Use of Excessive Force – What to Do?

Almost every day on social media and in the news, we watch video footage of altercations between law enforcement agents and citizens. Improved technology, such as body cameras, dashboard cameras and smartphones in the hands of both the police and individuals, as well as the Internet’s free distribution channels, have brought increased scrutiny to the ongoing use of excessive force.

Many in the U.S. are outraged and devastated by the injuries and deaths of hundreds of people, many of them unarmed, from the use of excessive force by law enforcement agents, and by the disproportionate impact of this trend on people of color. More than twenty-five years after the 1992 Los Angeles riots, accusations of excessive force and police brutality continue to make headlines and generate heated discussion, stress and fear within these communities.

Although the recent two decades have brought about some notable legal reform, police continue to be acquitted in a number of cases involving the deaths of young black men and children whose names, Eric Garner, Michael Brown, Tamir Rice, Walter L. Scott, Freddie Gray, and Michael T. Slager, have become a rallying cry for equal treatment for all citizens. Other controversies are the 2014 and 2015 investigations into the Albuquerque, Cleveland and Ferguson police departments, which revealed “a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment,” and a pattern of “clear racial disparities” and “discriminatory intent.”

How is the Use of Excessive Force Determined?

In legal cases, use of excessive force refers to situations of police or other law-enforcement agents, who are legally entitled to use force, acting with an amount of force that is more than necessary to diffuse an incident or to protect themselves or others from harm.

A law enforcement officer’s use of excessive force is a violation of a person’s constitutional rights. The Fourth Amendment, regarding the requirement of reasonable search and seizure, and the Eighth Amendment, regarding the prohibition of cruel and unusual punishment, form the constitutional basis of all individuals’ right to be free from excessive force. Additionally, evidence points to a pervasive problem only recently acknowledged fatal shootings specifically can be greatly reduced by training officers about mental illness awareness and how to de-escalate violence in such cases.

Why do Some Police Officers Use Excessive Force?

Typically, during an arrest incident, law enforcement officers are under stress, especially if they feel they are confronting a life and death decision. The Criminal Justice Policy Review of 2012 found that a “small proportion of officers are responsible for a large proportion of force incidents, and that officers who frequently use force differ in important and significant ways from officers who use force less often (or not at all).”

Although many in the enforcement sector strive to hold to the high standard of equal treatment while risking their own lives to protect the community, the findings reveal several common reasons that a smaller number of police officers abuse the power of their position. These reasons include discrimination and prejudice against minority populations, fear or insecurity that triggers a violent reaction, and in some police jurisdictions, a toxic policing culture that encourages the use of excessive force against suspects.  

As far as finding solutions to police use of excessive force, recent studies and journalistic investigations suggest that mandating the use of body cameras can reduce violent incidents by up to 60%.It was also found that police officers with more experience and education are less likely to act violently against suspects.

Can a Police Officer be Sued for Excessive Force?

For violating a citizen’s civil rights by using unapproved methods, such as restraining a suspect with an unapproved hold, using unnecessary force to remove a bystander from the scene, or deadly force, an officer may face civil charges of police misconduct. Police may also be liable for injuries caused for failing to abide by proper protocols and training when using excessive force in the course of an arrest, an investigation or a seizure.

Court decisions vary by jurisdiction and by patterns of facts, but generally evaluate allegations of excessive force based on the answers to these questions:

  1. Was the force used necessary to prevent either an escape or further harm?
  2. Did the police officer have probable cause to believe that the suspect posed a significant threat of serious physical injury or death to the officer or to others?

What to Do If You are a Victim of Excessive Force by Police?       

Body cameras: Mandating the use of body cameras by police increases transparency of incidents between law-enforcement officers and citizens. One year after the Rialto, California police department required all officers to wear body cameras, incidents of excessive force fell by 60% and complaints of police brutality dropped by almost 90%.

Training and accountability: A 2007 study on “Police Education, Experience and the Use of Force” found that officers with more experience and education are less likely to act violently against suspects. Additionally, a 2013 review of case studies encouraged the use of targeted training programs and setting up structures for accountability to lower the use of excessive force by law enforcement agencies.

Mental illness awareness:

The Washington Post tracked every fatal shooting that occurred in 2015 across the U.S. by on-duty police officers that revealed a pervasive problem only recently acknowledged, which is the lack of specific training for police when confronting a person with mental illness. The case reviews showed that such incidents often escalate to violence and fatalities.

What to Do If You are a Victim of Excessive Force by Police?

Although it may not be possible to use all of these suggestions, it is good to be aware and prepared to document interactions with law enforcement officers. Some of these suggestions greatly help avoid the escalation of incidents into violent confrontations, and can be similar for both individuals and for officers, including:

  1. Know your state’s law: Learn the standards and application of the use of force within your state of residence, and know your constitutional rights.
  2. Remain calm: In an altercation, remain calm and peaceful, answer questions and obey officers without resistance to avoid escalation of emotions and the use of physical force.
  3. Witnesses: One of the best ways to diffuse a difficult situation is having witnesses on the scene. Stay within view of the public when possible. Speak loudly enough so the both the officers on the scene and witnesses can clearly hear and understand what you say.
  4. Recordings: Audio or video recordings, including body camera or dash cam footage, provides documentation of words and actions step-by-step that can be used in legal action.
  5. Document all the details: As soon as possible, write or record a detailed account of everything that happened. Ask key witnesses to record what they saw and heard in detail. The more thorough the statements, the better the outcome.
  6. Get legal advice: If you have been a victim of the use of excessive force by law enforcement agents, contact a lawyer as quickly as possible so you can be advised of your rights, get any medical help needed, and secure your documentation as soon as possible while the details are still fresh.

Earle Injury Attorneys represents people whose rights have been violated by use of excessive force and for being wrongfully detained, searched or arrested. Call (770) 677-5700 for a free consultation with Attorney Myrlin Earle, who will review your case and explain your options for filing a claim.

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