When a police officer uses excessive force, the injured person or the family has two possible paths: a federal civil rights claim and a Florida state law claim. They have different rules, different defenses, and different limits, and most serious cases use both. Our firm represented the family of Corey Jones, who was shot and killed by a Palm Beach Gardens officer in 2015, as local counsel in a case that settled for $2 million. This post explains how these claims work.
The Federal Claim: 42 U.S.C. § 1983
Section 1983 allows a person whose constitutional rights were violated by someone acting under state authority to sue in federal court. In a police force case, the right at issue is usually the Fourth Amendment’s protection against unreasonable seizures. Force is excessive when it is not objectively reasonable under the circumstances the officer faced, considering the severity of the crime, whether the person posed an immediate threat, and whether the person was resisting or fleeing.
Section 1983 claims can be brought against the individual officer and, in some circumstances, against the city or county, if the violation resulted from an official policy, a widespread custom, or a failure to train or supervise. There is no damages cap on a section 1983 claim, and a prevailing plaintiff can recover attorney’s fees.
The main obstacle is qualified immunity, a judge-made doctrine that shields an officer unless the right violated was “clearly established” at the time. Overcoming it requires showing that prior case law put the officer on notice that the conduct was unlawful. That is where the facts, the video, and the investigation matter most.
The State Claim: Section 768.28
Florida has waived its sovereign immunity for negligence claims against the State and its agencies, counties, cities, and sheriffs, under section 768.28, Florida Statutes. A claim against a police department for an officer’s negligence, or for negligent hiring, training, or supervision, follows this statute. It requires written notice of the claim to the agency and to the Florida Department of Financial Services before suit, and it limits what can be collected from the government to $200,000 per person and $300,000 per incident. Recovery above those limits requires a claim bill passed by the Legislature.
Under section 768.28(9), an individual officer is personally liable only for conduct done in bad faith, with malicious purpose, or with wanton and willful disregard of human rights or safety. Otherwise, the agency is the defendant.
Wrongful Death
When a person is killed by police, the family’s state claim is brought under Florida’s Wrongful Death Act by the personal representative of the estate, on behalf of the survivors. The federal section 1983 claim survives the death and is brought by the estate as well.
Evidence That Decides These Cases
- Body-worn camera and dash camera video, and the agency’s retention policy
- Surveillance and bystander video, which can be overwritten in days
- 911 and dispatch recordings
- The officer’s disciplinary history and the agency’s use-of-force policies
- The medical examiner’s report and independent forensic review
- The state attorney’s investigation, which is a separate process from the civil case
Preservation demands should go out immediately. Florida’s public records law, Chapter 119, gives families a tool to obtain many of these records, though active criminal investigation exemptions can delay release.
Deadlines
A section 1983 claim in Florida borrows the state’s personal injury limitations period, which is now two years for claims arising after March 24, 2023. State claims under section 768.28 have their own notice and filing deadlines that run from the incident. Because these rules interact, families should speak with a lawyer early.
How The Injury Advocates Can Help
We handle police shooting and excessive force cases across South Florida, and we understand both the federal and state paths. In the Corey Jones case, our firm organized community stakeholders, served as the family’s spokesperson, and acted as liaison with the State Attorney’s Office and investigating agencies. Read about the Corey Jones case. Your consultation is free, and you owe no fees or costs unless we win.
Frequently Asked Questions
Can you sue the police in Florida?
Yes. Federal civil rights claims under section 1983 and state negligence claims under section 768.28 are both available. Most serious cases involve both.
Is there a cap on damages?
State claims are limited to $200,000 per person and $300,000 per incident unless the Legislature approves more. Federal section 1983 claims have no cap.
What is qualified immunity?
A legal doctrine that protects an officer from a federal claim unless the right violated was clearly established by prior case law. It is the main defense in excessive force cases and must be addressed from the start.
Related: Learn more about our police shooting and excessive force practice.
Kweku Darfoor is the founder of The Injury Advocates (Darfoor Law Firm, P.A.) and a Florida personal injury attorney with more than a decade of experience representing seriously injured people and their families. This content is for general information and is not legal advice.
