Police and Excessive Force Claims in Texas

Police and Excessive Force Claims in Texas

Every so often a client will call me or send me an email about this topic. It usually involves someone coming into contact with the police and feeling that their rights were violated. When it comes to the police and excessive force claims in Texas, there is a high hurdle to overcome. Day in and day out the police have to deal with a variety of situations. Some of the situations require the use of force when someone gets aggressive, resists arrest, or breaks the law. Very often, when the police have to make an arrest, the person doesn’t go willingly. Let’s look at the example of when officers are executing a Warrant of Arrest or Search Warrant in Texas. In the heat of the moment, when someone gets arrested, they can feel like police have crossed the line or overstepped their boundaries. But let’s start at the beginning.

What is an Excessive Use of Force Claim in Texas?

An excessive use of force claim originates under two parts of the law. The first part of the law deals with your Fourth Amendment right to be free from unreasonable seizures (arrest or detainment). The second part of the law deals with State, County, or Municipal police departments violating your Federal Constitutional Rights under 28 U.S.C §1983. This is also known as a 1983 claim.

What is unreasonable force by police? 

This is where the facts of your specific case come into play. The Courts will review your case under a totality of the circumstances view. Police are given a great deal of discretion in the methods used to arrest someone. This isn’t to say police don’t receive training. Police receive a good deal of training on use of force. However, Courts give the police a great deal of leeway because they recognize that officers usually have to make split second judgments in situations that change on the fly. The situations are usually tense and can change in the blink of an eye. A great deal depends on what the officers knew at the time of arrest and what was happening at the time of arrest.

Factors the Court Looks at When Reviewing Excessive Force Claims

  1. What type of crime were the police responding to? How severe was it?
  2. Was the person an immediate threat to himself, others, and police?
  3. Was the person resisting arrest, trying to get away, and how?
  4. How much time did the police have to assess the situation and choose what force to use?
  5. What kind of force and how much force did police use?
  6. Where any other options available for police to use, other than what they used?
Qualified Immunity, Police, and Excessive Force Claims in Texas

Before you run out and think about suing the police department for excessive force, you’ll have to get over the hurdle of Qualified Immunity. In most situations, the claim of excessive force is without justification and if it is, police are protect by the legal theory of Qualified Immunity. Qualified Immunity protects police departments and individual officers from being sued in Court. It’s not completely bulletproof from claims of excessive force, but it is a high hurdle.

To overcome the Qualified Immunity, the person suing would have to show that the officer violated a clearly established Constitutional Right or law that a reasonable person would have known about. This involves reviewing the officer’s actions for reasonableness. If an officer intentionally violates someone’s rights, the individual officer and the department may be liable in a lawsuit. As I said before, police receive training on use of force and the evolving area of Constitutional Rights.


When it comes to Police and Excessive Force Claims in Texas, you are facing an uphill battle. Generally speaking, very few claims succeed due to the defense of Qualified Immunity. Officers are given a great deal of latitude in judgment in the type of force used and the amount of force used to apprehend someone. The reason for this latitude are the factors listed above from 1-6 in evaluating the conduct of the police. Between this wide latitude afforded police and the high hurdle of Qualified Immunity, pursuing 1983 claims is not recommended in most cases. Consulting with an Excessive Force Claims lawyer is your best bet before making a decision.

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