of Excessive Force (Violation of 42 U.S.C. § 1983)
Revised to October 8,
The plaintiff claims that
the defendant violated (his/her) constitutional right not to be subjected to the
use of excessive force by a police officer. (He/She) brings this claim under a
federal law, 42 U.S. Code § 1983, that provides that a person acting under
color of state law who violates a person’s rights under the United States
Constitution can be held liable for money damages to the person whose rights
(he/she) has violated.
In order to prove this
claim, the plaintiff must prove:
defendant was acting under color of state law,
that the defendant engaged in actions that
deprived the plaintiff of (his/her) constitutional right not to be subjected
to use of excessive force, and
that the defendant’s acts were the
proximate cause of the injuries or losses claimed by the plaintiff.
The first element, acting
under color of state law, is not in dispute. Police officers get their
authority under state law, so they are acting under color of state law when they
act in their capacity as police officers.
The second element requires
more explanation. The fourth amendment to the United States Constitution
guarantees people the right not to be unreasonably seized by government
officials, including police officers. This right is violated if a police
officer subjects a person to excessive force. The right of a police officer to
stop and arrest a person necessarily carries with it the right to use some
degree of physical coercion or contact to effect the arrest. This does not
mean, however, that the officer may use excessive amounts of force.
Force is excessive, and use
of such force constitutes a violation of a person’s rights under the fourth
amendment, if the amount of force used would not be considered reasonable by a
reasonably competent police officer in the circumstances presented at the exact
time that the police officer used such force. The test is not whether the
defendant thought (his/her) use of force was reasonable, but rather it is an
objective standard: would a reasonably competent police officer consider the use
of such amount of force under the circumstances at the time the force was used?
Applying this standard
requires careful attention to the facts and circumstances of the case, including
the severity of the crime at issue, whether the plaintiff posed an immediate
threat to the safety of the officer or others, and whether the plaintiff was
actively resisting arrest or attempting to evade arrest by flight.
The reasonableness of a
particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20-20 vision of hindsight. Not every
push or shove, even if it may later seem unnecessary in the peace of the
courtroom, violates the fourth amendment. Your assessment of reasonableness
must allow for the fact that the police officer may have had to make a
split-second judgment concerning the amount of force that was necessary in
circumstances that were tense, uncertain and rapidly evolving.
The issue is whether the
force used was reasonable, not the officer’s intent or frame of mind. An
officer’s bad intentions or hostile frame of mind toward the plaintiff will not
make a fourth amendment violation out of the use of force that is a reasonable
amount of force under the circumstances. An officer’s good intentions will not
make constitutional what is, in fact, an unreasonable use of force.
[<If the claim is use of
deadly force:> In this case, the plaintiff claims that the officer used
deadly force, that is, that (he/she) fired (his/her) gun at the plaintiff. The
standard is that a police officer may use deadly force in two circumstances.
The first is if (he/she) reasonably believes that such force is necessary to
defend (himself/herself/others) from the actual use or imminent use of deadly
physical force. The second is to prevent the escape of a felony suspect if the
officer has probable cause to believe that the suspect poses a threat of serious
physical harm either to the officer or to others.]
It is these constitutional
standards, rather than the text of any state statute or any departmental
regulation, that should govern your consideration of this claim.
The facts are in dispute as
to what the circumstances were when the defendant acted.
<Explain the dispute>.
You must determine what the
circumstances were, as they presented themselves to the defendant, at the
precise time that (he/she) acted. If you find that the defendant was in danger
because of some conduct of (his/her) own, the fact that the police officer’s own
actions contributed to (his/her) being in danger has no bearing on the issue of
whether the force used was excessive. You are simply to determine what the
situation was at the time the defendant used force, and whether a reasonably
competent police officer would not have used such force under the circumstances
at the time.
The third element that the
plaintiff must establish is that the defendant’s use of force was the proximate
cause of the injuries or losses that the plaintiff sustained. An injury or loss
is proximately caused by an action if that action was a substantial factor in
bringing about the injury or the loss. The injury or loss must also be either a
direct result or a reasonably probable consequence of the act of the defendant.
In other words, the plaintiff must satisfy you that (his/her) injuries or losses
were the natural and probable consequence of the defendant’s acts, and that the
defendant ought to have foreseen that injury or loss was likely to result from
Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (l989); U.S.
Constitution, amend. IV; 42 U.S.C. § 1983.
The most frequent claim of
the use of excessive force by police officers is by assaulting an arrestee with
fists or objects. Claims of wrongful use of deadly force by firing a gun are
also common. This charge is written for the assault situation, with a variation
set forth for claims of the wrongful use of deadly force. Where the use of force
has resulted in death, the charge will need to be edited to reflect the fact
that the claim is brought by a representative of the decedent’s estate,
asserting the decedent’s constitutional right.
The elements of claims
under 42 U.S.C. § 1983 are likely equivalent to those for claims of civil
damages for violations of the Connecticut constitution, as recognized by
Binette v. Sabo, 244 Conn. 23, 710 A.2d 305 (1998), and for violations of
the fourth amendment to the United States constitution, as recognized by
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). A number of federal district
court decisions have found that the civil claims recognized by Binette
and Bivens have the same elements. See Milardo v. Middletown,
United States District Court, Docket No. 3:06 CV 01 0712009 (D. Conn. March 25,
2009) and cases cited therein. Several federal circuit courts have reached the
same conclusion for civil claims pursuant to Bivens and 42 U.S.C. §
1983. See Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987); Winterland
Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir. 1984) (“We assume for
a moment that the pleading requirements are identical . . . and that to state a
claim under either, [the plaintiff] must allege both that he has been deprived
of a right secured by the Constitution, and that the deprivation occurred under
color of law.”); Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975).