When Excessive Force in Making an Arrest Warrants a Civil Rights Claim

Excessive Force in Making an Arrest - Common Law Claim for Battery

North Carolina State Civil Tort

A law enforcement officer may use excessive force in making an otherwise lawful arrest. When an officer does so, he or she has committed the common law offense of Battery against the person who has been arrested. The use of excessive force in making an arrest may give rise to either a North Carolina common law claim for Battery or a federal civil rights claim under Title 42, Section 1983, of the United States Code, or both.

A battery is a civil tort (“wrong”) in North Carolina which supports the filing of a lawsuit to seek recovery of damages for the civil offense committed.

The issue to be decided by the jury at trial is, “Did the defendant (officer) commit a battery upon the plaintiff during his or her arrest of the plaintiff?”

On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, two things.

(1) First, that the defendant committed a battery upon the plaintiff.

The law defines a battery as intentional bodily contact that occurs without the consent of the person being contacted and either actually offends a reasonable sense of personal dignity or causes physical pain or injury.

(2) And Second, that the battery occurred during an arrest.

An individual has been arrested when a law enforcement officer interrupts the individual’s activities and significantly restricts his freedom of action. An arrest requires either physical force or, where that is absent, submission to the assertion of authority. An arrest is a more significant restriction of an individual’s freedom than a seizure. A seizure becomes an arrest when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.

A seizure occurs when a law enforcement officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Circumstances that might indicate a seizure include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice suggesting that compliance is mandatory.

Circumstances that do not amount to a seizure include the following: an officer approaching an individual in a public place and asking questions, an officer following an individual on foot, or an officer following an individual’s vehicle.

The jury will be instructed by the presiding judge that if the jury finds, by the greater weight of the evidence, that the defendant committed a battery upon the plaintiff and that such battery occurred during the defendant’s arrest of the plaintiff, then it would be the duty of the jury to answer “Yes” in favor of the plaintiff. If, on the other hand, the jury fails to so find, then it would be the duty of the jury to answer “No” in favor of the defendant.

These are very complex issues that are best analyzed by skilled legal counsel. What is important is that, if you have a situation you believe may be “actionable” (may give rise to a lawsuit for excessive force in an arrest, battery, or any other type of civil wrong or claim), then you should seek the advice of an attorney without delay.

Call the Byers Law Office today.

Rev. 10/03/23.