On May 11, 2015, the Eighth Circuit Court of Appeals decided Grider v. Bowling[i], which serves as an excellent review of the law related to excessive force and duty to intervene under the Fourth Amendment. A summary of the relevant facts of Grider is as follows:
Grider, his wife Kami Grider, and his son were at a Taco Bell when an argument occurred between Grider and another patron. The police were called, and the Griders crossed the street to eat their food in their vehicle. Officer Bowling was the first officer to arrive. Officer Bowling approached Grider, who was wearing a knife on his hip, and asked Grider to exit his vehicle; Grider declined. Officer Bowling forcibly removed Grider, placed Grider on the ground with his knee on Grider’s back, and handcuffed Grider.
While Grider was held on the ground by Officer Bowling, Officer Eric Reece arrived in his vehicle. Officer Reece ran toward Officer Bowling and Grider and kicked Grider in the head. Officers Bowling and Reece did not communicate before the kick and Officer Bowling did not act to prevent the kick. Grider suffered contusions and abrasions on his face, and the kick caused neck pain and restriction of movement which persisted at least two years. Kami Grider suffered emotional distress and problems with her pregnancy. Officer James Dougherty arrived at the scene sometime after Grider was handcuffed and the kick had occurred. Grider had an open fifth of whiskey in his vehicle which the officers poured out at the scene.[ii]
Grider filed suit against the City of Springfield, the police chief, and Officers Bowling, Reece and Dougherty and alleged that the officers violated his rights under the Fourth Amendment by using excessive force. The district court granted summary judgment in favor of the City, the chief and Officer Dougherty who was not present during the alleged excessive force. Officer Bowling appealed the denial of his motion for qualified immunity to the Eighth Circuit Court of Appeals.
On appeal, Grider argued that Officer Bowling was liable: (1) because he used excessive force by removing Grider from his vehicle and placing him on the ground, (2) because Officer Reece allegedly kicked him, and (3) because he did not intervene prior and prevent the kick from Officer Reece. The court of appeals addressed each of Grider’s arguments.
First, the court of appeals considered whether Officer Bowling used excessive force when he physically removed Grider from his vehicle after he refused to exit the vehicle and then placed him on the ground. The court stated
Police officers undoubtedly have a right to use some degree of physical force, or threat thereof, to effect a lawful seizure, and reasonable applications of force may well cause pain or minor injuries with some frequency.” Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir. 2011) (internal citation omitted). The dispositive question is whether the officer’s conduct was objectively reasonable under the circumstances, as judged from the perspective of a reasonable officer on the scene at the time the force was applied. Id. The degree of injury suffered in an excessive-force case “is certainly relevant insofar as it tends to show the amount and type of force used.” Id. at 906; see also Johnson v. Carroll, 658 F.3d 819, 830 (8th Cir. 2011) (finding force not excessive in part because the plaintiff “sustained no injury“).[iii]
The court of appeals then noted that in Grider’s case, he sustained no injury, he refused to exit his vehicle, and he was in possession of a knife. In light of these facts, and the legal principles above, the court held that Officer Bowling did not use excessive force by removing Grider from his vehicle and placing him on the ground.
Second, the court of appeals considered whether Officer Bowling violated the Fourth Amendment because Officer Reece allegedly kicked Grider in the face. The court stated
[L]iability for damages for a federal constitutional tort is personal, so each defendant’s conduct must be independently assessed. Section 1983 does not sanction tort by association.” Smith v. City of Minneapolis, 754 F.3d 541, 547 (8th Cir. 2014) (internal quotation marks omitted). “‘An officer may be held liable only for his or her own use of excessive force.'” Id. at 547-48 (quoting Smith v. Kan. City, Mo. Police Dep’t, 586 F.3d 576, 581 (8th Cir. 2009)).[iv]
The court of appeals applied the above legal principles and held that Officer Bowling could not have violated Grider’s rights under the Fourth Amendment based on Officer Reece’s alleged use of excessive force, particularly kicking Grider in the face.
Third, the court of appeals considered whether Officer Bowling violated the Fourth Amendment by failing to intervene prior to Officer Reece’s kick and preventing Reece from kicking Grider. The court stated
It is “clearly established that an officer who fails to intervene to prevent the unconstitutional use of excessive force by another officer may be held liable for violating the Fourth Amendment.” Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009). An officer can be liable for nonfeasance, “where the officer is aware of the abuse and the duration of the episode is sufficient to permit an inference of tacit collaboration.” Krout v. Goemmer, 583 F.3d 557, 565 (8th Cir. 2009); see also Jennings v. Davis, 476 F.2d 1271, 1275 (8th Cir. 1973) (requiring an officer to “have had the duty, opportunity, or the ability to intervene“).[v]
Thus, for an officer to be liable for failing to intervene to prevent the use of excessive force by another officer, the abuse must have been of sufficient duration for the officer to have an opportunity to intervene. If there was an opportunity to intervene, and the officer fails to do so, he may be considered a “tacit collaborator” in the excessive force.
In Grider’s case, there was no evidence that Officer Bowling knew in advance that Officer Reece was going to kick Grider. Further, since there was only one kick alleged, Officer Bowling did not have a sufficient opportunity to intervene. As such he is not liable for failing to intervene.
Therefore, the court of appeals reversed the district court and held that Officer Bowling was entitled to qualified immunity.
Practice Pointer:
Law enforcement agencies should have a policy that requires officers to intervene in acts of excessive force, when there is sufficient opportunity to do so.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] 735 F.3d 1248 (8th Cir. 2015)
[ii] Id. at 1250-1251
[iii] Id. at 1252 (emphasis added)
[iv] Id. (emphasis added)
[v] Id. at 1253 (emphasis added)
