Law Explained Re: Suit Against Municipality and Police Officers Alleging Excessive Force

The Second Department explained the law relevant to a suit against police officers, including “John Does,” and a municipality alleging the excessive use of force.  A “1983” action against a municipality cannot be based solely on the actions of an employee or on the basis of respondeat superior, but an intentional tort action can.  “John Does” must be identified and served within the applicable statute of limitations:

“Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness” … . “The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'” … . Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide … . If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent” … . * * *

“A municipality is not liable under 42 USC § 1983 for an injury inflicted solely by its employees or agents” …, or “solely upon the doctrine of respondeat superior or vicarious liability” … . * * *

Unlike cases commenced under 42 USC § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees … . * * *

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they exercised due diligence in attempting to identify and serve the John Does such that the applicable limitations periods had tolled or were otherwise inapplicable … . Lepore v Town of Greenburgh, 2014 NY Slip Op 06063, 2nd Dept 9-10-14