Police uses of force fall on a continuum that proceeds from “command presence,” to going “hands-on” with a person via a “wrist-lock” or other control hold, through batons, pepper spray and tasers, all the way to firearms and other deadly force, such as a “carotid hold.” Generally, officers are trained that their use of force must be proportionate to the situation they are facing. Before using any type of force, officers’ training requires them to think about the objective factors that would justify a particular use of force to ensure that the use of force doesn’t exceed constitutional limits.
Where law-enforcement officers have used excessive force, a police-brutality victim may bring a section 1983 claim under the Fourth Amendment. The main question for the jury in excessive-force cases is whether, under the multi-factor Graham v. Connor, 490 U.S. 386 (1989), a reasonable officer would have thought that a certain type and amount of force was needed. “The need for force . . . is at the heart of the . . . Graham factors.” Alexander v. City & Cnty. of S.F., 29 F.3d 1355, 1367 (9th Cir. 1994). Generally, whether the police-brutality victim posed a threat of immediate harm to the officer or anyone else is the most important factor. That the officer was afraid, or that a person posed a potential threat of immediate harm, is not enough. Objective facts must indicate that the person posed an immediate threat right before the officer used force. Other relevant factors include whether the person was committing a crime, as well as whether the person was trying to flee. At trial, in assessing the reasonableness of a particular use of force, a jury will examine all the facts known to the officer at the time—called the “totality of the circumstances”–which may include:
Ninth Cir. Civ. Jury Instr. 9.25.
In the end “[a]ll that matters is whether the police officer’s actions were reasonable.” Scott v. Harris, 127 S. Ct. 1769, 1777-78 (2007).
If the excessive-force victim succeeds at trial, a jury may allow damages for pain, suffering, and to make an example out of the defendant’s conduct–also known as “punitive” damages. The victim may also get the losing party to pay the victim’s attorney’s fees (and costs), under 42 U.S.C. § 1988.
Under California’s “survival statute,” a person’s section 1983 excessive-force claims survive the person’s death. Cal. Civ. Proc. Code §§ 377.10-377.50. Certain qualified survivors—known under California law as “successors-in-interest”—may bring these § 1983 “survival” claims to vindicate the deceased person’s constitutional rights. Other California law causes of actions—such as for assault, battery, or for violating the Tom Bane Civil Rights Act—also survive the decedent and may be brought by qualified survivors as “pendent” state-law claims. California law specifies the family members who may bring survival claims. Successors-in-interest are:
Cal. Civ. Proc. Code §§ 377.10-377.50.
The beneficiary of the estate falls into two categories, depending on whether or not the decedent left a will:
Cal. Civ. Proc. Code §§ 377.10–377.50.
The successors-in-interest may bring survival claims to seek compensation for their loved one’s pre-death pain and suffering. Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014).
Damages for survival actions based on the loss of federal rights also include: medical expenses incurred before death, loss of earning capacity to the date of death, and punitive damages.