Suing the Police for Emotional Distress

Anyone who has had a bad experience with the police—even one not resulting in physical injury—has probably wondered whether any remedy exists. Many want to know whether they can sue. The answer to that question (as with so many legal queries) is, "It depends."

Can I Sue the Police for Emotional Distress?

Citizens can sue the police for infliction of emotional distress in one of two instances, when an officer:

• intentionally or recklessly acts in a way that causes emotional injury (intentional infliction of emotional distress), or
• causes emotional distress through a negligent act (negligent infliction of emotional distress).

These cases are tough to win, though. Not only is the citizen's burden a high one to meet, but also, if the court determines that the conduct was within the scope of the officer's law-enforcement duties, that officer is generally immune and can't be held liable.

Suing the Police for Intentional Infliction of Emotional Distress (IIED)

Someone alleging that an officer intentionally caused emotional distress must generally show that:

• the officer's conduct was extreme and outrageous
• the officer acted intentionally or recklessly, and
• the conduct caused severe emotional distress.

What Counts as Extreme and Outrageous Conduct?

Conduct qualifies as extreme and outrageous when it would cause a reasonable person in a similar circumstance to suffer extreme emotional distress; it must be more than annoying, offensive, or humiliating. Conduct is extreme and outrageous when it goes beyond all possible bounds of decency; it is behavior that society won't tolerate.

Courts decide whether conduct is extreme and outrageous on a case-by-case basis. The court may consider whether:

• the officer knew that the plaintiff was particularly susceptible to emotional distress
• there was a pattern of conduct or it was an isolated incident, or
• the officer was in a position of power (as officers often are).

In one federal case, for example, a woman offered support to her husband, who was under arrest and being interrogated for the murder of her three-year-old daughter. The detective who heard her offer of support yelled at her that her husband killed the child and that her husband never loved her or her daughter. The officer was in a position of authority, and the mother was particularly susceptible to emotional distress at that time. The conduct was sufficiently extreme and outrageous for an intentional-infliction-of-emotional-distress claim. (Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010).)

What Counts as an Intentional or Reckless Act?

Extreme and outrageous conduct is actionable if the officer either intended to cause or recklessly disregarded the likelihood that the conduct would cause emotional distress. Conduct that is simply mean, spiteful, or uncaring normally isn't sufficient.

For example, in another federal case, an officer was attempting to arrest a suspect for passing checks on a closed account. The officer allowed the suspect's mother to go into the house and retrieve bank records proving that the account wasn't closed. When she attempted to show the documents to the officer, he told her that she shouldn't interfere in police business and threw her against a car, injuring her neck and back. The court held that the officer's conduct was outrageous and done with the virtual certainty that emotional distress would result. (Thomas v. Frederick, 766 F.Supp. 540 (W.D. LA. 1991).)

What Counts as Severe Emotional Distress?

Emotional distress is severe when:

• a reasonable person in the same position as the plaintiff would be unable to cope with or endure it, and
• the plaintiff's reaction isn't unusual.

Intensity and duration are factors courts consider in determining whether distress is severe; it's typically not severe if it is slight or short-lived.

For example, in yet another federal case, the plaintiff sued for intentional infliction of emotional distress due to being beaten and pepper-sprayed by police. But weight loss, embarrassment, confusion, and one visit to a psychologist didn't show emotional distress that was sufficiently severe. (Vincent v. Prince George's County, MD, 157 F.Supp.2d 588 (D. Md. 2001).)

Suing the Police for Negligent Infliction of Emotional Distress (NIED)

Citizens can also sue police officers when the latter cause emotional distress negligently, rather than intentionally or recklessly. The extent of emotional harm required for a successful lawsuit depends on the jurisdiction.

When Do Police Have a Duty of Care?

In order for there to be potential liability for negligently caused emotional distress, the officer must owe a "duty of care" to the citizen. In other words, the court will consider whether the officer had some kind of special relationship with the plaintiff that's distinct from the general police responsibility to the public at large.

For example, in a Louisiana case, a rape victim sued a sheriff for the emotional distress she suffered when the evidence in her case was mistakenly destroyed before a suspect had been arrested. The court held that the duty to preserve evidence goes to the general public, and that law enforcement doesn't owe any special duty to protect an individual from the misplacement or mistaken destruction of evidence. (Dennis v. Wiley, 22 So.3d 189 (La. App. 1 Cir. 2009).)

Do You Need Proof of Physical Injuries?

Ironically enough, some states require physical injury for emotional distress suits. This injury might be directly caused by the officer's conduct or a physical manifestation of emotional suffering.

Courts are more likely to require physical harm in negligent infliction of emotional distress cases. But even if it's not required, physical harm resulting from emotional distress, such as ulcers, headaches, or a miscarriage, will make it easier to prove the case.

In one case, the plaintiff claimed to have been assaulted during an arrest on a college campus. The court rejected the emotional distress claim because there was no evidence of physical symptoms resulting from distress. The only physical injuries suffered were from the assault, not the emotional trauma the plaintiff claimed to have experienced. (Godette v. Stanley, 490 F.Supp.2d 72 (D. Mass. 2007).)

How Do I File a Lawsuit Against Police for Emotional Distress? Should I Hire a Lawyer?

Yes. If you're wondering whether you have a viable lawsuit against the police (including the government that the police are a part of), you should consult an attorney experienced in cases like yours. Lawsuits against government entities—like police departments—are more complex than suing a private individual or business. Special procedural rules and strict time limits apply in cases against the government.

Potential lawyers to consult include ones specializing in civil rights or personal injury. An experienced lawyer can explain the law that applies to your situation, analyze the merits of your claim, and review potential defenses for the police and government.

If you're also facing criminal charges, make sure to talk to your criminal defense attorney or public defender—you don't want a civil lawsuit compromising your interests as a criminal defendant.

FAQs on Lawsuits Against Police for Emotional Distress

Below are answers to additional questions relating to claims against police for emotional distress.

• Can I File a Lawsuit Against Police for Harassment?
• What Are the Time Limits for Suing a Police Department?
• What Else Should I Know About Suing Police?

Can I File a Lawsuit Against Police for Harassment?

Emotional distress claims are often tied to claims of harassment, racial profiling, false arrest, excessive use of force, and civil rights violations. Harassment can form the basis for lawsuits against police, but it won't usually support a claim on its own. The plaintiff will need to prove that the harassment was intentional or negligent and resulted in emotional distress, or violated a plaintiff's constitutional rights. The latter claim describes what's called a Section 1983 lawsuit. (Learn more in our article on Section 1983 Lawsuits: Suing Police for Civil Rights Violations.)

A citizen who experiences harassment can file a complaint against a police officer for violating a department's policies. Some jurisdictions have Citizen Oversight Boards or Commissions that investigate allegations of police misconduct. Depending on the situation, an officer may be subject to disciplinary action. Situations where harassment also involved destruction of property or injuries could form the basis for civil liability against the government for those damages.

What Are the Time Limits for Suing a Police Department?

Statutes of limitations for civil lawsuits vary by jurisdiction and type of claim. A person might sue under state law or decide to file a federal lawsuit. Every state and federal law has different time limits and requirements.

For instance, the person might need to provide notice to the government about their claim within a very short amount of time following the incident, such as 90 days or six months. This notice doesn't start the lawsuit, but it's often required before you can file the lawsuit. So it's important to speak to a lawyer as soon as possible.

What Else Should I Know About Suing Police?

As mentioned above, suing the police—a government agency—isn't the same as suing a private individual or company. For more information on the different hurdles you might face, check out Can You Sue the Government for Injury?

For any encounter with police, it's a good idea to write down the officer's name and badge number, their employing law enforcement agency (city police, county sheriff, state patrol, or federal), and ask them to turn on their body-worn cameras.