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Police Misconduct: Understanding Excessive Force Claims

by | Jun 29, 2020 | Firm News

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The Fourth Amendment to the United States Constitution prohibits government officials from conducting unreasonable searches and seizures.  Under the Fourth Amendment, police officers are prohibited from using excessive force when arresting persons suspected of crimes.  If a police officer uses excessive force against a person, that person may bring a civil claim pursuant to 42 U.S.C. 1983 for the officer’s violation of their constitutional rights.  The person may also bring a civil suit against other officers who witnessed the excessive force but failed to intervene to stop it.

To determine whether an officer’s use of force was excessive, courts balance the nature of the force and intrusion used against the governmental interests at stake in making the arrest.  Courts also consider the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of officers or others, and whether the suspect actively resisted arrest or attempted to evade arrest by flight.  Courts have also held that a suspect’s mental illness is a factor that an officer may consider when determining what degree of force, if any, is appropriate.  However, courts will not look at an officer’s subjective purpose for employing force against an arrestee, but rather whether the force was reasonable under all the relevant circumstances. An officer will violate an arrestee’s Fourth Amendment rights when he uses greater force than reasonably necessary to make an arrest.

When determining whether an officer’s use of force was excessive, courts also recognize that police officers must often make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.  So, courts will not judge an officer’s actions with the benefit of hindsight and will instead consider only the information the officer had available to him at the time of an arrest, and not information learned afterwards.

I.  Levels of Force Used by Police Officers

In any excessive force case, it is useful to identify the exact amount of force used by the defendant police officer, because this represents the nature of governmental intrusion on the injured plaintiff’s rights.  In this respect, officers use varying degrees of force when arresting suspects, from small shoves and pushes, to more serious and harmful levels of force like tackling, punching, tasing, and using dogs to bite or restrain suspects.  In rare cases, officers may also use deadly force such as chokeholds or shooting.

Courts have held that it is clear that police officers may not shove, push, or assault innocent citizens absent any provocation.  Officers are also prohibited from using significant force on non-resisting or passively resisting suspects.

The use of deadly force where a suspect poses no immediate threat to the officer or others has also been found to be unreasonable and excessive.  When dealing with cases of deadly force, courts consider whether a reasonable officer in the circumstances would have probable cause to believe that the person killed posed an immediate threat to the safety of the officers or others.

II.  Examples of Conduct Constituting Excessive Force

The following is a sample of applications of force by police officers that courts have held to be excessive:

  • Deploying a taser in dart mode against a nonviolent misdemeanor offender in her driveway who had just been tased in dart mode, made no movement, and did not turn over when instructed to do so.  Abbott v. Sangamon County, Ill., 705 F.3d 706 (2013).

  • Applying overly tight handcuffs to an arrestee who was not threatening harm to the police officer or anyone else and was not resisting arrest or attempting to flee.  Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003).

  • Punching a non-resisting arrestee in the ribs, breaking his ribs, and forcing him into a police car.  Rambo v. Daley, 68 F.3d 203 (7th Cir. 1995).

  • Holding a gun to a nine-year-old’s head during a search of a house and threatening to pull the trigger.  McDonald by McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992).

  • Handcuffing a suspect, then kicking him twice in the back, punching him, stepping on his face, and dragging him around by his hair.  Miller v. Smith, 220 F.3d 491 (7th Cir. 2000).

  • Shooting a woman in the legs with a baton launcher when she disregarded their orders to come out of her car.  Phillips v. Community Ins. Corp., 678 F.3d 513 (7th Cir. 2012).

  • Fatally shooting an unarmed, fleeing burglary suspect.  Tennessee v. Garner, 471 U.S. 1 (1985).

III.  Qualified Immunity

The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate a clearly established statutory or constitutional right of which a reasonable officer would have been known.  In determining whether an officer is entitled to qualified immunity, court consider two factors: (1) whether the facts alleged by the plaintiff constitute a violation of a constitutional right, and (2) whether that right was clearly established at the time of the officer’s misconduct.

Although the right to be free from excessive force is clearly established in a general sense, the right to be free from the force employed in a particular situation may not have been clear to the officer at the scene.  Thus, overcoming a qualified immunity defense often requires showing that the defendant police officer violated the injured plaintiff’s constitutional rights, and that the plaintiff had a clearly established right to be free from the type of excessive force used.

IV.  Jury Instructions in Excessive Force Cases

In Cook County and the surrounding counties, claims against police officers are often brought in federal court.  The Seventh Circuit Pattern Jury Instructions contain the jury instructions that federal courts in Illinois, Indiana, and Wisconsin must use in excessive force cases.  These instructions provide that in order for a plaintiff to succeed in an excessive force claim, the plaintiff must show: (1) that the defendant officer used unreasonable force, and (2) that the defendant officer acted under color of law.

A person who is employed by the government acts “under color of law” if he uses or misuses authority that he has because of his official position.  A person may act under color of law even if he is violating a state or local law or policy.  A jury may find that a defendant officer acted under color of law even if he acted outside his official authority.


Kisela v. Hughes, 138 S.Ct. 1148 (2018)

Pearson v. Callahan, 555 U.S. 223 (2009)

Graham v. Connor, 490 U.S. 386 (1989)

Tennessee v. Garner, 471 U.S. 1 (1985)

Day v. Wooten, 947 F.3d 453 (7th Cir. 2020)

King v. Hendricks County Commissioners, 954 F.3d 981 (7th Cir. 2020)

Siler v. City of Kenosha, 957 F.3d 751 (7th Cir. 2020)

Becker v. Elfreich, 821 F.3d 920 (7th Cir. 2016)

Abbott v. Sangamon County, Ill., 705 F.3d 706 (2013)

Phillips v. Community Ins. Corp., 678 F.3d 513 (7th Cir. 2012)

Sanchez v. City of Chicago, 700 F.3d 919 (7th Cir. 2012)

Morfin v. City of East Chicago, 349 F.3d 989 (7th Cir. 2003)

Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003)

Miller v. Smith, 220 F.3d 491 (7th Cir. 2000).

Deering v. Reich, 183 F.3d 645 (7th Cir. 1999).

Rambo v. Daley, 68 F.3d 203 (7th Cir. 1995).

McDonald by McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992).

Seventh Circuit Pattern Jury Instructions