legal research series: excessive force by a police officer

21 Am Jur Proof of Facts 3d 685

EXCESSIVE FORCE BY POLICE OFFICER1

EDWARD J. HANLON, J.D.2

Topic of article: Proof that a police officer used excessive force in making an arrest.

This issue may arise in a civil action in state or federal court against a police officer or the officer’s employer to recover damages for personal injuries or wrongful death sustained during an arrest.

I. BACKGROUNDA. Introduction

§ 1. Scope of article§ 2. Privileged use of force by police officers

B. State Law Claims§ 3. Actions founded on negligence§ 4. Actions for common-law battery§ 5. Actions on official bond

C. Federal Claims§ 6. Actions under Section 1983—Generally§ 7. —Assessment of reasonableness of force used§ 8. —Acting under color of state law§ 9. Actions against federal law enforcement officers

1 This article updates and expands the treatment of the subject found in Police Officer’s Use of Excessive Force in Making Arrest, 9 POF 2d 363.

2 Edward J. Hanlon has been associated with the City Counselor’s Office of St. Louis, Missouri, since 1978 and is a graduate of the St. Louis University Law School (J.D., 1977). In his current capacity as Deputy City Counselor, Mr. Hanlon oversees all litigation to which the city, its officers, or agencies is a party. He has extensive appellate experience in state and federal appellate courts and is the author of articles published in Municipal Attorney and the St. Louis Bar Journal.

686 21 Am Jur Proof of Facts 3d

21 POF3d 685 EXCESSIVE FORCE

D. Employer Liability Issues§ 10. State law liability of government employer§ 11. Employer liability under Section 1983

E. Proving the Case§ 12. Excessive force in use of firearm§ 13. Excessive force in beating case§ 14. Proving claim against employer§ 15. Use of expert witness

F. Practice Considerations§ 16. Party responsible for paying judgment§ 17. Conflict of interest§ 18. Motion in limine

G. Defense Considerations§ 19. Official immunity and qualified immunity§ 20. Collateral estoppel§ 21. Motion in limine§ 22. Severance of defendants§ 23. Evidence of intoxication or drug use

II. DAMAGES§ 24. Elements of damages; Checklist§ 25. Measure of damages in excessive force case

III. ElEMENTS Of pROOf§ 26. Proving use of excessive force; Checklist

IV. DISCOVERy§ 27. Interrogatories to individual officer—Deadly force case§ 28. —Beating case§ 29. Interrogatories to employer§ 30. Request to employer for production of documents

V. pROOf Of ExCESSIVE fORCE: USE Of DEADly fORCEA. Testimony of Passenger

§ 31. Initial encounter with police officer§ 32. Scene of shooting§ 33. Decedent unarmed and not posing threat§ 34. Use of deadly force

B. Testimony of Independent Witness§ 35. Placement of witness at scene§ 36. Decedent unarmed and not posing threat§ 37. Use of deadly force


EXCESSIVE FORCE 21 POF3d 685

C. Testimony of Expert Witness§ 38. Expert’s qualifications§ 39. Experience as expert witness§ 40. Familiarity with facts of case§ 41. Opinion that use of deadly force was not reasonable

VI. pROOf Of ExCESSIVE fORCE: BEATING CASEA. Testimony of Plaintiff

§ 42. Circumstances of arrest§ 43. Officer’s right to use force§ 44. Use of excessive force§ 45. Absence of need for self-defense§ 46. Extent of injuries

B. Testimony of Defendant Police Officer (Cross-Examination)§ 47. Use of force to subdue plaintiff§ 48. Inability to explain cause of plaintiff’s injuries

VII. BIBlIOGRAphy§ 49. Textbooks and periodicals

TOTAl ClIENT-SERVICE lIBRARy®

AM JUR pROOf Of fACTSAggravated Wrongful Detention—Malice Sufficient to Support Award of Punitive Damages,

22 POF2d 445Alleged Victim’s Commission of Prior Acts of and Reputation for Violence, 15 POF2d 167Assault and Battery, 1 POF3d 613Lack of Probable Cause for Warrantless Arrest, 44 POF2d 229Mistake Justifying Claim of Self-Defense, 1 POF2d 1Police Misconduct as Municipal Policy or Custom, 13 POF3d 1Police Officer’s Use of Excessive Force in Making Arrest, 9 POF2d 363Police Officer’s Violent Conduct as Basis for Imposition of Governmental Liability, 29 POF2d 1Privileged Use of Force in Self-Defense, 33 POF2d 211Use of Excessive Force in Self-Defense, 13 POF3d 219

AM JUR 2DEnforcement of civil rights under federal law, 15 Am Jur 2d Civil Rights § 263 et seq. (1976)Liability of officer for use of excessive force, 5 Am Jur 2d, Arrest § 114 (1962)Police officer’s defense of “privilege” to use reasonable force in making an arrest, 6 Am Jur 2d,

Assault and Battery § 148 (1963)Right of arresting officer to use force, 5 Am Jur 2d, Arrest §§ 80-84 (1962)



Use of deadly force by police officer in making arrest or preventing escape, 40 Am Jur 2d, Homicide §§ 134-138 (1968)

AM JUR TRIAlSDefense of a Police Misconduct Suit, 38 Am Jur Trials 513Police Misconduct Litigation—Hostage Situation, 35 Am Jur Trials 505Police Misconduct Litigation—Plaintiff’s Remedies, 15 Am Jur Trials 559Wrongful Death of Minor in Police Custody, 28 Am Jur Trials 307

AM JUR plEADING & pRACTICE fORMSAllegation in Civil Rights Act complaint of abusive treatment by police in making arrest, 5A

Am Jur Pl & Pr Forms, Civil Rights, Form 4 (1968)Answer by law enforcement officer alleging force used was reasonably necessary to make arrest,

22 Am Jur Pl & Pr Forms, Sheriffs, Police and Constables, Forms 145 (1992)Answer in assault and battery case that force used was reasonably necessary to make arrest 2A

Am Jur Pl & Pr Forms, Assault and Battery, Forms 283-285 (1990)Answer or motion to dismiss by law enforcement officer alleging immunity, 22 Am Jur Pl & Pr

Forms, Sheriffs, Police and Constables, Forms 143-144 (1992)Complaint, petition, or declaration alleging assault and battery by law enforcement officials, 2A

Am Jur Pl & Pr Forms, Assault and Battery, Forms 101-105 (1990)Complaint, petition, or declaration alleging assault, battery, and excessive use of force by law

enforcement officials, 22 Am Jur Pl & Pr Forms, Sheriffs, Police and Constables, Forms 131, 133-137 (1992)

Defense in assault and battery case that deadly force was necessary to prevent escape, 2A Am Jur Pl & Pr Forms, Assault and Battery, Form 286 (1990)

Jury instructions regarding use of force reasonably necessary to make arrest, 2A Am Jur Pl & Pr Forms, Assault and Battery, Form 287-288 (1990); 22 Am Jur Pl & Pr Forms, Sheriffs, Police and Constables, Form 146 (1992)

Jury instructions regarding violation of arrested person’s civil rights under color of law, 5A Am Jur Pl & Pr Forms, Civil Rights, Form 66 (1968)

fEDERAl pRACTICEfederal procedure, l Ed:

Diversity jurisdiction of federal district courts, 1 Federal Procedure, L Ed, Access to District Courts §§ 1:34 et seq. (1981)

Federal cause of action against federal agent for unauthorized conduct as matter of federal common law, 8 Federal Procedure, L Ed, Courts and Judicial System § 20:618 (1992)

Federal Rules of Evidence, see current volume of Federal Procedure Rules of ServiceRemoval of action to federal court, 29 Federal Procedure, L Ed, Removal of Actions §§ 69:1 et

seq. (1984)Suits under 42 USCS § 1983, 6 Federal Procedure, L Ed, Tort Claims Against the United

States §§ 73:1 et seq. (1985)federal procedural forms:

Complaint for deprivation of civil rights under 42 USCS § 1983 for unlawful arrest, search,



incarceration, and abusive treatment, 5 Federal Procedural Forms, Civil Rights § 10:41 (1976)

Complaints against United States under Federal Tort Claims Act, 15A Federal Procedural Forms, Tort Claims Against United States §§ 63:61 et seq. (1985)

Federal court procedural guide and checklist; federal rules timetable; 5 Federal Procedural Forms (1976 and 1992 supra)

General complaints for use in federal court, 1 Federal Procedural Forms, Actions in District Court §§ 1:456-1:458 (1975)

Petitions for removal, and related pleadings, 14 Federal Procedural Forms, Removal of Actions §§ 58:21 et seq. (1978)

federal Statutes:Civil Rights Act, 42 USCS § 1983Federal Rules of Evidence, 28 USCS Appendix

AM JUR lEGAl fORMS 2dArbitration agreements and other forms for the arbitration of current disputes, 2A Am Jur

Legal Forms 2d, Arbitration and Award §§ 23:101 et seq. (1990)Settlement agreements, 5 Am Jur Legal Forms 2d, Compromise and Settlement §§ 63:31 et

seq. (1988)

ANNOTATIONSAccused’s right to discovery or inspection of records of prior complaints against, or similar

personnel records of, peace officer involved in the case, 86 ALR3d 1170Actions of off-duty policeman acting as private security guard as actions “under color of state

law” actionable under Civil Rights Act of 1871 (42 USCS § 1983), 56 ALR Fed 895Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness

of force used, 82 ALR4th 598Construction and application of Federal Tort Claims Act provision excepting from coverage

claims arising out of assault and battery (28 USCS § 2860(h)), 88 ALR Fed 7Defense of good faith in action for damages against law enforcement official under 42 USCS

§ 1983, providing for liability of person who, under color of law, subjects another to deprivation of rights, 61 ALR Fed 7

Liability of supervisory officials and governmental entities for having failed to adequately train, supervise, or control individual peace officer who violate plaintiff’s civil rights under 42 USCS § 1983, 70 ALR Fed 17

Liability, under 42 USCS § 1983, for injury inflicted by dogs under control or direction of police, 102 ALR Fed 616

Modern status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 ALR3d 174

Modern status of rules as to right to forcefully resist illegal arrest, 44 ALR3d 1078Municipal liability for personal injuries resulting from police officer’s use of excessive force in

performance of duty, 88 ALR2d 1330Peace officer’s civil liability for death or personal injuries caused by intentional force in arresting

misdemeanant, 83 ALR3d 238Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing



personal injury or death, 60 ALR2d 873Police action in connection with arrest as violation of Civil Rights Act, 42 USC § 1983, 1 ALR

Fed 519Privilege of custodian, apart from statute or rule, from disclosure, in civil action, of official

police records and reports, 36 ALR2d 1318Res judicata or collateral estoppel effect of prior criminal proceedings on subsequent civil rights

action brought under 42 USCS § 1983, 68 ALR Fed 861Right to resist excessive force used in accomplishing lawful arrest, 77 ALR3d 281Supreme Court’s views as to measure or elements of damage recoverable in federal civil rights

action under 42 USCS § 1983, 91 L Ed 2d 647Supreme Court’s construction of Civil Rights Act of 1871 (42 USCS § 1983) providing private

right of action for violation of federal rights, 43 L Ed 2d 833Survivability of action against federal officials for damages based on alleged constitutional

violation, 48 ALR Fed 587Validity, construction, and application of statutory provisions relating to public access to police

records, 82 ALR3d 19Vicarious liability of superior under 42 USCS § 1983 for subordinate’s acts in deprivation of

civil rights, 51 ALR Fed 285What constitutes policy or custom for purposes of determining liability of local government

unit under 42 USCS § 1983—modern cases, 81 ALR Fed 549When does police officer’s use of force during arrest become so excessive as to constitute

violation of constitutional rights, imposing liability under Federal Civil Rights Act of 1871 (42 USCS § 1983), 60 ALR Fed 204

Index to Annotations:For additional annotations, see ALR Index Arrest; Assault and Battery; Constables; Deadly

Force; Death and Death Actions; Deputies; Force and Violence; Marshals; Police and Law Enforcement Officers.

AUTO-CITE®Cases and annotations referred to herein can be further researched through the Auto-Cite®

computer-assisted research services. Use Auto-Cite to check citations for form, parallel references, prior and later history, and annotation references.

INDEx

Absolute immunity, § 9, 19Acquiescence in misconduct, § 11, 14Acquittal of underlying crime, § 21Alcohol, plaintiff use, § 23Apprehension by police officer, § 2, 12, 33, 37, 45Assault and battery, § 4, 13, 20, 28, 42-48Associational rights, cause of action, § 12Attorneys’ fees, § 25Background, § 1-23, 49



Battery, § 4, 13, 20, 28, 42-48Beatings, generally, § 4, 13, 28, 42-48Bibliography, § 49Bond of officer, state law claims, § 5Book list, research references, § 49Breach of officer’s bond, § 5Bystander testimony, deadly force, § 35-37Causal connection, § 14, 15, 48Chances of success, § 1Character, violence, § 18Checklists, § 24, 26Circumstances of arrest, beating case, § 42Civil rights actions, § 6-8, 11Clubbing suspect, § 4, 13, 28, 42-48Collateral estoppel, § 20Collection of judgment, likelihood, § 16Color of state law, § 6, 8, 9Common-law battery, state law claims, § 4Condonation of misconduct, § 11, 14Conflicts of interest, § 17Constitutionally significant test, § 7Cross-examination of officer, beating case, § 47, 48Damages, § 9, 16, 21, 24, 25Deadly force, generally, § 12, 27, 31-41Defendant police officer testimony, beating case, § 47, 48Defense considerations, generally, § 20-23Defense of self or others, § 2, 4, 45Definitions, § 1Discovery, § 27-30Discretionary duties, immunity, § 3Disfigurement, damages, § 25Document production, employer liability, § 30Drug use by plaintiff, § 23Drunkenness of plaintiff, § 23Earning capacity impaired, damages, § 25Elements of damages, checklist, § 24Elements of proof, checklist, § 26Eleventh Amendment, § 25Emotional losses, cause of action, § 12Employer liability, § 9-11, 14, 29, 30Estoppel to raise issue, § 20Exclusion of evidence, § 18, 21Execution of judgment, likelihood, § 16



Exemplary damages, § 9, 21, 25Experience as expert, deadly force, § 39Expert witness, § 15, 38-41Extent of injury, plaintiff testimony, § 6, 7, 13, 46Eyewitness testimony, § 31-37Familiarity with facts of case, expert witness, § 40Family members, standing to sue, § 12Federal civil rights actions, § 6-8, 11Federal law enforcement officers, § 9Federal Tort Claims Act, § 9Fidelity bond, state law claims, § 5Fighting words, § 4Firearm use, § 12, 27, 31-41Flight to avoid arrest, § 2, 12, 13Following orders, § 19Fourth Amendment, § 6, 7, 9, 12FTCA, § 9Gun use, § 12, 27, 31-41Hiring negligence, § 10History of misconduct, § 11, 14Hitting suspect, § 4, 13, 28, 42-48Imminent threat test, § 2Immunity from liability, § 9, 10, 11, 19, 25Inability to explain cause of injury, officer testimony, § 48Indemnification of officer, § 16Initial encounter, deadly force, § 31Insurance against acts of officers, § 16Intangible losses, cause of action, § 12Interest in subject matter, § 17Interrogatories, § 27-29Intimidation of police officer, § 2, 12, 33, 37, 45Intoxication of plaintiff, § 23Introduction to article, § 1, 2Jurisdiction of state law claims, § 6King incident, influence, § 1Knowledge of misconduct, § 11, 14Lack of need of self-defense, plaintiff testimony, § 45Laying foundation, expert witness, § 38Likelihood of success, § 1Limine motions, § 18, 21Line of duty immunity, § 3Loss of earnings, damages, § 25Malice, § 21



Marshal as included by police, § 1Master and servant, employer liability, § 9-11, 14, 29, 30Measure of damages, § 25Medical expenses, damages, § 25Motion in limine, § 18, 21Narcotic use by plaintiff, § 23Necessity of use of force, § 47Negligence, state law claims, § 3, 10Nominal damages for rights violation, § 25Objective reasonableness test, § 7Off-duty officer, § 8Official bond, state law claims, § 5Official immunity, § 9, 19Opinion as to reasonableness of using deadly force, § 15, 41Other crimes, suppression, § 18, 21Pain and suffering, damages, § 25Passenger testimony, deadly force, § 31-34Pattern of conduct, necessity of showing, § 11-14Payment of judgment, responsible party, § 16Periodicals, § 49Personal liability of police officer, § 3, 9Placement of witness at scene, § 35Plaintiff testimony, beating case, § 42-48Policy of employer, § 11, 14, 17Posing threat, § 2, 12, 33, 37, 45Practice considerations, generally, § 16-23Pretrial conference, § 17Prior misconduct, § 11, 14Privileged use of force, § 2Probable cause, § 2Production of documents, employer liability, § 30Punitive damages, § 9, 21, 25Qualification of expert, deadly force, § 38Qualified immunity, § 19Reasonableness of force, § 2, 4, 7, 20, 41, 47Reasonable person standard, § 19Reputation for violence, plaintiff, § 18Request for production of documents, employer liability, § 30Research references, § 49Resisting arrest, plaintiff, § 20Respondeat superior, § 9-11, 14, 29, 30Responsible party, payment of judgment, § 16Retaining in employment, negligence, § 10



Right to use force, plaintiff’s testimony, § 43Rodney King incident, influence, § 1Satisfaction of judgment, responsible party, § 16Scene of shooting, deadly force, § 32, 35Scope of article, § 1Self-defense, § 2, 4, 45Serious injury, § 6, 7, 13, 46Severance of defendants, § 22Sheriff as included in police, § 1Shooting of suspect, § 12, 27, 31-41Significant injury test, § 6, 7Single incident as predicate for liability, § 11Sovereign immunity, § 10, 25Specials, § 25Standing to sue, wrongful death, § 12State law claims, generally, § 3-6, 8, 10State’s rights, § 25Striking suspect, § 4, 13, 28, 42-48Subduing plaintiff, necessity, § 47Supervision negligence, § 14Suppression of evidence, § 18, 21Surety bond of officer, action on, § 5Survivor’s standing to sue, § 12Test for reasonableness, § 2Textbooks, § 49Threat, plaintiff posing, § 2, 12, 33, 37, 45Training negligence, employer, § 10, 11, 14, 15Transferred intent rule, § 4Unarmed suspect, § 33, 36Undertaking of officer, state law claims, § 5Unreasonable use of force, § 2, 4, 7, 20, 41, 47Violent character of plaintiff, § 18Weapon, deadly force, § 12, 27, 31-41Win-loss record, § 1



I. BACKGROUND

A. Introduction

§ 1. Scope of article

No single incident in modern history has aroused as much public scrutiny of police conduct as had the beating of motorist Rodney King by Los Angeles police officers. Many people have claimed to be victims of brutality, but relatively few have been successful in establishing such a claim in court. The failure of plaintiffs to successfully prosecute actions for damages against police officers and the officers’ employers may be attributable in part to the stark contract between the parties. The police officer is the person the public relies on to uphold the law and provide protection from crime. On the other hand, the plaintiff in such cases is usually an unsympathetic victim. The plaintiff may be in prison and will often have a criminal record or at least have been a suspect in some crime. Furthermore, the defendant police will almost always allege that the plaintiff resisted arrest and had to be subdued.

The Rodney King case, absent the now-famous videotape, is a perfect example. King’s story would have been that he had led police on a high-speed chase; when his car was stopped, he tried to flee, was caught and handcuffed; and then the police officers beat him. The police officers’ story would have been that Mr. King had led them on a high-speed chase; he was forcibly stopped; he struggled and kicked at the police officers as they tried to handcuff him; and that all of his injuries occurred during the struggle to apprehend him.

One picture, however, is worth a thousand words, and the dramatic film depicting Los Angeles police officers repeatedly striking Rodney King while he was on the ground appears to demonstrate that some allegations of excessive force by police officers may be meritorious. While it is difficult to prove the use of excessive force, it is not impossible to do so. The public awareness of potential police misconduct generated by the Rodney King incident may make it less difficult to prove such cases in the future, though still not easy.3

The major focus of this article is on state law claims arising out of the use of excessive force by police officers and federal civil rights actions brought under Section 1983.4 In addition, the liability of federal law enforcement officers is discussed.

As used in this article, the term police officer includes a sheriff, deputy, marshal, or any other law enforcement officer, regardless of the actual title of the officer. Primary attention is directed to imposing liability on the individual police officer who used excessive force. In

3 Nonetheless, a study of verdicts in Southern California show roughly the same win-loss ratio both before and after the Kind incident: law enforcement prevailed two out of every three times over citizens who claimed officers physically injured them. 15 National Law Journal 1 (March 8, 1993).

4 The Federal Civil Rights Act of 1871. 42 USCS § 1983.



addition, the liability of supervisory personnel and the government employer is discussed.5

§ 2. privileged use of force by police officers

Any citizen may use force in self-defense6 or in defense of others,7 and any citizen may use a limited amount of force to protect property.8 Police officers can, of course, do so as well, but they may also utilize force to apprehend individuals whom they have probably cause to believe have engaged in unlawful conduct, even if the individuals are not presently threatening such conduct. In other words, police officers are privileged to use force against an individual who is not then endangering persons or property. However, this right extends only to the use of reasonable force. What constitutes reasonable force will always depend on the circumstances of the particular case.9 Deadly force may be reasonable when the officer is seeking to subdue an armed individual who is threatening the officer or members of the public. On the other hand, in a situation where the individual is handcuffed and willingly following the police officer’s directives, even single punch may be unreasonable.10

There are some established parameters on what constitutes reasonable force. For years, many states subscribed to the rule that a police officer was entitled to use deadly force to stop a person suspected of having committed a felony.11 However, the so-called “fleeing felon” rule was held to be unconstitutional by the U.S. Supreme Court in 1985.12 There are many crimes that are defined as felonies by state law but that do not involved any threat of potential physical harm to members of the public, such as writing bad checks. If a person writes a bad check and runs from the police, should the police be entitled to shoot that

5 For further discussion of this type of claim, see Police Misconduct as Municipal Policy or Custom, 13 POF3d 1.

6 Lee v Thomas (1976, Tex Civ App Waco) 534 SW2d 422, writ ref n r e (July 7, 1976).7 Sandman v Hagan (1967) 261 Iowa 560, 154 NW2d 113.8 Hartman v Hoernle (1918, Mo App) 201 SW 911.9 Annotation: When does police officer’s use of force during arrest become so excessive as to

constitute violation of constitutional rights, imposing liability under Federal Civil Rights Act of 1871 (42 USCS § 1983), 60 ALR Fed 204.

10 In Calamia v New York (1989, CA2 NY) 879 F2d 1025, the court held that pushing a suspect to the floor and applying handcuffs too tightly and leaving them that way for several hours could constitute the use of excessive force.

11 On the other hand, it has generally been recognized that a police officer has less privilege to use force in apprehending an alleged midemeanant than an alleged felon. See, for example, Mason v Banks (1979, Tenn) 581 SW2d 621.Annotation: Peace officers civil liability for death or personal injuries caused by intentional force in arresting misdemeanant, 83 ALR3d 238.

12 Tennessee v Garner (1985) 471 US 1, 85 L Ed 2d 1, 105 S Ct 1694.



person with impunity? The Supreme Court said no in Tennessee v. Garner,13 effectively limiting the use of deadly force to those situations where the suspect poses an imminent threat to the police or other citizens.14

B. State law Claims

§ 3. Actions founded on negligence

In most states, a person injured by the negligent use of force by an officer cannot maintain an action for negligence against the officer.15 Police officers are generally entitled to official immunity when acting in the line of duty. Under the doctrine of official immunity, public officials are shielded from liability for negligent performance of their discretionary duties.16 The decision to use force and the amount of force employed has been held to be a discretionary matter, entitling a police officer to the protection of official immunity.17

§ 4. Actions for common-law battery

A police officer, like a private citizen, can be subject to liability for committing a battery by using excessive force.18 Battery, in the law of torts, is a cause of action distinct from civil assault. A civil assault is an unlawful attempt to inflict an injury on another person.19 Civil assault requires more than a mere threat to inflict physical injury: there must be some action to do violence that fails in its accomplishment.20 Battery, on the other hand, is unlawful harmful or offensive contact with the person of another, made with the intent to cause the harmful or offensive contact with the plaintiff or a third person, when such contact is not consented to or otherwise privileged.21 It has been said that a battery is an

13 Id.14 Annotation: Modern Status: right of peace officer to use deadly force in attempting to arrest

fleeing felon, 83 ALR3d 174.15 There is, however, significant support to the contrary. See, for example, Greggo v Albany

(1977, 3d Dept) 58 App Div 2d 678, 395 NYS2d 735.See generally, Annotation: Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death, 60 ALR2d 873.

16 Green v Denison (1987, Mo) 738 SW2d 861, ALR4th 3587.17 Id.18 See, for example, South Bend v Fleming (1979, Ind App) 397 NE2d 1075; Mason v Banks

(1979, Tenn) 581 SW2d 621.19 Martin v Yeoham (1967, Mo App) 419 SW2d 937.20 Cucinotta v Ortmann (1960) 399 Pa 26, 159 A2d 216.21 Restatement (Second) of Torts §§ 13 (harmful contact), 18(1) (offensive contact) (1965);

Smith v Smith (1940) 194 SC 247, 9 SE2d 584.See generally, Assault and Battery, 1 POF3d 613.



assault that has been consummated.22 Actual injury is not a necessary element of the tort of battery.23 Any unlawful contact with the person of another may constitute a battery, including any touching done in a “rude, insolent, or angry manner.”24 Even spitting can constitute a battery.25

Most states hold that an action for battery cannot arise out of mere negligence by the defendant.26 Absent in such instances is the requisite intent to cause the harmful or offensive contact.27

While a police officer’s use of force may be privileged, that privilege extends only to the use of reasonable force.28 Beyond that, a police officer is liable in the same manner as an ordinary citizen. Because a police officer is privileged to use only reasonable force in affecting an arrest, the plaintiff bears the burden of proving that the force used was unreasonable or excessive.29

Frequently, the defendant police officer will contend that the plaintiff resisted arrest and committed an assault and battery on the officer. In this instance, the plaintiff will have to overcome the defenses of self-defense, consent,30 or both. When a party is entitled to use self-defense, liability may still arise when more force is used than was reasonably necessary.31

The need for self-defense need not be based in fact, as long as the defendant reasonably believed self-defense was necessary.32 The danger that gave rise to the belief need not have

22 Martin v Yeoham (1967, Mo App) 419 SW2d 937; United States v Masel (1977, CA7 Wis) 563 F2d 322, cert den 435 US 927, 55 L Ed 2d 523, 98 S Ct 1946.

23 Cook v Kinzua Pine Mills Co. (1956) 207 Or 34, 293 P2d 717.24 Commonwealth v Gregory (1938) 132 Pa Super 507, 1 A2d 501.25 United States v Masel (1977, CA7 Wis) 563 F2d 322, cert den 435 US 927, 55 L Ed 2d 523, 98

S Ct 1946.26 See, for example, Martin v Yeoham (1967, Mo App) 419 SW2d 937.27 Martin v Yeoham (1967, Mo App) 419 SW2d 937.28 Mason v Banks (1979, Tenn) 581 SW2d 621; Watts v Aetna Casualty & Surety Co. (1975, La

App 2d Cir) 309 So 2d 402, cert den (La) 313 So 2d 601 and cert den (La) 313 So 2d 601.29 Neal v Helbling (1987, Mo App) 726 SW2d 483, 82 ALR4th 587; Wall v Zeeb (1967, ND) 153

NW2d 779.Annotation: Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used, 82 ALR4th 598.

30 Ysaguirre v Hummert (1984, Mo App) 667 SW2d 741; Hellriegel v Tholl (1966) 69 Wash 2d 97, 417 P2d 362.

31 Watts v Aetna Casualty & Surety Co. (1975, La App 2d Cir) 309 So 2d 402, cert den (La) 313 So 2d 601 and cert den (La) 313 So 2d 601; Livesay v Ambassador Operating Co. (1936, Mo App) 92 SW2d 961.

32 Martin v Yeoham (1967, Mo App) 419 SW2d 937.



actually existed; it is sufficient that the person resorting to self-defense reasonably believed in the existence of such a danger at the time. Such reasonable belief is sufficient even when it is mistaken.33 The test of reasonableness is an objective one. The defendant’s own personal judgment at the time is not controlling.34 However, words alone do not justify a party in committing a battery under a claim of self-defense.35

Although beyond the scope of this article, it should be noted that an innocent bystander can maintain an action for battery against a police officer under the “transferred intent” rule.36 In this situation, the plaintiff must demonstrate that the force used would have been unreasonable if it had been inflicted on the intended target. This situation typically arises when an officer shoots at a suspect and injures a third party. The fact that the officer may have been negligent in shooting the wrong person will usually not render the officer liable to the injured party, as most states clothe police officers with official immunity in such situations.37 However, official immunity generally does not apply to intentional torts such as battery. Hence, under the transferred intent rule, if the plaintiff can establish that the force used would have been unreasonable if applied to the intended party, the plaintiff can establish a cause of action for battery against the officer.38

TO BE CONTINUED...

33 6 Am Jur 2d, Assault and Battery § 161 (1963).34 Martin v Yeoham (1967, Mo App) 419 SW2d 937.35 Watts v Aetna Casualty & Surety Co. (1975, La App 2d Cir) 309 So 2d 402, cert den (La) 313

So 2d 601 and cert den (La) 313 So 2d 601.36 Carnes v Thompson (1932, Mo) 48 SW2d 903; 6 Am Jur 2d, Assault and Battery § 114

(1963).37 See, for example, Green v Denison (1987, Mo) 738 SW2d 861, ALR4th 3587.38 See Injury to Bystander by Use of Firearm Against Fleeing Criminal, 15 POF3d 1.

Annotation: Liability of municipal corporation for shooting of bystander by law enforcement officer attempting to enforce law, 76 ALR3d 1176.

legal research series: excessive force by a police officer

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