If an individual is trying to sue the Police Department under §1983, and for whatever reason does not win this case, are there any other reasonable theories of liability by which the individual can bring suit against the agency or the police officers involved in the case? The original suit is regarding the individual getting physically injured during an arrest.
In answering this, we must of course note that what is “reasonable” is to some degree a matter of opinion. Most suits against police officers and departments are predicated on Section 1983, so it is possible to argue that nothing else is reasonable. However, depending on the circumstances, I would argue that we could bring a suit against the police officer as an individual, not as a police officer. It is not clear that such a suit would be likely to succeed, but it would be an option.
Section 1983 concerns actions that are taken by police (and other government officials) “under color of” state law. Any person who is acting under color of state law may be liable if they deprive someone else of their rights. Suits brought under Section 1983 typically allege that, for example, the use of excessive force by the police caused the plaintiff to be deprived of their rights.
If we cannot use Section 1983, it may still be possible to bring a suit if we are injured in the process of getting arrested. It may be possible to sue the police officer as an individual, alleging that he or she was negligent. All individuals have a duty to exercise reasonable care in their everyday activities. If they fail to exercise reasonable care and someone is injured, they can be held liable due to their negligence.
It is conceivable that we could sue the police officer for being negligent, depending on the circumstances of our injury. For example, let us imagine that the officer handcuffed us in a position that was clearly likely to injure our shoulder. We could argue that any reasonable person would have realized that putting someone’s arm in that position was going to injure their shoulder.
Thus, it is at least possible that we could sue a police officer for negligence even if they could not be sued under Section 1983.