Police, as a general rule, are there to help. It’s their job to protect and serve. But sometimes, in real life, things can get out of hand. Whether it’s because the officer is having a bad day or simply because they are in a bad mood, the incidence of police brutality is on the rise in the United States. Here’s our guide to Chicago, the police, and excessive force: what you need to know to keep yourself safe.
Civil Versus Criminal Suit
Police brutality can be both a criminal offense and a civil lawsuit. In some circumstances, the officer may be charged criminally, especially if the Civilian Office of Police Accountability (COPA), which replaced the Police Review Authority as the oversight organization for the Chicago Police, finds misconduct. If you were assaulted by an officer of the law though, sometimes your best option may be to file a civil claim for money damages against the officer. The claim may also involve a “tort” – a legal term for a civil wrong – of negligence. The primary law under which you are protected is the Civil Rights Act of 1871 (42 U.S.C. § 1983). According to the act, the use of excessive force by a police officer violates the victim’s constitutional rights and may be grounds for a valid claim under section 1983 of the Act.
Excessive force by a police officer is illegal. This is obvious. The problem is that it can be difficult to define “excessive,” as the term varies depending on the situation. Typically, police officers are permitted to use whatever force is necessary to make an arrest and to defend themselves. The officer must use their discretion to determine what type of force is reasonably necessary. In a court of law, a judge may decide that the police officer did what any other reasonable individual would have done in the same given situation. This view may make it very difficult to prove police brutality, as it is generally the officer’s word against the victim’s word.
Additionally, as mentioned above, how much force an officer may use depends upon the given situation. If the suspect resists arrest, the officer may use more force than if the suspect was compliant. If the suspect threatens the officer with death or bodily harm, the officer may be permitted to use deadly force. If the suspect flees from the officer, how much force the officer uses may depend upon whether or not the person in question is believed to have committed a felony or a misdemeanor.
Burden Of Proof
The burden of proof is usually on the petitioner in a civil suit. Unlike in a criminal trial, in which the prosecution must prove the defendant is guilty beyond a reasonable doubt, the petitioner in a civil suit must prove that the defendant is liable by a preponderance of the evidence (roughly meaning “more likely than not”). In the case of an officer sued for excessive force, the citizen may need to prove that there was a legal justification for his or her actions.
While the petitioner is not required to prove guilt beyond a reasonable doubt in a civil suit, their burden of proof may be much stricter than normal when an officer on duty is involved. In many cases, there may be the presumption that the officer acted with the amount of force necessary to make the arrest. Some courts might require the plaintiff to prove that the officer used excessive force by “clear and convincing evidence,” a standard much higher than “by a preponderance of the evidence,” but lower still than “beyond a reasonable doubt.”
While you do not necessarily have to be innocent of the crime for which you were arrested, innocence may help in the event that an officer injured you and in regard to the number of money damages which may be available.
If you live in Chicago and you or someone you know has been a victim of excessive force by the police, give Mitchell S. Sexner & Associates LLC a call at (312) 644-0444. We know what it takes to keep you properly protected and will fight for your rights. No fees are ever charged unless successful.