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Can I Sue the Police for Violating My Rights by Using Excessive Force?

What laws protect me from excessive force?

Under Part 1, Article 19 of the New Hampshire Constitution and under the Fourth Amendment to the United States Constitution, citizens have a right, among other things, to be free from “unreasonable” seizures. A police officer unreasonably seizes an individual when the officer uses excessive force to do so, thereby violating the individual’s constitutional right to be free from such government conduct.

How do I seek redress for a violation of my right to be free from excessive force?

You may have heard of 42 U.S.C. § 1983, a federal law that allows citizens to sue for violations of their federal constitutional rights. 42 U.S.C. § 1983 does not provide any new substantive rights that do not already exist under the United States Constitution; rather, it simply provides the vehicle by which citizens can sue to redress violations of the rights that already exist under the United States Constitution.

Thus, any lawsuit concerning the violation of a right provided by the United States Constitution, including the Fourth Amendment right to be free from unreasonable seizures and excessive force, is brought using 42 U.S.C. § 1983.

The proper defendant for an excessive force claim is generally the officer who committed the conduct. In some cases, the municipality that the officer works for may also be liable if a governmental policy or custom is the moving force behind the excessive force that was used. Additionally, if other officers were present who could have, but failed to, stop the offending officer from using excessive force, the other officers present may have liability for their failure to intervene.

When a plaintiff alleges that any right under the United States Constitution was violated, the plaintiff must first show two things: (1) the plaintiff was deprived of rights, privileges or immunities securedby the Constitution of the United States, and (2) the deprivation was committed by a person acting under color of state law.

The plaintiff must also show additional facts based on the particular violation of rights that the plaintiff suffered.

What qualifies as excessive force?

A police officer is legally permitted to apply a reasonable level of force to achieve a lawful objective. Force includes a wide range of conduct such as the officer’s physical presence, verbal commands, the use of handcuffs, employing physical control techniques designed to gain compliance from a resisting subject, the use of a taser or other department issued weapon, and the use of deadly force.

A lawful objective might include effecting an arrest. Another lawful objective could be an officer who briefly detains someone to ask them questions based on the officer’s reasonable suspicion that the person is engaged or is about to be engaged in criminal activity. Regardless of the lawful objective that the officer is trying to achieve, he or she can only use the amount of force that, under all the relevant circumstances, is reasonable to achieve that lawful objective.

In addition to the two requirements under 42 U.S.C. § 1983 discussed above, a plaintiff bringing an excessive force claim must also show that the police officer used force that was unreasonable under all the circumstances. Whether the force applied is reasonable depends on the totality of the circumstances, and the factors to be considered include the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight.

Additionally, in some cases, it may be relevant to consider whether the subject was experiencing the effects of mental illness at the time that the officer used force. Courts have determined that the level of force that is constitutionally permissible in dealing with a mentally ill person differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.

In short, determining whether an officer has used excessive force requires examining all relevant factual circumstances. If you think that the police have violated your right to be free from excessive force, you should consult an experienced attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.

Samantha J. Heuring

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