Civil Rights Excessive Force Claims

A claim for excessive force against a police officer or the agency employing him will be brought under one of two statutes, either 42 U.S.C. §1983 (the federal civil rights statute) or Florida Statute 768.28. Among the decisions to consider are the potential damages allowed under the two statutes. Any judgment obtained against the individual officer – whether the suit is under §1983 or pursuant to F.S. 768.28 – is a judgment against the officer personally; it does not get paid by the agency employing him. Thus, one has to consider the likelihood of collecting the judgment. Relatedly, although there is no damages cap under §1983 there is a cap of $200,000 per claim (including attorney’s fees) under §768.28. Also, fees can be no more than 25% of the recovery under §768.28.
Section 1983 claims for excessive force are analyzed under the Fourth Amendment’s prohibition against unreasonable seizures. Thus, the plaintiff must first show that he was “seized” within the meaning of the Fourth Amendment.
“Qualified immunity” is certain to be raised by the defendant police officer in a claim for excessive force under §1983. If the officer can show that no  constitutional violation occurred, or if one did occur, that it was a violation of a right that was not “clearly established” at the time of the incident, then the officer will be dismissed from the case based on qualified immunity. Directly related to the defense of qualified immunity is the fact that under Fourth Amendment law, officers are permitted to use some degree of physical coercion or threat of thereof to effect an arrest. Therefore, the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.
State law battery claims are similar to Section 1983 claims in that the same conduct that satisfies the elements of one will typically satisfy the other. The difference, however, is that a claim for excessive force under §1983 is brought against the law enforcement officer in his individual capacity whereas under F.S. 768.28 – unless the law enforcement officer acted in bad faith or with malicious purpose – a claim for battery may only be filed against the agency that employed the officer (e.g., the Palm Beach County Sheriff’s Office, the Town of Jupiter, etc.).
A common law battery claim brought under §768.28 is analyzed by focusing upon whether the
amount of force used was reasonable under the circumstances. Unlike a claim for excessive force under §1983 which is subject to the defense of qualified immunity, a claim for common law battery is determined by whether the force was reasonable under the circumstances.This is usually a question that can only be resolved by a jury.