In terms of filing a lawsuit for police misconduct, there are several federal and state causes of action. In terms of a federal cause of action, a claim is typically brought under 42 U.S.C. section 1983. This section provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To prevail on a claim brought under section 1983, the plaintiff must show 1) the defendant subjected the plaintiff to conduct that occurred under color of state law, 2) this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution, 3) the conduct was a proximate cause of the plaintiff’s damage, and 4) the amount of damages. Typically, the plaintiff claims that the state-actor defendant falsely arrested the plaintiff, maliciously instituted a criminal charge against the plaintiff, conducted a unreasonable search or seizure of the plaintiff’s person, vehicle, or home, or used excessive force against the plaintiff in detaining or arresting the plaintiff. Violations generally involve the Fourth and the Fourteenth Amendment, although other amendments may be at issue. “Under the color of state law” means that the acts must be done while the official was acting or purporting to act in the performance of an official duty.
There is no specific statute of limitations under section 1983 for bringing a claim under the act. The statute of limitations is the time limit by which a claim must be brought after the alleged violation occurred. Because section 1983 does not contain a statute of limitations, the state statute of limitations applies. In terms of which state statute of limitations applies, the United States Supreme Court has held that section 1983 claims are treated as tort claims for recovery of personal injuries. For example, in Iowa and Illinois, the statute of limitations for these types of tort claims is generally two years, although there are some causes of action that can be applicable which have a shorter 1 year statute of limitations.
There are also several state causes of action that a plaintiff can bring. Some causes of action include false arrest, false imprisonment, malicious prosecution, abuse of process, wrongful death, assault, and battery.
For false arrest, the plaintiff must prove a detention or restraint against that person’s will as well as the unlawfulness of the detention or restraint. In other words, the plaintiff must show that the arresting officer did not have probable cause to make an arrest—that is, reasonable grounds for believing a crime has been committed and that the person arrested has committed it. Similarly, for false imprisonment, the plaintiff must show a detention or restraint against the person’s will and the unlawfulness of the detention or restraint.
For malicious prosecution, the plaintiff must show 1) the defendant commenced a criminal proceeding or prosecution, 2) the investigation of that prosecution by the defendant, 3) the proceeding ended in the plaintiff’s favor (via acquittal or dismissal), 4) there was no probable cause for the proceeding, 5) the defendant brought the proceeding against the plaintiff with malice, and 6) the plaintiff suffered damages. Similarly, for abuse of process, the plaintiff need show 1) the defendant intentionally used a specified legal process, 2) the defendant used the legal process primarily for an improper use and not for its intended use, 3) the defendant’s use of legal process for an improper purpose was a cause of the plaintiff’s damage, and 4) the amount of damage.
For wrongful death, plaintiff files a negligence claim against the police for causing another’s death. The plaintiff may be the administrator of the deceased person’s estate, the spouse and/or surviving children of the decedent, the adult child of the decedent, and/or the parents of a deceased minor or adult child. The claim alleges that the police were negligent in causing the decedent’s death. The plaintiff must show negligence, breach of a duty, causation, and damages.
For assault, the plaintiff must prove 1) the police did an act, 2) the act was done with the intent to put the plaintiff in fear of physical pain or injury or in fear of physical contact which would be insulting or offensive, 3) the plaintiff reasonably believed the act would be carried out immediately, 4) the defendant’s act was a cause of the plaintiff’s damage, and 5) the amount of damage. Conversely, a battery occurs when 1) the defendant does an act, 2) the act was done with the intent to cause physical pain or injury or insulting or offensive bodily contact, 3) the defendant’s act resulted in physical pain or injury or insulting or offensive bodily contact, 4) the defendant’s act was a cause of the plaintiff’s damage, and 5) the amount of damage.
As stated above, in Iowa and Illinois, the statute of limitations for these various torts against the person is generally two years—that is, the suit must generally be filed within two years of when the act giving rise to the tort occurred, although there are some causes of action that can be applicable which have a shorter 1 year statute of limitations.