Suing the Police in Illinois: How Section 1983 Civil Rights Claims Work

Police officers have enormous power, and the law expects them to use it within constitutional limits. When an officer uses unreasonable force, arrests someone without probable cause or fabricates evidence, the person harmed can bring a civil rights lawsuit for money damages. In Illinois, most of these cases are brought under a federal statute known as Section 1983.

What is a Section 1983 claim?

Section 1983 (42 U.S.C. § 1983) allows a person to sue anyone who, while acting “under color of” state law, deprives them of rights protected by the U.S. Constitution or federal law. Municipal, county and state police officers, jail staff and other government employees can all act under color of state law when they are on duty.

The most common police misconduct claims

• Excessive force: force that was objectively unreasonable under the circumstances, judged under the Fourth Amendment.
• False arrest or unlawful detention: an arrest or stop without probable cause or reasonable suspicion.
• Malicious prosecution: criminal charges pursued without probable cause that ended without a conviction.
• Fabrication of evidence or coerced statements that led to a wrongful prosecution or conviction.
• Failure to intervene: an officer who watched a fellow officer violate someone’s rights and had a realistic chance to stop it.

Can you sue the city or the department?

Sometimes. A city or county is not automatically responsible for every officer’s constitutional violation under Section 1983. To hold the municipality itself liable, you generally must show that an official policy, a widespread custom or practice, or a decision by a final policymaker caused the violation. These are often called Monell claims. Separately, Illinois law generally requires local public entities to pay compensatory damages awarded against employees acting within the scope of their employment, which matters when it comes to actually collecting a judgment.

Qualified immunity and other defenses

Officers sued under Section 1983 almost always raise qualified immunity. It protects officials unless they violated a constitutional right that was “clearly established” at the time. It is a significant hurdle, but not an absolute bar, and how the facts are investigated and presented often determines whether a case survives it.

State-law claims against officers face their own defenses under the Illinois Tort Immunity Act. Cam Tober has taken these fights to the Illinois Supreme Court, winning a unanimous opinion that curtailed a police immunity statute invoked by officers in a police-chase case. See more on our police misconduct practice page.

Deadlines: move quickly

• Federal Section 1983 claims in Illinois generally must be filed within two years.
• State-law claims against local officers and departments, such as battery or malicious prosecution, are often subject to a one-year deadline under the Tort Immunity Act (745 ILCS 10/8-101).
• When a claim accrues can be complicated, for example in malicious prosecution and wrongful conviction cases, so get advice early rather than relying on a rough count.

What to do right now if police violated your rights

• Get medical treatment and keep every record and photograph of your injuries.
• Write down everything you remember: names, badge numbers, squad car numbers, times and locations.
• Identify witnesses and anyone who recorded video on their phone. Save your own recordings in more than one place.
• Do not discuss the incident on social media.
• If criminal charges are pending, talk to your criminal defense attorney before making statements, and coordinate with civil counsel.

Body-worn camera footage, dispatch audio and nearby surveillance video may be overwritten under retention schedules, so prompt preservation requests are important.

Attorney fees in civil rights cases

Federal law (42 U.S.C. § 1988) allows a court to award reasonable attorney fees to a prevailing plaintiff in a civil rights case. Tober Law handles police misconduct cases on a contingency fee, so there is nothing to pay upfront. Request a free, confidential consultation.