Excessive Force, Brutality, and Unlawful Shootings by the Police in New York State

Constitutional Rules on the Use of Force by Police

Law enforcement officers have an inherent right to use a certain amount of force in the performance of their duties. This right is limited, however, by various laws at the local, state, and national levels. Ultimately, the legal limits on the right of police officers to use force are defined by the US constitution. Local laws may place further restrictions on an officer’s right to use force, but they may not dilute constitutional limitations on the use of force by law enforcement officials.

The Use of Force Spectrum

The use of force by law enforcement occurs along a graduated spectrum, which officers may not escalate absent a threat sufficient to justify the escalation. The following are six levels of threat or force that are often used by law enforcement.

1. Physical presence: The mere physical presence of a police officer is often enough to deter illegal activity.
2. Speech: While it is probably true that only TV cops ever utter phrases such as “Freeze, sucker!”, verbal statements or commands can be more effective than mere physical presence in inducing compliance, especially if the refusal to obey a command would justify an arrest.
3. Force without weapons: Police officers are trained to use holds, punches, and kicks to subdue a suspect.
4. Non-deadly use of weapons: Certain weapons such as batons, mace, tasers, and police dogs can easily be used by a trained police officer against a suspect without a significant risk of killing a suspect.
5. Deadly force: Deadly force can include the use of a lethal weapon such as a gun or the use of a normally non-lethal weapon in a lethal manner (the use of a chokehold by someone trained to kill with their bare hands, for example).

The use of force along this spectrum must stop as soon as the need for it stops – no punitive retaliation is allowed. The amount of force that an officer is justified in using is the minimum amount necessary to de-escalate an incident (tackling a fleeing suspect who has already been placed under arrest, for example) or to protect the officer or others. Any escalation beyond the minimum is considered excessive.

Although the terms “police brutality” and “excessive force” appear nowhere in the US constitution, the concepts underlying that term are expressed in several places, including:

• The Fourth Amendment’s prohibition against unreasonable search and seizure (where “seizure” is written to include the seizure of a person, not only property);
• The Eighth Amendment’s prohibition against cruel and unusual punishment; and
• The 14th Amendment’s prohibition against depriving anyone of life, liberty, or property without due process of law.

Any of these provisions can provide the basis for legal action against the police.

Although all police brutality is prohibited, special rules apply to the use of deadly force. Deadly force can only be used to prevent a suspect from escaping, for example, if (i) it is necessary to prevent the escape, and (ii) the police officer who used deadly force had probable cause to believe that the suspect posed a risk of death or serious injury to others (including the officer) if he was allowed to escape.

Qualified Immunity

“Qualified immunity” is a legal concept that shields public officials, including police officers, from being sued for money damages unless they violated an individual’s “clearly established” rights. Although this concept makes it more difficult to successfully sue the police, its purpose is to prevent public officials from being too hesitant to perform their duties due to fears of civil liability.

Recent Legal Reforms

In June 2020, New York Governor Andrew M. Cuomo signed several bills designed to prevent the abuse of power by the police. The two most prominent reforms were:

• Banning “chokeholds” by police under any circumstances; and
• Repealing a statute that allowed New York police officers to conceal their disciplinary history from the public.

Further reforms are expected in the coming months.

The Most Popular Legal Remedies for Victims and Survivors

The most popular remedy for the use of excessive force by police is filing a civil lawsuit under Section 1983 of the US Code.

Filing a Civil Lawsuit for Injunctive Relief and/or Money Damages under Section 1983 of the U.S. Code

A 1983 claim is a complaint that your civil rights have been violated by someone acting under the “color of law,” which would include an on-duty police officer under almost any circumstances.

Although you may seek injunctive relief (a court order demanding that the defendant do or refrain from doing something), most plaintiffs seek money damages from the police officers and from the city government. If the victim died as a result of police use of excessive force, a claim can still be filed on behalf of the victim’s family and the probate estate.

It is best that you consult with an attorney before filing a claim for money damages. One of the main reasons for this necessity is that your claim might be worth a lot more than you think it is. You might be entitled to compensation for:

• Medical bills;
• Past, present, and future lost earnings;
• Pain and suffering; and
• Any loss of liberty arising from the civil rights violation (false imprisonment, for example).

The “Totality of the Circumstances” Test

Civil rights claims arising from the excessive use of force by police are judged on a case-by-case basis, known in legal parlance as the “totality of the circumstances” test. Factors that may be taken into consideration include:

• The severity of the victim’s crime (if, in fact, any crime was committed at all);
• Whether the victim presented an immediate threat to others, including but not limited to the officer;
• Whether the victim was resisting arrest or trying to escape;
• Whether other alternatives to the amount of force that was used were available; and
• Whether the officer warned the victim or could have warned him/her.

Courts also tend to give the officer the benefit of the doubt under the doctrine of qualified immunity (see above).

We Have Won Many Civil Rights Cases Involving Police Misconduct

If you believe that you have been victimized by police brutality, excessive use of force, or another form of police misconduct – or if your loved one was killed by the police – justice demands a response. You have rights that you might not even know about, and E. Stewart Jones Hacker Murphy can help you enforce those rights.

Contact us by completing our online contact form or by calling (518) 284-3183, so that we can set up a free, no-obligation initial consultation. We look forward to hearing from you!