negligent harm they might cause while doing their jobs, unless they violate exact statutes or constitutional provisions.[ix]

Generally, in police excessive force cases, instead of suing with a personal injury claim, such as battery or infliction of emotional distress, plaintiffs sue in federal court using a Constitutional law claim. The claim is that an officer who hurts a suspect has committed an illegal seizure under the Fourth Amendment.[x]  Usually, people think of seizure as a situation when a possession has been taken away. But, in these police excessive force claims, it is dignity and health that have been taken away. The courts have specifically stated that “Where an excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right to be secure in their persons against unreasonable seizures of the person.”[xi]

When deciding whether the force was excessive, the courts look at three things:

1. how severe the crime was (because the police might need to be more forceful with a violent criminal)
2. whether the suspect is likely to still be dangerous (for example if it is expected that the suspect still has a weapon or if the suspect is loud or aggressive when the police arrive) and
3. whether the suspect is trying to fight with or get away from the police.[xii]

Although torts claims, such as battery, can result in financial awards from the court, constitutional claims can only result in changed behavior. So, in addition to claiming that rough police conduct violates their Fourth Amendment rights, victims also claim that the police conduct violated their civil rights.[xiii]  The federal civil rights statute is Section 1983 within Title 42 of the United States Code.[xiv]  Most people just call it “section 1983.” Under that statute, victims of excessive police force can collect reimbursement for their out-of-pocket costs including medical bills and lost wages and they can also collect punitive damages to make the police department suffer financial punishment for having an officer who hurt somebody.[xv]

The final major challenge in proving that police used excessive force is collecting the necessary evidence. To prove police brutality against one person, the ordinary array of proof such as witness testimony, medically documented physical injuries, and analysis of the officer’s weapons would be used to make the case. But, in class action lawsuits against police departments, it is necessary to prove patterns of police misconduct by showing who tends to get rough and when that has happened in the past. The ACLU recommends that litigants investigate how often police on that force fire their guns or use their clubs and that litigants then analyze that data to see whether particular officers use weapons more than others. They also suggest looking at the age and race of the officers who use their weapons the most compared to the races and other characteristics of their victims.[xvi]

[i] Model Penal Code §3.07(1) Use of Force Justifiable to Effect an Arrest, §3.07(2) Limitations on Use of Force §3.07(3) Use of Force to Prevent Escape from Custody §3.07(5) Use of Force to Prevent Suicide or the Commission of a Crime.[ii] Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981). See generally, Linda J. Collier and Deborah D. Rosenbloom, Arrest, 5 Am.Jur.2d. §145 (2006).

[iii] U.S. Dept. of Justice, Federal Bureau of Investigation, National Use of Force Data is available at https://ucr.fbi.gov/use-of-force.

[iv] The U.S. Department of Justice has a full explanation of the federal laws against police misconduct and instructions for filing a complaint. See United States Department of Justice, Addressing Police Misconduct, https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice.

[v] U.S. Dept. of Justice, Civilian Oversight of Law Enforcement: A Review of the Strengths and Weaknesses of Various Models is available at https://www.ojpdiagnosticcenter.org/sites/default/files/NACOLE_Civilian_Oversight.pdf.

[vi] Id. at p.10.

[vii] Id. at p.11.

[viii] Id.

[ix] There are thousands of state and federal court cases about qualified immunity. Some of the prominent U.S. Supreme Court cases include Saucier v. Katz, 533, U.S. 94; 121 S. Ct. (2001) (A police officer who quickly pushed a political demonstrator into a police van was entitled to qualified immunity because his need to act speedily to protect the Vice President from this uncooperative and potentially dangerous demonstrator was reasonable.) Harlow v. Fitzgerald, 457 U.S. 800; 102 S.Ct. 2727 (1982). (Citizens’ rights to collect damages must be weighed against the rights of public officials who constantly bear the risky responsibilities of relying on their discretion in performing public duties.) Wilson v. Lane, 526 U.S. 603; 119 S.Ct. 1692 (1999). (A defense of qualified immunity from having to pay damages is available to public officials who have not violated a particular law and were simply trying to do their work. So, when there was not established caselaw declaring that bringing news reporters to an arrest would violate the Fourth Amendment, police were granted qualified immunity from having to pay damages to the family whose home was filmed during the arrest.)

[x] U.S. Constitution Amendment IV. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

[xi] Graham v. Connor, 490 U.S. 386, 394 (1989). See also Jones v. Philadelphia, 890 A.2d 1188 (Pa. Comm. 2006) and Sacramento v. Lewis, 523 U.S. 833, 843; 118 S.Ct. 1708, 1715 (1998).

[xii] Graham v. Connor at 396; St. John v. Hickey, 411 F.3d 762,771 (6th Cir., 2005); Payne v. Pauley 337 F.3d 767, 778 (7th. Cir. 2003)

[xiii] Glenda K. Harnud, et al, Civil Rights: Excessive Use of Force 14 CJS §140

[xiv] 42 U.S.C. §1983. “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…”

[xv] Wagner v. Memphis, 971 F.Supp. 308 (W.D Tenn. 1997); Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625 (1983); Newport v. Fact Concerts, 453 U.S. 257, 101 S. Ct. 2748 (1981).

[xvi] The ACLU’s Fighting Police Abuse: Community Action Manual is available for free online at http://www.aclu.org/police/gen/14614pub19971201.html. The section titled “Gather the Facts” has the suggestions mentioned here.

3 Replies to “What legal rights do you have if the police are rough with you?”

  1. September 9, 2008 @ 5:46 pm · Edit

    The lengthy and scholarly pages contained within this website about civil rights and the homeless may be legally accurate, but police interactions with the homeless are far different reality. I have experience working directly with the street homeless as well as years of association with the ACLU. The homeless are among the most vulnerable of our society; they have no power and few personal advocates. The police are often under direction from their mayor’s office, or superiors to make sweeps of known homeless gathering places. In the moments of fear and confusion the homeless victim has little negotiating power with the police; demands for civil rights are treated as ridiculous rantings; “I’ll call my lawyer” only amuses the police who may respond with physical abuse. While the legalities are interesting, they are not the realities. Interactions with police are not opportunities for negotiation on the part of the homeless. Instead, the homeless need to cooperate as a matter of self preservation, forfeiting their civil rights in order to not be further victimized in that situation. Educating both the police and the public as to why people are homeless and encouraging compassion and understanding are more effective strategies than quoting laws and legal cases.

  2. I would like to reply to the comment from the Homeless Advocate. I am a woman, now permanently physically disabled due to a severe auto accident. Before this, I worked as a Paramedic for 12 years. When I had to file for permanent disability, it was 7 months after I also suffered the death of my 5 month old son from Sudden Infant Death Syndrome. 2 weeks after his funeral, my husband left suddenly, and left me w/ the whole cost of the funeral. So that year was a traumatic time for me. Being I was left in a 3 bedroom home with no money to pay the rent, etc., I had to move home temporarily with my parents who have always been emotionally abusive.[They didn’t come to their grandson’s funeral either]. It was the only place I could stay at the time. Within 2 weeks, the abuse started again, & I was thrown out of the family home to the streets with my registered service dog & my electric wheelchair. Just providing some background info because most people believe that all homeless are either drug/alcohol addicts, uneducated, or severely mentally ill. This wasn’t the case w/me. So, one morning i decided to go to Denny’s for some breakfast. By law, service dogs are allowed with I.D.. While eating my food w/ my dog laying under the booth, the Denny’s manager told me to leave. I was not carrying anything other than a purse w/me, so I didn’t “look” homeless. I asked the manager why he told me this and he said that “dogs weren’t allowed” inside. As i was showing him the service dog’s tag & I.D., he said he was going to call the Sheriff’s Dept.[?].I decided to just leave to avoid the harassment. I was about 1/8th of a mile away from Denny’s by then when 2 Sheriff’s cars pulled up on me. I told them what transpired at Denny’s & gave them my I.D. for them to run. Nothing came up on me. Then the cops started yelling at me, interrogating me, & they threatened to arrest me[?] and said they will take my service dog to the pound as well, though there was no legal reason for them to do so. It was very humiliating, as there were other people standing around watching this. It’s true what “Homeless Advocate” said above in that at the time, I had no support or protection for myself. They demanded to look through my purse [illegal search], but I was frightened at this point. I let them look through my purse. I don’t know if they were mad because they could not find anything on me or what. They even harassed me over my prescription medicine in my purse I take for seizures, saying,”what kind of drugs are you selling?” This was a blatant violation of my civil rights. And, given my situation, I had no money or access to legal help. In Sacramento, there are no organized programs for the homeless re; situations like this. I told the cops they have no legal reason to hold me & that I was going to leave in my wheelchair. I wanted to tell my story so others out there know what happens to people who the police know have no way of protecting themselves. C’mon, a disabled woman in an electric wheelchair w/ a service dog? I had no prior record, no drug/alcohol use, was grieving the loss of my infant son, and was homeless due to abusive family members. No exaggerating, this did happen. Even though I can no longer work as a Paramedic, or at all, & Disability does throw one into poverty, I will always live with the trauma that was induced on me that morning. I was afraid to file a complaint for fear of more severe harassment, especially since I would be ‘easy’ to find being homeless. Today, I have an apartment, though I’m living on a wing and a prayer off $850.00 a month. The police/sheriffs find people of ALL races/genders as an easy target if, due to living in poverty for whatever reason, they do not have any recourse. So please don’t paint all the homeless with the same brush. During that year I met people w/ Bachelors Degrees, & Master’s too. And many war Veterans.Question; Is the value of my life and civil rights based on my socioeconomic status? Apparently yes.

  3. Feb5 I went to work,in 5 days I was Sceduled to appear in court about my continued case that I had55 + hrs into community service, and was working5 days. During my dinnner hour I got stopped in a private lot and ended up in jail 10 days. Had I been allowed my phone calls The following might have been avoided. I left jail 125.00 shy of rent as they paid 2 “fines” without authorization. The dident electronically record my continuence, when I got out of jail i HAD NO JOB, NO CAR, AND NO PLACE TO LIVE, AND LOST ALL MY PERSONAL PHOTOS ETC IN STORAGE!i AM SO MAD AND HAVE WHATEVER i CAN CARRY ON MY BIKE TO MY NAME. wHAT CAN i DO? i WAS PHYCICALLY ABUSED IN JAIL AS WELL.

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