Recent news and increased attention on law enforcement conduct has opened the public’s eye to
the misconduct of some officers and their use of excessive force by police brutality. Terms such
as “police brutality” and “excessive force” have headlined newspapers and become a part of
household terminology. But what exactly do these terms mean, and where did they come from?
If you or a loved one has been the victim of excessive force by law enforcement, call our
Edmond civil rights attorneys at Cannon & Associates, to seek the justice you deserve.
Before defining excessive force, we must define reasonable force.
Reasonable force requires an officer’s actions were objectively reasonable considering the circumstances in order to mitigate a threat, deescalate a situation, protect others who are endangered, or protect themselves from imminent harm. Since this standard is objective, it comes down to the jury to determine whether the actions were reasonable. In determining this, the jury must consider the circumstances as the officer would have perceived them—not in hindsight. Below are two examples to illustrate the reasonable force standard, regarding a man who shoplifts a knife from a store in a crowded mall.
- The police officer shouts, “Stop where you are!” and the man immediately stops, drops the knife, and does not resist arrest, then it can be said that the police officer used reasonable force. A jury would look at the timing, setting, and other circumstances and declare that the officer reasonably stopped and detained the defendant.
- If the man stopped and was complying fully with the arrest, but the officer decides to use his Taser for no reason, a jury looking at those facts may determine that the use of the Taser was not necessary, and the police officer therefore exceeded reasonable force.
What is Excessive Force?
Excessive force can result in relatively minor damage or injury to another person, but if the force used by the officer is substantially greater than the situation warranted, it may be “excessive.”
Police officers are trained to judge what level of force a situation requires in order to gain
control, and this is why context is incredibly important to determine if the force used was
warranted. Sometimes, an officer in a moment may feel their use of force is reasonable; however,
if the force used was unreasonable it may be deemed excessive and subject that officer to a
Furthermore, while a police officer may be held liable for using excessive force during an arrest, stop, seizure, or other situation, a police officer may also be held liable for not preventing another officer from using excessive force.
What is the Use of Force Spectrum?
The use of force spectrum is not a bright line rule, but a guideline that police officers can
reference when faced with a situation that may become violent. Many law enforcement agencies
have their own policies that supplement this spectrum. The common denominator, however, is
that all police officers must use a level of force that is proportional to the threat and escalates only in response to the threat.
Since the level of force used by an officer may reflect a variety of situations that the officer finds himself or herself in, the general spectrum of “use of force” is broken into six general categories:
Officer Presence. This is the lowest level of use of force, i.e. no force is actually used and the officer’s presence is enough to deter crime or violence. The officer may not even need to be aware of the situation, and is simply doing their job in a professional and nonthreatening manner.
Verbal Command. If an officer sees something that is suspicious, they may always use non- physical force to address the situation. Anyone who has been pulled over for speeding knows the “license and registration” command and may be prepared with the documents even before the officer gets to the window. These commands are generally nonthreatening and are used to gain control and call attention to what needs to be done. Commands may be long or as short as “Stop” or “Hands up.”
Physical Restraint. This is the lowest level of physical force which an officer uses to gain control of a situation. The “soft technique” is when the officer grabs or holds a person in order to subdue or restrain them. For example, if a person starts a fight, an officer may respond by physically grabbing them to break up the fight and keep it from escalating.
Less-Lethal Force. Less lethal force is typically any action that is more aggressive than just physically restraining a person, but not deadly, either. This can include the use of batons as used for blunt impact, chemical sprays such as pepper spray, or tasers, which can be used to temporarily distract or stop an aggressor.
Lethal Force. Lethal force is only authorized when necessary due to a person posing an imminent threat to the officers or others in close proximity to the situation.
It is important to note that an officer does not need to gradually escalate the use of force. Rather, so long as the situation warrants it, an officer may move from a verbal command to lethal force, so long as the situation warrants it.
Officers are expected to use the least harmful means necessary to gain control of a situation and protect the public. They are authorized to use more harmful means when the situation calls for it—but this can be a grey area. When does a situation call for potentially lethal force? The
following are factors that are considered in what level of force is necessary:
- Presence or use of a weapon
- Risk to civilians and officers
- What alternative means of force are available
- The severity of the crime
- Whether the suspect is actively resisting arrest
- Whether the suspect is a flight risk or attempting to escape custody
- If warnings were provided or could have been provided
How does Oklahoma View Use of Deadly Force by Officers?
Oklahoma Statutes Title 21 Section 732 identifies the justifiable use of deadly force by an
officer. It says that an officer is justified in using or assisting deadly force if:
- During an arrest or while preventing the escape from an accused individual in custody,
only if the officer reasonably believes the that force is necessary and there is probable
cause to believe that person will inflict serious bodily harm on another
- The officer is acting in his or her legal duty and believes that use of deadly force is
necessary to prevent death or serious bodily injury of himself or another
- The force is necessary to prevent a felon from escaping a penal institution, but not if the
officer has reason to know that the person escaping is not a felon or the person is not
likely to endanger another if they escape.
Can I Sue a Police Officer for Using Excessive Force?
Yes, you may be entitled to damages for excessive use of force by law enforcement in a civil
lawsuit. In a civil suit, a person is recovers for the damages and injuries that they incurred as a result of excessive police use of force. Excessive force is a civil wrong, called a tort, which is recoverable, if some kind of injury was suffered by the plaintiff. Many civil lawsuits against police consists of the tort of assault and battery. Otherwise, the claims of excessive force often involve negligence.
The Civil Rights Act of 1871, 42 U.S.C. §1983, holds that defendants that act under the “color of law” violate the plaintiff’s constitutional rights. The use of excessive force is a valid claim under the Civil Rights Act, section 1983, as it violates the Fourth Amendment prohibition of unreasonable search and seizure.
What does the Constitution say about Excessive Use of Force?
The constitutional right to be protected from excessive force is found in the reasonable search
and seizure requirement of the Fourth Amendment and the prohibition on cruel and unusual
punishment in the Eighth Amendment.
Excessive force is a constitutional violation that can be remedied by filing a civil rights
complaint for monetary or injunctive relief under Section 1983 of the United States Code. A
person may also file a complaint with the U.S. Department of Justice, which may decide to
investigate the case.
Fourth Amendment: Search and Seizure. The Fourth Amendment states that a person is “secure…against unreasonable searches and seizures” unless there is probable cause and the
search or seizure is specific. The Supreme Court held in one famous case, Tennessee v. Garner
(1985) that police officers could not use deadly force against a felon who was escaping. In this
case, a juvenile broke into an unoccupied home and sole a ring and ten dollars. As police arrived, the juvenile attempted to escape, a police officer shot and killed him. The Supreme Court ruled that this was not a justified use of lethal force because the juvenile, while running away, did not pose a significant threat to the officer or anyone else. If he had posed a risk, the use of force would have been justified.
Four years later, the Supreme Court furthered its stance on police use of deadly force as to when police force was considered necessary and what was considered reasonable. The Supreme Court
in Graham v. Connor ruled that:
police force must be “objectively reasonable” considering the circumstances which surrounded the officer at the time of the use of force, and without consideration of the officer’s motives or intentions.
Police officers are generally allowed to use whatever force is necessary to make an arrest or
defend themselves. In most jurisdictions, when a jury has to decide whether an officer used more
force than was necessary to make an arrest, the judge instructs it to consider what a reasonable
person with the officer’s knowledge would have deemed necessary under the circumstances.
Did Police use Excessive Force against me?
Police force cannot be objectively unreasonable after considering the circumstances of the event. Remember, the police officer’s motivations do not matter. The following types of violence or use of force are typically involved in excessive force cases in Oklahoma:
- Shot by police
- Shot with rubber bullets by police
- Pepper sprayed by police
- Placed in a choke hold by police
- Kicked, punched, or beaten by police
- Thrown to the ground
- Tear gas was used on you
- Tased by police
- Struck with Police Baton
- Loved one was killed by police
Burden of Proof
In a civil suit, the burden is on the plaintiff to prove liability by a “preponderance of the
evidence” (meaning “more likely than not”). A defendant—in this case an officer—who raises a
defense of justified use of force must prove by the same standard that there was a legal excuse
for the conduct in question. (The preponderance-of-evidence standard is much lower than that in
a criminal case: “beyond a reasonable doubt.”)
In Oklahoma, as in every state, the fact the plaintiff was guilty or innocent of the crime being
committed is not a valid defense to excessive force by police. However, factual innocence for the alleged crime that caused the police officer to use excessive force on you or a loved one certainly help show the use of force wasn’t necessary.
Are Police Immune from being sued?
Police are not immune from being sued for excessive force. However, Oklahoma has “qualified
immunity” statutes, which can relieve law enforcement officers from liability for injuries they
cause in the course of their duties. However, the law stated above and multiple cases in
Oklahoma confirm that when police use excessive force, they are no longer protected by
Sovereign Immunity protects police departments and law enforcement agencies from being sued
as part of the government; however, Oklahoma has a general waiver of sovereign immunity for
state agencies and government entities. It is possible to have an issue suing the law enforcement agency; however, with the right facts, sovereign immunity is waived and you will be able to sue the law enforcement agency for its employee’s conduct and/or its failure to supervise and train that officer.
What is Qualified Immunity?
Qualified Immunity is a Supreme Court doctrine that shields government officials from being
held personally liable for constitutional violations and prevents frivolous litigation against
government employees. The doctrine balances the interests between holding public officials
accountable and shielding them from harassment. While Oklahoma has qualified immunity, it
has been deemed generally waived by the Oklahoma Supreme Court and officers can still be held
liable for excessive force.
What is Sovereign Immunity?
Sovereign immunity is another layer a person must go through in order to sue the police and city
or county. States have immunity from lawsuits by private citizens in under the Eleventh
Amendment to the Constitution, and many states expand this protection on to municipalities.
Again, Oklahoma has a general waiver of sovereign immunity; however, there are exceptions
that protect the government from being sued.
Eighth Amendment: Cruel and Unusual Punishment
The Eighth Amendment clearly prohibits cruel and unusual punishments, and while we know
this amendment excludes torture and excessive fines, it can also encompass issues with
inappropriate and excessive use of force by the police. For example, if a police officer uses
excessive force by shooting an individual when a lower level of force would be sufficient, a
judge could easily find that to be a violation of the individual’s rights, which would make the
office potentially liable for excessive force.
Additionally, the use of physical force must stop when the need for the force ceases, such as
when a suspect is successfully restrained, or a situation has otherwise dissolved. This is because an officer isn’t allowed to punish criminals who no longer pose a threat. A police interaction that began as an appropriate level of use of force can quickly escalate to excessive force, if the officer exceeds the necessary force in a given situation.
Can I Protect myself from Excessive Use of Force by Police?
Anytime you deal with police, it is always best to be respectful and follow directions. Police are only allowed to use force when they reasonably believe it is necessary, and as citizens there are certain things you can do to make sure that you do not create a scenario that creates that risk. Situations can easily escalate if you become aggressive or refuse to follow reasonable commands. If you feel like your rights have been violated by a police officer, the best course of action is to call an excessive force lawyer and seek a legal remedy. You should not be combative with police in the moment. You should comply and seek legal advice when it is safe.
If it is reasonable, do what you are told. There are many limits to what a police officer can tell you to do. If you run a red light and get pulled over by a police officer and they ask for your license and registration, give it to them. It is their job to collect the documents on any traffic stop. One the other hand, if a police officer comes to your door and asks to come inside without a warrant, you have the right to refuse. It is important to know your rights but remember that instead of getting aggressive when you think a police officer is exceeding their constitutional authority, you can call an excessive force lawyer and seek a legal advice.
Do not get violent or aggressive. Dealing with the police can be very frustrating, if you feel your rights are being violated. It is understandable, if your emotions escalate. However, it is important to remember to stay calm when dealing with police officers. If you feel like you are being wronged, such as an officer asking you to step out of your car to search it when you feel they do not have probable cause, it is unlikely that fighting them will do anything but end you up in jail and possibly injured.
Mostly, if the situation escalates and you become violent, police officers can respond in the same manner, and if they feel like you become a threat they may mistakenly use excessive force in order to subdue you. Remember that the officers do not know you, and if you become
threatening, they will treat you as if you are capable of harming them or others around you. If
you feel like your rights are being violated, stay calm, comply with police commands, and call an excessive force lawyer when it is safe.
Do not try to run away. It is never a good idea to run away from a police officer when they are
trying to stop you. Police are allowed to stop you for probable cause, and if you run away, they
will likely chase you. It is their job to assess situations and by running away, you are more at risk of the officers using excessive force to stop you. It is best to stop and comply with office commands and ask, if you are free to leave. Again, if you feel your rights are being violated, do not run, comply with the officer’s demand and call an excessive force lawyer when it is safe.
If you are holding a weapon, drop it and obey officer commands. If you are being stopped by a police officer, it is a good idea to let them know if you are armed. In Oklahoma, if you are not a prohibited person then you may have a concealed weapon with a permit. However, it is important to alert the officer that you have a weapon and keep your permit card with you.
A firearm can make a police interaction deadly, if you are coming into contact with police on
suspicion of committing a crime. You should obey officer commands, if you have a weapon and
make no sudden movements. You should slowly set the weapon on the ground, while calmly
stating that you are setting your weapon on the ground, and comply with officer commands.
Sadly, suspects with weapons have been injured and even killed when officers believe they pose
a risk to the officer’s safety or the safety of others. For your safety, it is important to listen carefully to what the officer tells you to do. It is always advantageous to make yourself clear and follow directions in this scenario. If you or a loved one is injured or even killed by law enforcement, you should contact an experienced Oklahoma excessive force attorney.
Record your interactions with officers. With cameras on almost every cell phone, it has become increasingly popular to record your interactions with police. This can be valuable evidence in a lawsuit if you believe that your rights are being violated. You have the right to record all interactions with the police, and if you feel like you may be in danger of excessive force being used against you, try to get it on a recording. Again, you should comply with law enforcement instruction and contact an excessive force attorney when it is safe to do so.
Call an Experienced Excessive Force Lawyer. If you feel your rights are being violated, or you are a victim of excessive use of force, an experienced excessive force lawyer can help. The best remedy for these situations is through the legal system, and our Fierce Advocates can fight for your rights to get you the justice you deserve. To reduce the chances of being the victim of an excessive force scenario, stay calm, comply with officer commands and ask for an attorney.
Contact – Cannon & Associates: Oklahoma Excessive Force Advocates
Experience matters, when you or a loved one are the victim of excessive force by police in Oklahoma. It is important to know the Oklahoma excessive force lawyer you hire is dedicated to your cause and versed in all aspects of excessive use of force and immunity laws in Oklahoma. Cannon & Associates is dedicated to Fierce Advocacy and will fight for, support, and guide you through the complex legal system. We are dedicated to helping you resolve your dispute in the most advantageous way and support you during this difficult time. Contact Cannon & Associates to protect your rights and fight for your case in Oklahoma. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at (405) 906-4051 for a free confidential case evaluation.