Is There a Difference Between Excessive Force and Police Brutality?
Yes and no, excessive force refers to the situation when a government official, including law enforcement, uses force that exceeds the amount of force necessary to resolve a situation and protect the public and themselves from harm. Police brutality, as is sounds, relates to when specifically law enforcement uses too much force, usually during an arrest. Therefore, excessive force has a broader scope of applicability than police brutality; however, you can recover damages for both.
The Constitution and subsequent statutes and case law or decisional law provides protections against police brutality and excessive force. The Fourth Amendment to the Constitution provides protection from excessive force under the “reasonable search and seizure” clause of the amendment. The reasonableness factor is the basis for evaluating whether law enforcement conduct was reasonable or excessive force. Additionally, the Eight Amendment to the Constitution prohibits “cruel and unusual punishment”, which is another protection from police brutality and excessive force.
Supreme Court and Unreasonable Force
In 1985, the Supreme Court decided the benchmark case of excessive force in Tennessee vs. Garner, the Court determined the police officer used excessive force by shooting an unarmed and non-threatening teenager that was fleeing a burglary. The Court ruled the following requirements for an officer to use deadly force:
- Deadly force was necessary to prevent the escape; and
- The office had probable cause to believe the suspect presented the officer or other with a significant threat of death or serious physical injury.
Since the Supreme Court’s decision in Garner, the application of excessive force by police has expanded to any instance where an officer’s use of force was excessive or unreasonable in the given situation.
What Is Excessive Force in Oklahoma?
Law enforcement have the inherit ability to use force, which is reasonable and necessary to defend themselves or others or to make an arrest. However, when police use more force than is reasonable for the given situation, it may mean excessive force was used. In police brutality or excessive force cases the determination of whether an officer used reasonable or excessive force is typically a question of fact determined by a jury. The jury or fact finder will be tasked with determining whether or not the office used excessive force given all the facts available to the officer at the time.
Courts have recognized how subjective the above excessive force analysis can be for juries; therefore, a Use of Force Spectrum has been developed to assist juries in identifying excessive force. The Supreme Court has held “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat.” But, the Court has also held the degree of force or coercion must be proportional to the threat and can only escalate in response to the threat.
Excessive Force: Use of Force Spectrum
The following escalation of force is an idealistic framework that does not have applicability to every situation involving law enforcement using force. However, these methods are designed to hopefully de-escalate a situation before it becomes deadly. Most instances of excessive force by police are easily identified by considering the following Use of Force Spectrum:
- Physical Presence: the uniform, badge, and weapon of most police officers is enough to give pause to many individuals.
- Verbalization: law enforcement should attempt verbal statements, such as non-threatening requests, demands, and if necessary direct orders to diffuse situations. The lack of any attempted communication by law enforcement is often found in excessive force cases.
- Empty-Hand Control: the use of grabs, restraints, and strikes are an available tool that are less likely to cause permanent injury to a suspect.
- Less Lethal Methods: most officers have weapons that are less than lethal on their service belt, i.e. a baton, Tasers, or chemical spray, which provide a tool to de-escalate a situation prior to using deadly force.
- Lethal Force: all officers carry a firearm; however, not all situations dictate the use of lethal force. Unfortunately, many excessive force cases involve officers shooting suspects or victims, when a less lethal tool was available to end the situation.
Common Forms of Police Misconduct or Excessive Force
As indicated above in the Excessive Force: Use of Force Spectrum, whenever an officer uses excessive force or more force than is necessary to resolve a situation, the result is police brutality or excessive force, which is a violation of the person’s civil rights. The following are some of the most common forms of police misconduct or excessive force in Oklahoma:
- Suspect is being detained and force beyond what is necessary on the Use of Force Spectrum;
- Physical violence or use of force that exceeds that necessary to de-escalate the situation;
- Lethal force, when a less lethal mean of force could have resolved the situation; and
- Police use of force or authority that is unnecessary in the given situation.
Can I Sue for Police Brutality in Oklahoma?
You can sue for police brutality in Oklahoma, if the officer violated your Fourth Amendment rights and you suffered excessive force by an officer. Excessive Force is a constitutional violation, remedied by a civil rights complaint seeking monetary damages and possibly injunctive relief under Title 43 Section 1983 of federal law, which governs Civil Rights claims. This federal law gives individuals the right to sue government employees and agencies when they violate a person’s civil rights.
These actions are typically referred to as Bivens Actions, as a result of the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents, in which the Court ruled the plaintiff must be able to prove the officer violated a right protected under the Constitution. When an officer’s conduct is not “objectively reasonable” given the facts and circumstances of the situation, the officer and agency can be held liable.
Sovereign Immunity and Qualified Immunity in Excessive Force Cases
Law enforcement agencies and their officers exercise certain immunities, including sovereign immunity for state agencies and qualified immunity for the police officer or officers involved in some circumstances. Sovereign Immunity and Qualified Immunity have largely been waived in Oklahoma, except for certain exceptions, in which the State of Oklahoma has retained Sovereign Immunity for agencies and government employees.
Sovereign immunity is a legal doctrine that provides immunity from civil suit, civil damages, or criminal prosecution to the state, i.e. Oklahoma and/or Oklahoma State Agencies. Qualified immunity protects government actors from liability in only limited circumstances, if the conditions for that circumstance are met. Although qualified immunity still exists and shields some state actors from liability for civil harms, we have been successful in overcoming qualified immunity in law enforcement excessive force cases. The Oklahoma Legislature has not eliminated these doctrines; however, they are strictly curtailed and only apply in limited circumstances.
However, in Oklahoma, in order to file a lawsuit for excessive force by a police officer, you will need to follow the Government Tort Claim Act’s mandates, which include filing a Tort Claim with the State in order to obtain a “Right to Sue”, pursuant to the State’s retained Sovereign Immunity. Please see our other posts concerning Sovereign Immunity and Qualified Immunity for answers to your specific questions on these topics.
How can I Prevail in my Oklahoma Excessive Force case?
In order to prevail in your claim, you will need to be able to demonstrate that a reasonable officer in the same situation as your case may determine the officer acted unreasonably.
The more evidence you can present to support your claim the better, i.e. surveillance or a cellphone recording of the incident is powerful evidence. Additionally, it is important to preserve any witness statements and take photographs of your injuries. You will need counsel to represent you in your excessive force case, as well as your criminal case, if you are arrested or charged with a crime.
What Types of Compensation are available in an Excessive Force Lawsuit?
There are a variety of types of compensation available in excessive force lawsuits in Oklahoma. You may be entitled to economic and non-economic damages in an excessive force lawsuit. The economic damages you may receive in an excessive force lawsuit in Oklahoma cover medical bills, therapy expenses, lost income, and other direct expenses as a result of the harm. Additionally, the non-economic damages you may receive in an excessive force lawsuit in Oklahoma cover pain and suffering, emotional distress, and other negative impacts suffered as a result of the excessive force incident.
Contact an Experienced Excessive Force Lawyer in Oklahoma Today
Experience matters when you or a loved one has been the victim of excessive force by law enforcement in Oklahoma. Our Fierce Advocates at Cannon & Associates are dedicated to fighting for every client, will explain everything to you at each step in the process, and help you obtain the outcome your family deserves.
Cannon & Associates is here to support and guide you through all of your options and will be there for you from beginning to end. 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 405-369-5267 for a free confidential case evaluation.