Force by a police officer becomes excessive when it exceeds what a reasonable officer would have believed necessary under the circumstances. For a person who was arrested or stopped, the Fourth Amendment supplies that test, and the inquiry turns on the facts known to the officer at the moment force was used, not on how the encounter ended. This article explains the governing standard, the Supreme Court decisions that shaped it, the kinds of facts that matter, and the steps a person can take to preserve a claim.
TL;DR
- For free citizens, excessive force claims are analyzed under the Fourth Amendment’s objective reasonableness standard from Graham v. Connor (1989).
- Courts weigh the severity of the offense, the immediate threat posed, and whether the person was resisting or fleeing, judged from the standpoint of a reasonable officer on the scene.
- Different standards govern pretrial detainees and convicted prisoners, so the person’s status at the time of the incident determines the legal test.
- Accountability can proceed through a federal civil suit under 42 U.S.C. § 1983 or, separately, through a federal criminal prosecution under 18 U.S.C. § 242.
- Video, medical records, witness names, and agency records such as body camera footage are time-sensitive and should be preserved early.
Table of Contents
- What excessive force means in law
- Which constitutional amendment applies
- The Graham v. Connor test
- Circumstances and types of force that matter
- Other Supreme Court decisions that frame these claims
- Routes to accountability
- Preserving evidence after an incident
- Our perspective
- When to speak with a civil rights attorney
- FAQ
- Sources
What excessive force means in law
Excessive force is, in the formulation used by Cornell’s Legal Information Institute, force in excess of what an officer reasonably believes is necessary. Whether the officer used more force than he or she reasonably believed necessary at the time is ordinarily a factual question for the jury, which is why many of these cases survive pretrial motions only when the record contains specific, contested facts.
Two features of the definition deserve emphasis. First, the test is not whether the force caused injury, although injury is relevant evidence of how much force was used. Second, the test is not whether the officer subjectively intended harm. As discussed below, the Supreme Court deliberately removed that inquiry from arrest-related claims.
Which constitutional amendment applies
The amendment that governs depends on the status of the person at the time force was used. The Department of Justice’s Civil Rights Division describes the distinction in the following terms: for a person who has been arrested or detained, or who is held in jail but has not been convicted, the question is whether the officer used more force than was reasonably necessary to make the arrest or gain control, measured by what a reasonable officer would do under the same circumstances. For a convicted prisoner, the question is whether force was used to punish, retaliate, or otherwise cause harm rather than to protect others or maintain order.
| Person’s status | Governing standard | Core question |
|---|---|---|
| Free citizen during an arrest, stop, or other seizure | Fourth Amendment | Was the force objectively unreasonable? |
| Pretrial detainee | Objective unreasonableness (Kingsley v. Hendrickson) | Was the force purposely or knowingly used and objectively unreasonable? |
| Convicted prisoner | Eighth Amendment | Was force applied maliciously and sadistically to cause harm? |
The phrase “excessive force amendment” therefore has no single answer. In the context most readers describe, a street encounter, a traffic stop, or an arrest, the answer is the Fourth Amendment.
The Graham v. Connor test
In Graham v. Connor, decided May 15, 1989, the Supreme Court held that all claims that law enforcement officers used excessive force, deadly or not, in the course of an arrest, investigatory stop, or other seizure of a free citizen are analyzed under the Fourth Amendment’s objective reasonableness standard rather than under substantive due process. The Court rejected the subjective “malicious and sadistic” test for these claims, reasoning that the word “unreasonable” in the Fourth Amendment does not invite inquiry into an officer’s state of mind.
The analysis requires careful attention to the facts and circumstances of each case, including three factors the opinion identifies:
- The severity of the crime at issue.
- Whether the suspect poses an immediate threat to the safety of the officers or others.
- Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
Reasonableness is judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight, and the calculus must allow for the fact that officers are often forced to make split-second decisions in tense, uncertain, and rapidly evolving situations.
How the standard operates in practice
The Federal Law Enforcement Training Centers teach officers that a seizure must be objectively reasonable in its inception, in the degree of force used, and in its duration. The same materials stress that officers must be able to articulate the facts that made force reasonable. A conclusory statement that a person was “non-compliant” is not sufficient for a court to make an objective determination.
That emphasis on articulable facts is significant for a person who believes force was excessive. The claim will usually be decided on what each side can establish about the moments immediately before force was used: what the person’s hands were doing, what was said, how many officers were present, and whether the person was already restrained.
Scholars at Stanford’s use-of-force project observe that, although Graham characterized the standard as objective, courts often shift attention from the officer’s actions to the officer’s mental state, asking whether the officer’s belief was reasonable regardless of outcome. This is one reason that two cases with similar injuries can be resolved differently.
Circumstances and types of force that matter
The Supreme Court has not issued a catalogue of permitted and prohibited techniques. Courts instead examine the totality of the circumstances, and the following categories of facts recur in litigation.
The kind of force used
Excessive force claims have involved chokeholds, tasers, firearms, batons, tear gas, rubber bullets, pepper spray, punches, kicks, and tight or improperly applied handcuffs. The instrument is relevant, but the decisive question is whether that level of force was proportionate to the circumstances at the time it was applied.
The person’s conduct and risk
A person who is handcuffed, subdued, or not resisting presents a different risk profile from one who is actively fleeing or armed. Force that might be justified at the outset of an encounter can become unreasonable once the person has been restrained, which is why the duration of force is part of the analysis.
The seriousness of the underlying offense
A minor infraction, a suspected misdemeanor, or a welfare check supports less force than a violent felony in progress. Courts treat the severity of the offense as a distinct factor, not as a license for any force once an officer has initiated contact.
Deadly force and fleeing persons
In Tennessee v. Garner, decided March 27, 1985, the Supreme Court held unconstitutional a statute authorizing deadly force against an apparently unarmed, nondangerous fleeing suspect. Deadly force may not be used unless it is necessary to prevent escape and the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to the officer or others.
Whether other officers intervened
Liability is not limited to the officer who applies force. The Department of Justice notes that an officer who purposefully allows a colleague to violate a person’s constitutional rights may be prosecuted for failure to intervene, where the officer was aware of the violation, had an opportunity to intervene, and chose not to do so.
Conduct during arrest and its consequences
A charge such as resisting arrest often accompanies an excessive force allegation, and the criminal case and the civil claim can interact. Families dealing with the criminal side of an arrest may find a guide to resisting arrest and bail in California useful for understanding what officers and prosecutors may allege about the person’s conduct.
Other Supreme Court decisions that frame these claims
| Decision | Year | Holding in brief |
|---|---|---|
| Tennessee v. Garner | 1985 | Deadly force against an unarmed, nondangerous fleeing suspect is unconstitutional |
| Graham v. Connor | 1989 | Fourth Amendment objective reasonableness governs force during seizures of free citizens |
| Kingsley v. Hendrickson | 2015 | A pretrial detainee need show only that force was objectively unreasonable |
| Whitley v. Albers | 1986 | Eighth Amendment standard for convicted prisoners: force applied maliciously and sadistically to cause harm |
| Hudson v. McMillian | 1992 | A prisoner need not prove a “significant injury” to state an Eighth Amendment excessive force claim |
In Kingsley v. Hendrickson, decided June 22, 2015, the Court held that under 42 U.S.C. § 1983 a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable, judged from the perspective of a reasonable officer on the scene. For convicted prisoners, the Court in Whitley v. Albers and later in Hudson v. McMillian framed the question as whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically to cause harm, and Hudson rejected any requirement of a significant injury.
Routes to accountability
A single incident can give rise to more than one proceeding, each with a different decision-maker, burden of proof, and outcome.
Federal criminal prosecution
Under 18 U.S.C. § 242, the government must prove beyond a reasonable doubt that the defendant deprived a victim of a federally protected right, acted willfully, and acted under color of law. The offense is a felony where the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive, or fire, where bodily injury resulted, or where the conduct involved certain grave offenses or resulted in death; otherwise it is a misdemeanor, according to the Civil Rights Division. The decision to prosecute rests with the government, not with the injured person.
Civil rights litigation under Section 1983
A civil action under 42 U.S.C. § 1983 permits a person to sue an individual who, acting under government authority, violated constitutional rights. Remedies can include compensatory damages and, in cases of especially egregious conduct, punitive damages. Defendants frequently invoke qualified immunity, which asks whether the conduct violated a clearly established right, and the way courts apply that doctrine to the particular facts is often the central contested issue.
Section 1983 does not contain its own limitations period. Federal courts borrow the forum state’s personal injury limitations period, and claims against public entities under state law can carry separate, shorter notice requirements. The practical consequence is that the time to act is measured in months, not years, and the applicable deadline should be confirmed with counsel licensed in the relevant state as soon as possible.
Administrative complaints and records
A complaint to the agency’s internal affairs unit or a civilian oversight body creates a record, though it is not a substitute for a court filing. The documents generated by the agency, including incident reports, dispatch logs, and recordings, are often the most probative evidence in later litigation and are obtainable, in many instances, through public records laws.
For a general explanation of the civil remedies available to a person subjected to police force, see this overview of what to do after excessive force by police.
Preserving evidence after an incident
The following steps are procedural rather than strategic, and each one protects the factual record on which a reasonableness determination will later rest.
- Obtain medical care and keep every record. Treatment records document the nature and timing of injuries. Photograph injuries immediately and again over the following days as bruising develops.
- Write down what happened while memory is fresh. Record the date, location, the number of officers, badge numbers or names, patrol car numbers, what was said, and what each person was doing before force was used.
- Identify witnesses. Names and contact information of bystanders are difficult to recover later.
- Collect video. Cell phone footage, doorbell cameras, and nearby business surveillance systems often overwrite on a short cycle. Our guides on recording police in public and on preserving footage under California’s SB 411 address the lawful limits and practical safety considerations.
- Request agency records promptly. In California, our discussion of the 45-day rule for body camera records explains why timing matters. Where an agency declines to produce records, a public records lawsuit in California is the mechanism for compelling disclosure.
- Do not discuss the incident publicly or with the agency without counsel. Statements made informally can later be characterized as admissions, particularly where criminal charges are pending.
Where an encounter began because a person was filming officers, a separate set of rights is implicated. Our article on a police stop for filming sets out the rights and the limits, and the First Amendment retaliation framework explains when adverse action taken because of protected activity can itself be actionable.
Our perspective
Cases involving government power are won or lost on the record. In our practice, the claims that proceed furthest are those in which the client, or someone acting for the client, secured the documents and recordings early, because the agency’s own account of an encounter is rarely complete.
We approach civil rights work from the position that public institutions must be accountable to the people they serve. That commitment is why we pair litigation with public records requests and, where necessary, FOIA and public records lawsuits, so that the factual basis of a claim does not depend on the goodwill of the party being challenged.
We also take direct responsibility for client communication. A person who has been through a traumatic encounter with state actors should be able to speak with the attorney handling the matter, and we handle most of our cases on a contingency-fee basis, meaning the client pays nothing unless there is a recovery.
Where a matter falls within our practice areas, including First Amendment retaliation for recording or criticizing officers and discrimination by public bodies, we pursue it in federal and state court with nationwide federal court admissions.
Mark
When to speak with a civil rights attorney
Javitch Law Office is a California-based civil rights firm with a nationwide reach. We represent clients in First Amendment matters, including retaliation and interference with the right to record, and in discrimination matters, and we pursue government records through FOIA and public records litigation. Most of our cases are handled on a contingency-fee basis, and initial consultations are free.
If your situation involves an encounter with police connected to protected speech, recording, religion, or race, you can contact us through our practice areas page for a case evaluation. Our guide to choosing a civil rights attorney by reviewing court filings explains how to assess any lawyer’s record before you retain one.
FAQ
Is any force by police against a person who is resisting arrest lawful?
No. Resistance is one factor under Graham v. Connor, not a complete justification. Force must remain objectively reasonable in degree and duration, and force that continues after a person has been subdued can be found unreasonable.
Do I need to be seriously injured to bring a claim?
Injury is relevant to damages and to proving the amount of force, but the constitutional question is whether the force was reasonable. For convicted prisoners, the Supreme Court in Hudson v. McMillian rejected a requirement that the injury be significant.
Can the officers be charged criminally as well as sued?
Yes, the two proceedings are independent. A federal prosecution under 18 U.S.C. § 242 is brought by the government and requires proof of willfulness beyond a reasonable doubt, while a civil suit is brought by the injured person and is decided on a lower burden of proof.
How long do I have to file?
Section 1983 borrows the personal injury limitations period of the state where the claim arose, and state-law claims against public entities may require earlier written notice. Because these deadlines differ by state and can be short, consult an attorney licensed in that state promptly.
Does filming the police affect an excessive force claim?
Lawful recording often produces the most useful evidence of what occurred. Doing so safely and without interfering with officers matters, and the recording itself is generally protected, as described in our guides on recording police in public.
Sources
- excessive force, Wex, Legal Information Institute
- Civil Rights Division, Law Enforcement Misconduct, U.S. Department of Justice
- Graham v. Connor, 490 U.S. 386 (1989), Justia
- Graham v. Connor, Legal Information Institute
- Use of Force, Part I, Federal Law Enforcement Training Centers
- Authorization and Standards for the Use of Force, Stanford Law School
- Tennessee v. Garner, 471 U.S. 1 (1985), U.S. Reports
- Kingsley v. Hendrickson, 576 U.S. 399 (2015), U.S. Department of Justice
- Whitley v. Albers and Hudson v. McMillian, AELE
- Resisting Arrest Bail in California
- What to Do If You’ve Been Subjected to Excessive Force by Police