Samuels v. Cunningham et al., 2003 U.S. Dist. LEXIS 14479 (Dist. Del. 2003)
Jones v. City of Hartford, 2003 U.S. Dist. LEXIS 17340 (Dist. CT. 2003)
How should an officer react when he or she observes a colleague commit an act of excessive force in his or her presence? It is a basic principle of supervisory responsibility that supervisors must intervene into subordinate officers conduct, but what about officers of equal rank? Two recent cases make clear that officers who have an opportunity to intervene in an excessive use of force must do so, or risk personal liability for a civil rights violation based upon their failure to intervene.
Samuels v. Cunniingham et al., 2003 U.S. Dist. LEXIS 14479 (Dist. Del. 2003), involved an apprehension by four detectives of the Wilmington DE. Police Department. The four detectives had approached Samuels who was leaning into the window of an automobile; as they did so, both the auto and Samuels fled. Samuels was apprehended by the four detectives and handcuffed. After he was handcuffed, a fifth detective, Detective Hall ran up and allegedly punched Samuels in the ribs. Samuels was transported to the hospital and treated for a fractured rib.
Samuels filed suit against the detective who punched him as well as the other detectives who were present when he was punched. His allegation against the four detectives who were merely present was based upon their failure to intervene in the conduct of their colleague. The detectives and the City of Wilmington sought a dismissal of the suit.
In reviewing the case the court noted the sequence of events and concluded that the four detectives had no reasonable opportunity to intervene in the punch since it was a single punch and there simply was no way for the four detectives who had apprehended Samuels to anticipate that Detective Hall would punch the handcuffed suspect. The court also dismissed claims against the City of Wilmington. The claims against Detective Hall, who allegedly threw the punch were allowed to proceed to trial.
The second case, decided September 30th 2003, found that the law with respect to officers who have an opportunity to intercede in excessive force is clearly established and may create liability for officers who fail to do so, Jones v. City of Hartford, 2003 U.S. Dist. LEXIS 17340 (Dist. CT. 2003).
Jones was a passenger in a vehicle that was stopped following a phony car-jacking call to the police. Officer Nichols and Rodriguez of the Hartford CT. Police Department approached the driver, Easterling, while Officer Murtha approached Jones.
After Jones was taken from the car, he protested that he had done nothing wrong. Officer Murtha then allegedly threw Jones to the ground and kicked him several times, including kicks to the face that caused a bloody lip. Murtha then picked Jones up from the ground, kneed him in the groin several times and then ripped his pants off him. It should be noted that the officers acknowledged Jones’ bloody lip and ripped- off pants.
The court found that Officer Nichols and Rodriguez had no opportunity to intervene in the kicks, but had opportunity to intervene in the other acts allegedly committed by Murtha.
In refusing to dismiss claims against Rodriguez and Nichols the court asserted: “ Police officers have an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in their presence by other officers.” Officers who fail to intervene may be liable for the harm caused by their colleagues.
Note: Many agencies have developed policies requiring officers to report observed excessive force by others and require immediate investigations of all uses of force.
Roll Call Training: Duty to Intervene
Hypothetical Situation: (Sergeant should use names of officers at the roll-call to emphasize the reality of such hypothetical situations):
Officer Boehm, let’s suppose we have a high-speed pursuit this evening. The pursuit travels some distance and the suspect makes several aggressive actions toward police cruisers. Let’s further suppose that the suspect finally bails out of his vehicle proceeds to flee on foot. Officer Malloy (the primary officer in the chase) catches the suspect and begins to assault the suspect who at this point has given up and is submissive.
What are your obligations to our department?
What are your obligations to the suspect?
What are your obligations to your brother and sister officers?
Do you expose yourself to personal liability if you fail to intervene in this excessive use of force?