What constitutes excessive force by law enforcement?

03rd May 2021

Over the last several months there has been a great deal of discussion as to what constitutes excessive force on the part of law enforcement.  Any discussion needs to begin with what the law is that governs this important issue.  Following is a brief discussion on how a court looks at the issue of excessive force in a civil lawsuit both through the law passed by Congress and the guidance given by the federal courts.


The law in a police excessive force case has been established by both statutory law and the federal courts. In Delpaz v. Richardson, 634 F.3d 895 (7th Cir. 2011) the court stated that a cause of action under 42 U.S.C. § 1983 arises when a: “person who, under color of statute, ordinance, regulation, custom or usage, of any State … 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.” Id. at 899. The United States Supreme Court has stated on the issue of excessive force in seizing an individual that it is “analyzed under the Fourth Amendment’s objective reasonableness standard.” Graham v. Conner, 490 US 386, 388, 109 S. Ct. 1865, 104 L.Ed. 2d 443 (1989). The Supreme Court went on to state:


“[T]he test of reasonableness under the Fourth Amendment is not capable of precise definitions or mechanical application.” Graham, 490 U.S. at 396 (citations and internal quotations omitted).

The factors relevant to a court’s inquiry on excessive force include: “‘[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.’” Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir. 2009) (alterations in original). Objective reasonableness is not judged only by the moment force is exercised; the court must weigh “what the officer knew, the specific situation he encountered, and events leading up to the decision … in other words, the totality of the circumstances.” E.g., Estate of Robinson v. City of Madison, Case No. 15-cv-502, 2017 U.S. Dist. LEXIS 20733, *58 (W.D. Wis. Feb. 13, 2017), Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir. 2013). A Court must engage in “[a] careful balancing of the nature and quality of the intrusion on the individuals’ Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S. Ct. 1865.  A plaintiff does not need to show a physical injury in order to sustain an excessive force claim. California v. Hodari D., 499 U.S. 621, 625, 111 S. Ct. 1547, 113 L.Ed.2d 690 (1991). “The issue is simply whether, once it is clear … that a seizure has occurred, that seizure meets the Fourth Amendment standards.” Baird 576 F.3d at 344 (7th Cir. 2009).