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Section 1983 excessive-force claims

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.   

Proving excessive-force claims

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:

  • the nature of the crime or other circumstances known to the officer at the time force was applied;
  • whether the person posed an immediate threat to the safety of the officer or to others;
  • whether the person was actively resisting arrest or attempting to evade arrest by flight;
  • the amount of time the officer had to determine the type and amount of force that reasonably appeared necessary, and any changing circumstances during that period;
  • the type and amount of force used;
  • the availability of alternative methods to take the person into custody or to subdue the person;
  • the number of lives at risk (motorists, pedestrians, police officers) and the parties’ relative culpability; i.e., which party created the dangerous situation, and which party is more innocent;
  • whether it was practical for the officer to give warning of the imminent use of force, and whether such warning was given;
  • whether the officer was responding to a domestic violence disturbance;
  • whether it should have been apparent to the officer that the person the officer used force against was emotionally disturbed;
  • whether a reasonable officer would have or should have accurately perceived a mistaken fact;
  • whether there was probable cause for a reasonable officer to believe that the suspect had committed a crime involving the infliction or threatened infliction of serious physical harm; and
  • any other factors unique to the situation.

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.

Section 1983 excessive-force claims “survive” the victim’s death

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:

  • The beneficiary of the decedent’s estate; or
  • Another successor in interest who who has a right to the decedent’s property.

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:

  • If the decedent died leaving a will, the sole beneficiary all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of the cause of action, under the decedent’s will; or
  • If the decedent died without a will, then the persons who succeed to the estate or the particular item of property that is the subject of a cause of action under the laws of intestate succession.

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.