Police arrest a man acting bizarrely and load him, shackled at the ankles and wrist, into a police van. When they arrive at the station, he is unconscious, his neck broken. A few days later he dies.
A cop arrests a woman for DWI and handcuffs her wrists behind her back. When she is uncooperative and supposedly resists, he slams her face down, breaking her jaw and shattering several teeth.
What, if anything, can the victim or his family do? Do the police get a free ride?
The answer is - No. Individual police may be sued under a federal statute, found at 42 U.S.C. Sec. 1983, titled “Civil Action for Deprivation of Rights.” It’s sometimes called the Ku Klux Klan Act, because Congress enacted it after the Civil War to stop lynchings, beatings and other crimes against blacks.
The pertinent text is here:
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, suit in equity, or other proper proceeding for redress . . . .
The statute allows recovery for actual damages, punitive damages, attorneys fees and costs.
In the two cases above, the officers violated the suspects’ Fourth Amendment right to be free from unreasonable search and seizure.
What must Plaintiff prove?
The Fifth Circuit Court of Appeals pattern jury instructions states what the plaintiff must prove:
Plaintiff claims Defendant violated the Fourth Amendment by using excessive force in making the arrest on [date]. The Constitution prohibits the use of unreasonable or excessive force while making an arrest, even when the arrest is otherwise proper. To prevail on a Fourth Amendment excessive-force claim, Plaintiff must prove the following by a preponderance of the evidence:
- an injury; that the injury resulted directly from the use of force that was excessive to the need; and
- 3. that the excessiveness of the force was objectively unreasonable.26
- To determine whether the force used was reasonable under the Fourth Amendment, you must carefully balance the nature and quality of the intrusion on Plaintiff’s right to be protected from excessive force against the government's right to use some degree of physical coercion or threat of coercion to make an arrest. Not every push or shove, even if it may later seem unnecessary in hindsight, violates the Fourth Amendment. In deciding this issue, you must pay careful attention to the facts and circumstances, including the severity of the crime at issue, whether [Plaintiff posed an immediate threat to the safety of the officers or others, and whether [he/she] was actively resisting or attempting to evade arrest.
- Finally, the reasonableness of a particular use of force is based on what a reasonable officer would do under the circumstances and not on this defendant's state of mind. You must decide whether a reasonable officer on the scene would view the force as reasonable, without the benefit of 20/20 hindsight. This inquiry must take into account the fact that police officers are sometimes forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.
How do you collect a judgment against and individual officer?
The city or county won't be liable for an individual cop's actions. Getting a judgment against them is a whole other subject, and generally requires a systematic pattern of abuse. However, most cities and counties are insured, and their officers are additional insureds under the liability policies.