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 officers employer to recover damages for personal injuries or wrongful death sustained during an arrest.

I.

BACKGROUND
A. Introduction
1. 2. Scope of article Privileged use of force by police officers

B.

State Law Claims

3. 4. 5. 6. 7. 8. 9.

Actions founded on negligence Actions for common-law battery Actions on official bond Actions under Section 1983Generally Assessment of reasonableness of force used Acting under color of state law Actions against federal law enforcement officers

C.

Federal Claims

1 2

This article updates and expands the treatment of the subject found in Police Officers Use of Excessive Force in Making Arrest, 9 POF 2d 363. Edward J. Hanlon has been associated with the City Counselors 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. 685

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

EXCESSIVE FORCE

E.

Proving the Case

12. 13. 14. 15.

Excessive force in use of firearm Excessive force in beating case Proving claim against employer 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. 20. 21. 22. 23.

Official immunity and qualified immunity Collateral estoppel Motion in limine Severance of defendants 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 officerDeadly 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 fORCE A. 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

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

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VI. pROOf Of ExCESSIVE fORCE: BEATING CASE A. Testimony of Plaintiff

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

B.

Testimony of Defendant Police Officer (Cross-Examination)

47. Use of force to subdue plaintiff 48. Inability to explain cause of plaintiffs injuries

VII. BIBlIOGRAphy

49. Textbooks and periodicals

TOTAl ClIENT-SERVICE lIBRARy AM JUR pROOf Of fACTS Aggravated Wrongful DetentionMalice Sufficient to Support Award of Punitive Damages, 22 POF2d 445 Alleged Victims Commission of Prior Acts of and Reputation for Violence, 15 POF2d 167 Assault and Battery, 1 POF3d 613 Lack of Probable Cause for Warrantless Arrest, 44 POF2d 229 Mistake Justifying Claim of Self-Defense, 1 POF2d 1 Police Misconduct as Municipal Policy or Custom, 13 POF3d 1 Police Officers Use of Excessive Force in Making Arrest, 9 POF2d 363 Police Officers Violent Conduct as Basis for Imposition of Governmental Liability, 29 POF2d 1 Privileged Use of Force in Self-Defense, 33 POF2d 211 Use of Excessive Force in Self-Defense, 13 POF3d 219 AM JUR 2D Enforcement 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 officers 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) 921 Am Jur Proof of Facts 3d 687

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Use of deadly force by police officer in making arrest or preventing escape, 40 Am Jur 2d, Homicide 134-138 (1968) AM JUR TRIAlS Defense of a Police Misconduct Suit, 38 Am Jur Trials 513 Police Misconduct LitigationHostage Situation, 35 Am Jur Trials 505 Police Misconduct LitigationPlaintiffs Remedies, 15 Am Jur Trials 559 Wrongful Death of Minor in Police Custody, 28 Am Jur Trials 307 AM JUR plEADING & pRACTICE fORMS Allegation 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 persons civil rights under color of law, 5A Am Jur Pl & Pr Forms, Civil Rights, Form 66 (1968) fEDERAl pRACTICE federal 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 Service Removal 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, 688 21 Am Jur Proof of Facts 3d

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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 1983 Federal Rules of Evidence, 28 USCS Appendix AM JUR lEGAl fORMS 2d Arbitration 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) ANNOTATIONS Accuseds right to discovery or inspection of records of prior complaints against, or similar personnel records of, peace officer involved in the case, 86 ALR3d 1170 Actions 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 895 Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used, 82 ALR4th 598 Construction 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 7 Defense 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 plaintiffs 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 1078 Municipal liability for personal injuries resulting from police officers use of excessive force in performance of duty, 88 ALR2d 1330 Peace officers civil liability for death or personal injuries caused by intentional force in arresting misdemeanant, 83 ALR3d 238 Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing 921 Am Jur Proof of Facts 3d 689

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personal injury or death, 60 ALR2d 873 Police action in connection with arrest as violation of Civil Rights Act, 42 USC 1983, 1 ALR Fed 519 Privilege of custodian, apart from statute or rule, from disclosure, in civil action, of official police records and reports, 36 ALR2d 1318 Res judicata or collateral estoppel effect of prior criminal proceedings on subsequent civil rights action brought under 42 USCS 1983, 68 ALR Fed 861 Right to resist excessive force used in accomplishing lawful arrest, 77 ALR3d 281 Supreme Courts views as to measure or elements of damage recoverable in federal civil rights action under 42 USCS 1983, 91 L Ed 2d 647 Supreme Courts construction of Civil Rights Act of 1871 (42 USCS 1983) providing private right of action for violation of federal rights, 43 L Ed 2d 833 Survivability of action against federal officials for damages based on alleged constitutional violation, 48 ALR Fed 587 Validity, construction, and application of statutory provisions relating to public access to police records, 82 ALR3d 19 Vicarious liability of superior under 42 USCS 1983 for subordinates acts in deprivation of civil rights, 51 ALR Fed 285 What constitutes policy or custom for purposes of determining liability of local government unit under 42 USCS 1983modern cases, 81 ALR Fed 549 When does police officers 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, 19 Acquiescence in misconduct, 11, 14 Acquittal of underlying crime, 21 Alcohol, plaintiff use, 23 Apprehension by police officer, 2, 12, 33, 37, 45 Assault and battery, 4, 13, 20, 28, 42-48 Associational rights, cause of action, 12 Attorneys fees, 25 Background, 1-23, 49

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

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

EXCESSIVE FORCE

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

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

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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. Kings 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

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). The Federal Civil Rights Act of 1871. 42 USCS 1983. 695

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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 officers 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 6 7 8 9

10

11

For further discussion of this type of claim, see Police Misconduct as Municipal Policy or Custom, 13 POF3d 1. Lee v Thomas (1976, Tex Civ App Waco) 534 SW2d 422, writ ref n r e (July 7, 1976). Sandman v Hagan (1967) 261 Iowa 560, 154 NW2d 113. Hartman v Hoernle (1918, Mo App) 201 SW 911. Annotation: When does police officers 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. 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. 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. Tennessee v Garner (1985) 471 US 1, 85 L Ed 2d 1, 105 S Ct 1694. 21 Am Jur Proof of Facts 3d

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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 14 15 Id. Annotation: Modern Status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 ALR3d 174. 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. Green v Denison (1987, Mo) 738 SW2d 861, ALR4th 3587. Id. See, for example, South Bend v Fleming (1979, Ind App) 397 NE2d 1075; Mason v Banks (1979, Tenn) 581 SW2d 621. Martin v Yeoham (1967, Mo App) 419 SW2d 937. Cucinotta v Ortmann (1960) 399 Pa 26, 159 A2d 216. 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. 921 Am Jur Proof of Facts 3d 697

16 17 18 19 20 21

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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 officers 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 selfdefense, 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 23 24 25 26 27 28 29

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. Cook v Kinzua Pine Mills Co. (1956) 207 Or 34, 293 P2d 717. Commonwealth v Gregory (1938) 132 Pa Super 507, 1 A2d 501. United States v Masel (1977, CA7 Wis) 563 F2d 322, cert den 435 US 927, 55 L Ed 2d 523, 98 S Ct 1946. See, for example, Martin v Yeoham (1967, Mo App) 419 SW2d 937. Martin v Yeoham (1967, Mo App) 419 SW2d 937. 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. 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. Ysaguirre v Hummert (1984, Mo App) 667 SW2d 741; Hellriegel v Tholl (1966) 69 Wash 2d 97, 417 P2d 362. 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. Martin v Yeoham (1967, Mo App) 419 SW2d 937. 21 Am Jur Proof of Facts 3d

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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 defendants 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 34 35 36 37 38

6 Am Jur 2d, Assault and Battery 161 (1963). Martin v Yeoham (1967, Mo App) 419 SW2d 937. 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. Carnes v Thompson (1932, Mo) 48 SW2d 903; 6 Am Jur 2d, Assault and Battery 114 (1963). See, for example, Green v Denison (1987, Mo) 738 SW2d 861, ALR4th 3587. 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.

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