In June of 2020, following the death of George Floyd in Minneapolis, activist groups, state and federal law makers, and local mayors have sought to create a duty on the part of law enforcement officers to intervene when they observe excessive force. There is little challenge to creating such a duty since all officers have had a Constitutional Duty to Intervene for decades.
The duty to intervene under the Constitution is broader than just use of force cases since it extends to the duty to intervene in any unconstitutional conduct. The federal courts in a number of cases over decades, has determined that officers have a constitutional duty to intervene in unconstitutional conduct and that the failure to do so leads to equal civil liability as the officer committing the unconstitutional conduct.
Officers should also recognize that an officer who fails to intervene in unconstitutional or illegal conduct is also violating their oath of office based on their oath to uphold the Constitution as well as state and federal law.
In Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000), the United States Court of Appeals for the 11th Circuit noted that the duty to intervene in excessive force was clearly established in 1994, the year when force was used on Priester. In doing so, the 11th Circuit cited prior cases that determined that an officer who fails to intervene will be civilly liable for such failure. The court cited language from Byrd v. Clark, 783 F.2d 1002 (11th Cir. 1986) that held: “If a police officer, whether supervisory or not, fails to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.). The Byrd court cited numerous decisions from other federal circuits in reaching this conclusion including a 1972 case decided by the United States Court of Appeals for the 7th Circuit which held:
We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction the misfeasor officers are committed. So, too, the same responsibility must exist as to nonsupervisory officers who are present at the scene of such summary punishment, for to hold otherwise would be to insulate nonsupervisory officers from liability for reasonably foreseeable consequences of the neglect of their duty to enforce the laws and preserve the peace. Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972).
As such, the courts have held for nearly a half century, that officers have a duty to intervene in excessive force cases.
The duty to intervene may extend beyond excessive force cases and include a duty to intervene in any unconstitutional conduct. For example, in Smith v. Hunt, 2010 U.S. Dist. LEXIS 101526 (N.Dist. Illinois 2010), the court noted that a police officer “has a duty under §1983 to intervene to prevent a false arrest or the use of excessive force if the officer is informed of the facts that establish a constitutional violation and has the ability to prevent it.”
Similarly, in Bunkley v. Detroit, 2017 U.S. Dist. LEXIS 147172 (E. Dist. Michigan), the Feral District Court held that since officers were on notice that they have a duty to intervene to prevent violations of constitutional rights, this duty extends to unlawful arrests and detentions.
Language from Crawford v. City of Chicago 2014 U.S. Dist. LEXIS 57720 (N. Dist. Illinois 2014), makes clear that there is an existing duty to intervene in any unconstitutional conduct where the officer knows a constitutional violation is occurring and the officer has a realistic opportunity to intervene and prevent the harm from occurring. The court noted:
An officer has “‘an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by their law enforcement officers.”‘ Randall v. Prince George’s Cnty., 302 F.3d 188, 203 (4th Cir. 2002) (quoting Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)). This duty attaches when the officer “observes or has reason to know that a constitutional violation is being committed and possess a realistic opportunity to intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Additionally, In order for an officer to be held liable under section 1983 in cases of inaction, the plaintiff must show (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and that officer had a realistic opportunity to intervene to prevent the harm from occurring.
It should be noted that the language by the court does not limit intervention to use of force but instead includes any constitutional violation by a law enforcement official.
Thus, the law under §1983 is clear that officers have civil liability for a failure to intervene when they observe or become aware of unconstitutional conduct and have a reasonable or realistic opportunity to intervene and prevent the harm from occurring. It should be noted that some Circuits have not adopted the “all constitutional violations” and may place limits on the duty to just use of force events.
Some observations should be apparent, single strike use of force cases or sudden unanticipated gunfire are unlikely to bring about a failure to intervene claim against officers who did not use force, while multiple strikes, prolonged force or gunshots over a period of time are more likely to support a failure to intervene claim.
Some practical words on Intervention
As the result of the death of George Floyd, Officer Chauvin was charged with homicide, while the other officers present were also criminally charged based on a failure to intervene in Chauvin’s 8 plus minutes of kneeling on the restrained Floyd’s neck.
Every single officer should momentarily place themselves in Chauvin’s current incarceration and ask themselves how badly Chauvin must wish that the other officers had intervened in his actions. By the same token the other officers, who are all criminally charged, how badly do they wish they had intervened in Chauvin’s action.
The slight act of intervention may or may not have stopped the death of George Floyd, but it would clearly have led to an entirely different scenario for the four officers and the rest of law enforcement around the United States, who are bearing the brunt of the public’s frustration with conduct that even law enforcement officers have universally condemned.
Some Cases on the Failure to Intervene
Sweet v. City of Hartford, 2018 U.S. Dist. LEXIS 87221 (D. Conn. May 24, 2018)
On October 13, 2013, Plaintiff met up with friends for dinner at a sports bar in downtown Hartford, and at around 9:30 p.m. Plaintiff drove home alone. While driving home, Plaintiff noticed lights in his rearview mirror, but did not see the lights again after he made a turn. Officers Fancher, Corvino, and Reeder were riding together in a police vehicle when they heard a dispatch which indicated that another officer had tried to stop a silver or grey SUV. Officer Corvino then observed a vehicle which matched the dispatch description and followed the vehicle to a parking lot of an apartment building. Officer Corvino then pulled up and stopped behind the vehicle, which was being driven by Plaintiff.
After Plaintiff parked, he saw lights and people coming towards his car. Officers Fancher and Corvino approach the front driver’s door of Plaintiff’s vehicle, while Officer Reeder approached and opened the passenger door. While Plaintiff was still in the driver’s seat, Officer Fancher punched Plaintiff in the face. Plaintiff was pulled from the vehicle by officers and brought to the ground. Plaintiff was then handcuffed and arrested. As a result of the incident, Plaintiff brought suit against the officers.
As part of his lawsuit, Plaintiff asserted claims for failure to intervene against each of the Defendant officers. In analyzing these claims, the Court first noted that police officers have an affirmative duty to intervene to protect the constitutional rights of citizens whose rights are being violated by other officers in their presence. The Court then explained that an officer’s liability for failure to intervene “may attach only when (1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer’s position would know that the victim’s constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene.”
Turning to the facts of the case, the Court stated that surveillance video of the incident established that there was approximately twenty seconds between the Officers’ first contact with Plaintiff and when Plaintiff was brought to the ground. The Court explained that a jury could find that Officers Fancher and Corvino had a brief opportunity to prevent each other’s use of force. Moreover, the Court noted that a jury could find that Officer Reeder failed to intervene after Plaintiff was hit with the initial blow or when Plaintiff was on the ground being subjected to force. Therefore, the Court did not dismiss Plaintiff’s claims for failure to intervene.
Lewis v. City of Chicago, 2005 U.S. Dist. LEXIS 7617 (N.D. Ill. Apr. 11, 2005).
On May 26, 2004, Officers Soto and Arnolts were working in plain clothes and were assigned to a Chicago Transit Authority (CTA) train. The Officers saw Christopher Hicks violate a CTA ordinance by walking between cars while the train was moving. Officer Soto approached Hicks and Hicks ran from the train. The officers searched for Hicks and found him approaching a bus stop, Officer Arnolts then told Hicks, “Chicago Police, stop.”
Under Plaintiff’s version of the facts, Officers Arnolts and Soto then “jumped” Hicks as he was standing against a wall. The Officers repeatedly punched Hicks until he fell to the ground and rolled onto his stomach. Both officers kicked Hicks, and one of the Officers straddled Hicks and began to choke him. Two uniformed officers, Pena and De Van, then arrived on scene, and Plaintiff presented evidence that Officer Soto had Hicks in choke hold when the uniformed officers arrived. Officer Arnolts was laying across Hicks’ legs. Officer Pena then performed a three-point kneeling stance to successfully handcuff Hicks. Hicks was unresponsive immediately after the handcuffing. According to Plaintiff, Officers Pena and De Van did not intervene to stop Officer Soto from choking Hicks.
Plaintiff argued that Officers Pena and De Van should have intervened to stop Officer Soto from choking Hicks. In discussing an officer’s duty to intervene, the Court stated that, “[a] police officer who is present and fails to intervene to prevent other police officers from using excessive force can be liable under § 1983 if that officer has reason to know excessive force is being used and a realistic opportunity to intervene to prevent the harm from occurring.” Turning to the facts of the case, the Court pointed out that Hicks was still alive when Officers Pena and De Van arrived on scene. Moreover, there was evidence that Officers Pena and De Van witnessed Officer Soto use the choke hold on Hicks for at least a couple of minutes. Other witnesses also stated that Officer De Soto had Hicks in a choke hold and not a head lock. Accordingly, this evidence created a genuine issue of material fact regarding whether Officers Pena and De Van saw Officer De Soto using the choke hold and whether the officers had a reasonable opportunity to intervene to stop the choke hold.
Dyksma v. Pierson, 2018 U.S. Dist. LEXIS 117503 (M.D. Ga. July 16, 2018)
Nicholas Dyksma died after Sheriff’s Deputy Tommy Pierson pinned him to the pavement and used his knee to apply compression to Dyksma’s neck. Pierson applied the compression once for a period of twenty seconds as Dyksma was being handcuffed and searched, and then applied the compression again for a period of seventeen seconds after Dyksma was handcuffed, physically incapacitated and no longer resisting. Officers had originally received a call of a person (Dyksma) slumped over the wheel of a pickup truck at a Circle K. When officers arrived Dyksma took off and led the responding officers in a pursuit, which ultimately ended with Dyksma being forced off the road. Dyksma was forcibly removed from the vehicle and placed face down on the shoulder of the road. While another deputy was handcuffing Dyksma, Deputy Pierson restrained Dyksma’s upper body by placing his knee on Dyksma’s neck for approximately twenty seconds. After Dyksma had been handcuffed and searched, Pierson and another deputy put Dyksma back in a prone position and Pierson again used his knee to press Dyksma’s neck into the ground for another seventeen seconds. After these events, Dyksma was transported to a medical center but could not be revived.
In its analysis, the Court considered whether Deputy Pierson was entitled to qualified immunity from suit. The Court determined that it was not clear that the first twenty seconds of neck compression—while Dyksma was being handcuffed and searched—constituted excessive force under clearly established law. However, the Court then stated, “[b]y August 2015, it had long been clearly established that after a suspect is arrested, handcuffed, and completely secured, and after the risks of danger and flight have passed, significant force that is ‘wholly unnecessary to any legitimate law enforcement purpose’ is excessive.” Therefore, the Court found “that on the date of Nicholas’s death, it was beyond debate that a law enforcement officer who jams his knee onto the neck of a helpless and incapacitated arrestee violates that arrestee’s Fourth Amendment right to be free from excessive force.” Consequently, Pierson was denied qualified immunity.
The Court also considered whether the other officers who were present at the scene were entitled to qualified immunity on Plaintiff’s claim for failure to intervene. The Court explained that although Pierson’s second neck compression of seventeen seconds constituted excessive force, it was administered without warning. The Court found that given the limited duration of Pierson’s actions and the unforeseeability of Pierson reapplying his knee to Dyksma’s neck, it did not violate clearly established law when the other officers did not intervene. Thus, the other officers were entitled to qualified immunity on this claim.
Duty to Render Aid
In addition to a duty to intervene, law enforcement also has a duty to render aid with respect to arrestees and particularly those persons who have been subject to a use of force. While the death of George Floyd in Minneapolis raises issues related to force and the duty to intervene, the events also raised issues of failure to render aid when Floyd expressly asked for help indicating he could not breathe, his neck hurt, and his stomach hurt. Even in a case where force is reasonably deployed, the failure to render aid can be a Constitutional Violation.
The vast majority of these cases center on failures to get medical aid to a person who has been injured or is indicating, while in custody, that they are ill.