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Is Wrongful Death by Police Considered Civil or Criminal?

On Behalf of | Oct 25, 2023 | Civil Rights, Criminal Defense

Police have the legal right to use lethal force in some scenarios, and this use of force can lead to death. Sometimes, the use of lethal force had no justification, but someone ended up dead. In these cases, a police officer or their station could be looking at a legal battle over wrongful death.

It’s useful to know if wrongful death is a civil or criminal case and how the court outlines wrongful death. The Bill of Rights and California law outline your civil rights, and police have the mandate to avoid violating them or face punishment.

Wrongful Death: Civil or Criminal?

Wrongful death falls under the civil umbrella of our legal system rather than the criminal area. Wrongful death is a civil action where one party attempts to implicate another party in being responsible for the death of an individual.

Just because wrongful death falls under civil court does not mean that a killing related to wrongful death carries no risk of jail time. Law enforcement can bring homicide charges against an individual in criminal court. The defendant may have to defend themselves from a criminal and civil case simultaneously.

Civil cases carry no risk of jail time, but a judge may order a defendant to pay restitution if the jury sides with the plaintiff.

California law allows either the legal representative of the deceased or their survivors to bring a claim against another party for wrongful death. Other states only allow for a single option, while California gives more leeway on who can bring a claim against someone for wrongful death.

What Constitutes Wrongful Death in California?

In cases involving law enforcement, the most common reason for a wrongful death claim comes from the use of excessive force. The Fourth Amendment to the Constitution outlines the policy that law enforcement cannot use excessive force while interacting with the public.

California law allows officers to use deadly force if they feel that they need to defend themselves against an attack that they believe could lead to death or injury. Wrongful death occurs when an officer uses lethal force without justification. You can bring a wrongful death claim against law enforcement when they can’t establish a reasonable explanation for why they used deadly force.

Aside from a scenario where police use lethal force, you can bring a wrongful death claim against law enforcement if they fail to provide medical care. When a suspect is in police custody, law enforcement must provide medical treatment as needed.

A suspect may be having a medical episode and need first aid. If law enforcement fails to help and provide first aid, the family has the right to bring a wrongful death claim against the officer.

California also has a precedent for bringing a claim against municipalities for inadequate training of its officers. This claim is difficult to prove, as you need to establish that a lack of training led to the death of a loved one.

When Can Law Enforcement Legally Kill?

Law enforcement has the right to use deadly force and kill when they are in danger and have no other viable option. California sees lethal force as a last resort when all non-lethal options fail. Police should have training in de-escalation techniques and non-lethal equipment.

Unfortunately, even with these laws and non-lethal techniques, law enforcement’s reaction to situations can lead to wrongful death. California is one of the leading states in the union regarding death by law enforcement.

What Restitution Can Someone Win From a Wrongful Death Case?

The plaintiffs in a wrongful death case have a few avenues to help ease the burden of a loved one’s wrongful death. A wrongful death attorney can assist you with a civil case and help you determine what kind of payout you can fight for in court.

Some of the compensation that you can ask for includes:

  • Any applicable medical bills from your loved one before they died
  • Lost wages from time spent in the hospital before death
  • Loss of future income
  • Funeral expenses
  • Burial costs

If the wrongful death occurred when the person was dealing with a wrongful conviction, you can also bring legal action against the police for both violations of civil rights.


Q: What Are the Elements of Wrongful Death in California?

A: Most lawyers will tell you that wrongful death cases are difficult to prove because the burden of proof is on the plaintiff to showcase that all four elements of wrongful death occurred. The four elements are:

  • Causation
  • Negligence
  • Breach of duty
  • Damages
  • Showing that law enforcement failed to meet these criteria requires a skilled attorney and plenty of evidence.

    Q: What Is the Burden of Proof for Wrongful Death?

    A: Since wrongful death is a civil case and not a criminal one, the burden of proof is not as high. The plaintiff must prove that the defendant was responsible for the victim’s death by a preponderance of the evidence. In essence, the jury will determine if the wrongful death was more likely than not caused by the defendant. If the plaintiff cannot prove the claim with this burden of proof, the jury should rule in favor of the defendant.

    Q: What Is Police Misconduct in California?

    A: Police misconduct is any action that law enforcement takes part in that violates a citizen’s civil rights. The most common forms of police misconduct are:

    • Excessive force
    • Harassment
    • Sexual misconduct
    • Fraud
    • Theft
    • False arrest

    Police officers committing any of these actions are liable for civil action from the victim. Wrongful death also falls under the police misconduct banner, but it is not as common as other infractions.

    Q: Do California Police Have Qualified Immunity?

    A: Qualified immunity has come under fire in recent years nationally. This law allows law enforcement and other government officials to have protection against legal action for actions that they commit in the line of duty. The California Supreme Court recently made a ruling stating that California law does not provide sweeping immunity for police officers. This means that law enforcement in California has fewer legal protections than in other states.

    Exum Law Offices: Your Seasoned Riverside Attorney

    If you or your loved one is the victim of police misconduct, you need an attorney on your side to advocate for you in court and help you reach the settlement you deserve. Contact us today to discuss your case.