Thinking About Suing the Police? Here’s What You Need To Know

If you have been injured, unjustly arrested, or otherwise harmed by law enforcement, here are your options for suing the police.

Law enforcement officers hold a great deal of influence over American life. We depend on them for our safety and the civil operation of society. But police officers are human, and they can make mistakes or commit crimes like anyone else.

Whether the issue is wrongful death, injury, or a false arrest, the question is the same. Can you take the police to court if they hurt you?

The short answer is yes. Generally, police are subject to the same laws as civilians. But the road to a lawsuit against the police is not easy.

Governments and police departments are responsible for overseeing officers while they are on duty. Lawsuits against government agencies have extra challenges that must be addressed before your case gets in front of a judge and jury.

When suing law enforcement, there are several issues to think about. More often than not, police misconduct involves complicated points of federal and constitutional law. Furthermore, police are often immune from lawsuits.

Immunity and constitutional rights are only two of the many legal considerations that go into a civil rights case. This article will introduce you to these considerations if you’ve been thinking about suing law enforcement.

Getting Through the Door: Qualified Immunity

Man being arrested by police

One of the biggest obstacles to suing the police is a doctrine known as qualified immunity.

A law enforcement officer may not be liable for hurting you even if a private citizen would. The central question will be whether they were doing their job in good faith.

1. What Is Qualified Immunity, and When Does It Apply?

Qualified immunity recognizes that law enforcement officers are accountable for their mistakes. It also shields them from unfair harassment and liability if they didn’t intentionally do anything wrong. In other words, a police officer trying to do the right thing is not liable for making a sincere mistake.

For example, let’s say a police officer searches a driver’s car and finds drugs. Police officers cannot search without a warrant or good reason to suspect a crime. Before they start the search, they ask the driver if they have permission to search. The suspect says, “uh uh,” meaning “no.” The officer mistakenly hears “uh huh,” thinking the suspect is saying “yes.”

The officer here made an honest mistake. They would therefore not be liable for an unconstitutional search and seizure. The police officer sincerely believed they had legal consent to search.

The above situation is very like the situation faced by an FBI agent in the case of Anderson v. Creighton. The question was whether the FBI performed an unconstitutional search. The United States Supreme Court wrote that if “a reasonable officer could have believed the search to be lawful,” immunity applied.

It is also important to note that even an ill-intentioned officer may be immune from suit in some cases. The Supreme Court addressed this in Malley v. Briggs. Even “an allegation of malice” doesn’t defeat immunity if the police officer’s behavior was reasonable. In other words, even if there are questions about the officer’s intention, they can still be immune if they acted correctly.

So, there is an objective component as well as a subjective one. If a disinterested person would think the officer’s actions were reasonable, immunity is more likely to apply.

2. Cases in Which Qualified Immunity Does Not Apply

Despite the high bar set by qualified immunity, it does not bar all lawsuits. Federal law includes a “police misconduct provision” that makes it illegal for state or local police officers to engage in a pattern or practice of behavior that violates a citizen’s civil rights.

Police misconduct may include: 

  • Excessive force
  • Discriminatory harassment
  • False arrests
  • Coercive sexual conduct
  • Unlawful stops
  • Unlawful searches

Additionally, many states have enacted laws specifically addressing police misconduct. For example, Oregon has enacted a law specifically stating that any public servant causing physical harm to vulnerable persons (such as underage, elderly, or disabled persons) is a misdemeanor. Qualified immunity would thus not be applicable in this case.

Keep in mind that qualified immunity only applies to the individual police officer. Even if the officer is not criminally charged for allegedly harmful behavior, like police brutality, the victim or their family may still pursue a civil lawsuit against the police department or the municipal government.

Suing the Police: State Laws vs. Federal Laws

Courtroom with empty chairs before trial begins

So, assuming that a police officer is not immune from suit, what is the claim you should assert? The answer depends in part on where the incident took place.

States have different laws that are applicable to police officers. Some have more stringent standards of conduct. However, many police misconduct cases end up in federal court.

1. State Law Claims

Many states have responded to the public outcry over police brutality by passing tougher laws. Oregon’s laws about official misconduct are one example. In 2019 California enacted Assembly Bill 392, which clarifies the circumstances when a police officer may reasonably use deadly force.

Laws like these can give rise to stronger negligence claims. Suing police departments and municipalities may thus be easier.

False imprisonment or false arrest claims also arise from state statutes. For example, Nevada’s false imprisonment law. While not intended specifically for police misconduct, statutes like Nevada’s can serve as the basis for a claim if police arrest you without a warrant or probable cause.

2. Federal Claims

No discussion of claims against law enforcement is complete without 42 U.S.C. section 1983. This federal law allows a civil lawsuit (referred to by judges and lawyers as a “section 1983 action”) against any violator, including police officers. Specifically, the claim is for a violation of your federal or Constitutional rights.

Section 1983 actions are important for a few reasons. First, the statute is broad. It encompasses misconduct by any person who deprives another of their civil rights, including government employees, like state and federal police officers and prison guards.

More important is that Section 1983 actions allow plaintiffs to recover attorney fees. Generally in American lawsuits, each side pays their own fees whether they win or lose. Section 1983 actions allow a victim of civil rights violations to force the other side to pay their attorney fees if they win their case.

The ability to recover fees is important. It incentivizes attorneys to take cases holding government employees responsible for their actions. It also makes settlement easier. Many defendants would choose to settle rather than risk the financial hit of a bad jury verdict plus the other side’s attorney fees.

Thus, even though many plaintiffs avoid filing lawsuits in federal court, section 1983 claims are a worthy exception. Having a broad, strong statute and the financial support of the attorney fee-shifting portions of federal law make section 1983 claims an attractive option for people seeking justice against those who have violated their civil rights.

Protect Your Rights and Your Peace of Mind

Multiple police officers arrest someone

Lawsuits against law enforcement officers are among the most difficult to win. Despite that difficulty, many people embark on this journey.

When you have been the victim of police misconduct, you deserve compensation for your injury.

If you or a loved one has been the victim of police brutality or other misconduct, don’t wait to take action.

Many attorneys specialize in these kinds of lawsuits. If you want to learn more about your rights under state and federal laws, contact a local attorney for legal advice and a free case evaluation.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the Martindale.com rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>

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