Police Excessive Force Claims and Qualified Immunity

An excessive force claim against police is really two separate fights bundled into one case: first, whether the force used was actually unreasonable, and second — a step most people have never heard of until it decides their outcome — whether the officer gets to walk away from that finding anyway. Understanding both, and the state-level reform now changing the second one in a growing number of places, matters more here than in almost any other kind of claim on this site.

Quick answer: Excessive force is evaluated under the objective-reasonableness standard from Graham v. Connor — weighing the severity of the offense, any immediate threat, and active resistance or flight, judged at the specific moment force was used. Deadly force carries its own, stricter rule from Tennessee v. Garner: it is constitutional only where the suspect posed a significant threat of death or serious injury. Even where force is found excessive, qualified immunity can still shield the officer unless the right was already “clearly established.” A growing number of states — Colorado, New Mexico, New York City among them — have created state-law claims where qualified immunity does not apply at all, a genuinely significant, still-developing area worth checking directly for your state. Reaching the municipality itself, rather than just the officer, requires a separate Monell showing of an official policy, failure to train, or unaddressed custom.

The Spectrum of Excessive Force

“Excessive force” is not one fact pattern — it covers a wide range of police conduct, and the same underlying constitutional analysis applies across all of it: a hard takedown or tackle, pepper spray, a taser, baton strikes, a knee or arm across the neck or torso, and, at the far end, deadly force with a firearm. The objective-reasonableness standard from Graham v. Connor, 490 U.S. 386 (1989), governs the whole spectrum, weighing:

1. The severity of the crime at issue
2. Whether the person posed an immediate threat to the officer or others
3. Whether the person was actively resisting arrest or attempting to flee

Courts evaluate all three at the specific moment force was used, not at some earlier point in the encounter — a person who was initially resisting but became compliant, or was already restrained, before further force was applied is a materially different case than one where resistance was ongoing.

Deadly Force Has Its Own, Stricter Rule

Beyond ordinary Graham reasonableness, the Supreme Court set a specifically stricter standard for deadly force in Tennessee v. Garner, 471 U.S. 1 (1985). The case arose from the shooting of an unarmed, fleeing burglary suspect, and the Court held that deadly force to prevent a suspect’s escape is constitutional only where the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to the officer or others. The severity of the underlying suspected crime alone does not justify shooting someone who poses no such threat and is simply attempting to get away — a distinction that has decided a substantial share of deadly-force litigation since.

Qualified Immunity: Winning the Merits Isn’t Winning the Case

This is the single feature of these cases that surprises almost everyone. A court can conclude the force used was objectively excessive and the officer can still avoid liability, because qualified immunity shields a government official unless the specific right at issue was already “clearly established” — meaning a sufficiently similar prior case had already held that materially identical conduct violated the Constitution.

This produces results that look inconsistent on similar facts, because they often are: whether a prior case was “similar enough” is itself heavily litigated, and small factual differences can determine whether a claim survives or is dismissed at the immunity stage — before a jury ever hears the underlying facts at all. Both the merits question (was the force excessive) and the immunity question (was the right clearly established) have to be won, and they are genuinely separate fights.

States Are Now Building a Way Around It

Because states cannot abolish federal qualified immunity for a federal Section 1983 claim, reform has instead taken a different, increasingly consequential path: creating a separate state-law cause of action that qualified immunity simply does not apply to at all.

• Colorado led with SB 20-217 (2020), creating a new state civil action for constitutional rights violations by a peace officer and expressly providing that qualified immunity is not a defense to it. The law also allows individual officers to be held personally liable for up to $25,000 where they did not act in good faith, with the employing agency responsible for any amount beyond that.
• New Mexico’s Civil Rights Act (2021) eliminated qualified immunity as a defense to a claim brought under the New Mexico Constitution, while capping total government-entity liability at $2 million per claim.
• New York City’s Council passed a local law in 2021 creating a comparable civil right of action specifically against NYPD officers, eliminating qualified immunity as a defense to those particular claims under city law.

More states have introduced similar legislation since, and as of this writing, Connecticut, Massachusetts and California have legislation on this subject under active consideration — but proposed and enacted are very different things, and confirming whether your own state has actually passed a comparable law, not merely debated one, is essential before assuming it applies to you.

Reaching the Municipality: Monell Liability

Suing the individual officer is not the only, or always the most valuable, route. A claim against the municipality or department itself generally requires satisfying Monell v. Department of Social Services, 436 U.S. 658 (1978) — showing the excessive force resulted from an official policy, a failure to train, or a widespread, unaddressed custom, rather than simply one officer’s individual bad decision. A municipality has no qualified immunity defense of its own, which is part of why a successful Monell claim can reach damages an individual-officer claim alone cannot — though it is also a genuinely harder claim to prove, since it requires evidence of a pattern or institutional failure rather than a single incident. A department’s own written use-of-force policy, and any documented history of prior similar incidents it failed to address, are frequently the central evidence here.

A Different Track Entirely: Federal Agents

Everything above applies to an officer acting under color of state law — Section 1983 has no application to a federal agent at all. If the officer involved was FBI, DEA, Border Patrol, or another federal agency, an entirely different, far less certain framework applies, and after a 2022 Supreme Court decision, a Fourth Amendment claim against a federal agent may currently have no comparable damages remedy. See our guide to Bivens claims against federal agents for why identifying the officer’s actual employer matters this much.

A Related, More Specific Fact Pattern: Police K9 Deployments

Everything above applies with full force where a police K9 was the instrument of force, but that specific scenario also raises its own additional layer — a state dog-bite statute that may run alongside the federal claim, and a law-enforcement exemption in many of those statutes that does not always apply. See our dedicated guide to police K9 bite claims and the two legal tracks they raise for that specific context, including how Graham, qualified immunity and Monell liability all apply there in more detail.

Evidence That Decides These Cases

• Body camera and dash camera footage — usually the single most important evidence, and subject to limited retention periods
• The department’s written use-of-force policy, and whether it was actually followed
• The officer’s training records and disciplinary history
• Incident and use-of-force reports prepared at the time
• Bystander video and witness statements
• The department’s documented history of prior similar incidents, central to any Monell municipal liability claim

Practical Steps

1. Request body camera, dash camera and any bystander footage in writing immediately, before standard retention periods lapse.
2. Document the exact sequence of events, particularly the moment force was applied relative to any resistance, flight or compliance.
3. Get complete medical records documenting the injury, its severity and its connection to the specific force used.
4. Confirm whether your state has actually enacted a qualified-immunity-limiting law, rather than assuming a state you’ve heard about in the news has passed one.
5. Request the department’s written use-of-force policy and any record of prior similar incidents.
6. Identify whether both an individual-officer claim and a municipal Monell claim are viable, since they require different evidence and reach different pools of liability.
7. Consult an attorney experienced in civil rights and Section 1983 litigation specifically, given how procedurally distinct this area is from an ordinary personal injury claim.

Sources & Further Reading

• Graham v. Connor, 490 U.S. 386 (1989) — the objective-reasonableness standard governing a Fourth Amendment excessive force claim
• Tennessee v. Garner, 471 U.S. 1 (1985) — the stricter constitutional standard specifically governing the use of deadly force against a fleeing suspect
• Monell v. Department of Social Services, 436 U.S. 658 (1978) — the standard for municipal, rather than only individual-officer, liability under Section 1983
• 42 U.S.C. § 1983 — the federal civil rights statute providing the cause of action against a government official acting under color of law
• Colorado SB 20-217 (2020); New Mexico Civil Rights Act (2021); New York City Council local law creating a civil right of action against NYPD officers (2021) — each eliminating qualified immunity as a defense to a specific state or local cause of action, distinct from federal Section 1983 immunity
• See our guides to police K9 bite claims for how this same framework applies to a K9 deployment specifically, emergency vehicle and police pursuit claims for a related law enforcement liability context, and our companion guide to false arrest, false imprisonment and malicious prosecution claims for the related claims that focus on the legality of the arrest and prosecution themselves rather than the force used