Excessive Police Force: When is Too Much Simply Too Much?

Edwin Budge

Police officers are prohibited under the Constitution from using excessive police force. Whether police force is excessive depends on the facts and circumstances of each case.

To measure whether force was excessive, courts look to a number of factors. These include, for example, the nature and severity of the force, whether the person presented an immediate threat to the safety of officers or the public, and whether the person was actively attempting to resist arrest or escape. Courts can also look to whether the person is known to suffer from diminished mental capacity from mental illness or use of drugs. Police may have less justification for using force when they know they are dealing with someone with diminished mental capacity.

In the early 2000s, the lawyers at Budge & Heipt represented the mother and father of a young man who died after an encounter with police. The man was under the influence of psychedelic mushrooms and had jumped or fallen from a second story window. A group of Portland police officers surrounded him and gave him commands which he allegedly did not follow. In response, the officers unleashed a barrage of force: numerous strikes with police batons; the emptying of multiple cans of pepper spray on the man; and approximately ten shots with a “less lethal” gun (a.k.a. a “beanbag gun”) that fires encased shot at the approximate speed of a major league line-drive. Officers then “hog-tied” the man by cuffing his wrists behind his back, binding his ankles together, and attaching his ankles to his wrists. Banned by many police departments, the practice of hog-tying is a highly dangerous practice known to cause positional asphyxia. Hog-tying is particularly dangerous if a person is forcibly held prone (face-down) while in this position by officers who put pressure on the upper back or neck. And that is exactly what happened here. An officer held the man face down by standing on his head and neck/upper back. The man died at the scene.

The City of Portland was uninterested in settling, believing that the man had died from other causes and that its officers acted reasonably in response to a difficult situation involving a person who was not doing as he was told. The case went to trial in federal court. Although a jury found the police not liable, the lawyers at Budge & Heipt did not give up. We believed that the force was excessive as a matter of law. Thus, we filed a post-trial motion with the court, asking the court to rule that the police should be held liable for excessive force even though the jury had found otherwise. We won the argument, resulting in a highly-unusual ruling from a federal judge finding that the police had used excessive force as a matter of law.

Our work in this case proves the old adage: “It ain’t over ‘till it’s over.” Following the judge’s ruling and the publicity that followed, the City of Portland changed its position about settling the case and we were able to secure a settlement of more than $1 million. Success was only achieved through perseverance and our determination not to give up.

Edwin Budge has been representing clients in civil rights cases for more than 20 years. He focuses his energy and passion into seeking justice in police brutality cases involving serious injury or wrongful death by police or in jail or prison. Contact Budge & Heipt for a free consultation.

If you or a loved one has been a victim of serious injury and/or death at the hands of police or in jail or prison, tell us about your case.