What Does the Duty to Intervene Really Mean?

Published for NC Criminal Law on February 21, 2022.

Law enforcement officers have a duty to intervene when they have an opportunity to prevent another officer from using unlawful force. That duty comes from multiple sources, including federal constitutional law, a new state statute, and, in some cases, agency policy. But what does the duty require in practice? Is verbal intervention enough, or must the officer attempt to intercede physically? What if the officer has competing obligations, such as keeping control of an unruly scene? And what should an officer do if he or she isn’t sure whether the amount of force another officer is using is appropriate? This post will address how officers and agencies might operationalize the duty to intervene.

Background. As a matter of federal constitutional law, an officer’s duty to intervene has existed for decades. The leading case in this area is Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972). The plaintiff in that case sued several Chicago police officers for deprivation of his civil rights under 42 U.S.C. § 1983, alleging that they had assaulted and beaten him in a bar using nightsticks and fists. He further contended that the officers “call[ed] him . . . obscene[] and uncivil names and epithets,” which seems rather mild compared to being hit with a nightstick. Anyhow, the plaintiff couldn’t identify which officers he contended hit him and which were bystanders, so he alleged that the defendant officers were liable either for assaulting him or for failing to intervene and protect him from the officers who did. The district court directed a verdict for the defendants, but the Seventh Circuit reversed. It found that section 1983 allows for “liability . . . both for misfeasance and for nonfeasance.” And as to law enforcement officers specifically, it said:

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 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.

Since Byrd, federal courts across the country have agreed that officers have a duty to intervene when a fellow officer uses excessive force. See, e.g., Helm v. Rainbow City, Alabama, 989 F.3d 1265 (11th Cir. 2021) (“The principle that an officer must intervene when he or she witnesses unconstitutional force has been clearly established in this Circuit for decades.”); Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411 (4th Cir. 2014) (noting that officers may be liable as bystanders when they have the opportunity to intervene but fail to do so).

Courts have typically addressed the duty to intervene in connection with allegations of excessive force in violation of the Fourth Amendment – or the Eighth Amendment, when the force is used against a person who is already in custody. However, a few cases suggest than an obligation to intervene may exist in other situations that involve the deprivation of constitutional rights. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (stating broadly that “[i]t is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence,” including when “any constitutional violation has been committed by a law enforcement official”); Peterson v. Heymes, 931 F.3d 546 (6th Cir. 2019) (affirming denial of qualified immunity in a case where the plaintiff contended that officers had extracted a false confession from him and withheld evidence from his criminal defense attorney, or failed to intervene when other officers did so; these allegations concerned “constitutional violation[s] with respect to malicious prosecution, procedural due process rights, and failure to intervene”); Cooper v. Garman, 2021 WL 4033113 (M.D. Pa. Sept. 3, 2021) (unpublished) (denying summary judgment in a section 1983 case filed by an inmate who alleged that officers violated his First Amendment rights or failed to intervene when others did so; “a reasonable juror could conclude that [one officer] violated Plaintiff’s First Amendment rights by failing to intervene to stop [another officer]”). Thus, for example, if an officer tells a protestor to put down a sign that bears an insulting message about a public figure, nearby officers may have an obligation to intervene in the first officer’s infringement of the protestor’s First Amendment rights.

In recognition of these principles, many agencies have adopted policies requiring officers to intervene in certain circumstances, including most of the nation’s 100 largest departments. See Task Force on Policing, Council on Criminal Justice, Duty to Intervene Policy Assessment (January 2021).

New statute. Last year, the General Assembly enacted S.L. 2021-138, often called SB300. It contains many provisions pertinent to law enforcement, including adding a duty to intervene to G.S. 15A-401, the arrest statute. The bill adds a new subsection which reads:

(d1) Duty to Intervene and Report Excessive Use of Force. – A law enforcement officer, while in the line of duty, who observes another law enforcement officer use force against another person that the observing officer reasonably believes exceeds the amount of force authorized by subsection (d) of this section and who possesses a reasonable opportunity to intervene, shall, if it is safe to do so, attempt to intervene to prevent the use of excessive force. Additionally, the observing officer shall, within a reasonable period of time not to exceed 72 hours thereafter, report what the officer reasonably believes to be an unauthorized use of force to a superior law enforcement officer within the agency of the observing officer, even if the observing officer did not have a reasonable opportunity to intervene. If the head of the law enforcement agency of the observing officer was involved or present during what the observing officer reasonably believes to be unauthorized use of force, the observing officer shall make the report to the highest ranking law enforcement officer of that officer’s agency who was not involved in or present during the use of force.

The statutory duty to intervene and report went into effect on December 1, 2021. Shea wrote a timely primer about it here. In light of its placement in the arrest statute and its reference to “the amount of force authorized by subsection (d) of this section,” which concerns the use of force in arrests, it appears to apply only to uses of force during arrests – not, for example, uses of force during crowd control, the execution of a search warrant, or response to a medical emergency. As noted above, the constitutional duty to intervene may be broader.

One interesting aspect of the statute is that it appears to require cross-agency intervention. In other words, if Officer Andrews from agency A sees Officer Britt from agency B using unlawful force, Officer Andrews has seen “another law enforcement officer” using unlawful force and must intervene if it is safe to do so. Officer Andrews must also report the unlawful use of force “within the agency of the observing officer,” that is, to agency A. Agency A of course may report the matter to agency B, but the statute doesn’t require that.

There is little section 1983 case law concerning inter-agency intervention, but the Fifth Circuit ruled in Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995), that “[t]he fact that [the officer using force] and [another officer on the scene] were from different law enforcement agencies does not as a matter of law relieve [the latter] from liability for a failure to intervene.” Cf. Tanner v. San Juan County Sheriff’s Office, 864 F.Supp.2d 1090, 1156 (D.N.M. 2012) (“That officers are from different law enforcement agencies is a fact that may influence whether there is a realistic opportunity to intervene or the extent to which the secondary officer should have deferred to the primary officer, but that fact does not entitle [a potential intervening officer] to summary judgment as a matter of law.”).

What is intervention? The statute doesn’t indicate what sort of intervention is required. Gentle verbal inquiry? An assertive command to desist? Physical intercession? I reviewed a number of agency policies and found that most of them don’t address the issue either. One exception is the policy of the Minneapolis Police Department, updated in the wake of George Floyd’s death to provide in part that “any sworn employee who observes another employee use any prohibited force, or inappropriate or unreasonable force . . . must attempt to safely intervene by verbal and physical means.” Minneapolis Police Department, Policy 5-300, Use of Force (emphasis supplied).

The section 1983 case law is also unclear on this point. Decades ago, a commentator noted that the cases generally “do not explicitly deal with the extent or type of intervention required,” and that “[t]he sufficiency of an affirmative effort to intervene has not been an issue in most cases” because “[t]he predominate situation in litigation is there was no effort at all to intervene.” Benjamin B. Ferrell, Duty to Intervene: An Officer’s Dilemma, 4 Journal of Contemporary Criminal Justice 93, 99-100 (1988). The same could probably be said today.

The prosecutors handling the federal criminal litigation arising from George Floyd’s death seem to have concluded that verbal intervention is enough, at least for purposes of criminal liability. One of the officers present at the scene apparently asked Officer Derek Chauvin, as Chauvin knelt on Floyd’s neck, “should we roll him on his side?” Although Chauvin said no, the officer who asked the question is the only officer on scene not charged with a crime based on a failure to intervene in Chauvin’s unlawful use of force. (The officer’s statement is discussed here, and the lack of a criminal charge against him based on failure to intervene is reported here.)

On the other hand, there are a few civil section 1983 cases suggesting that physical intervention may be required under at least some circumstances. For example, in Gonzalez v. Waterbury Police Dept., 199 F.Supp.3d 616 (D. Conn. 2016), the plaintiff led officers on a high-speed chase, then fled on foot, ultimately hiding in a drainage ditch. He alleged that he was surrounded by multiple officers who began throwing rocks at him, and that they continued to do so even after he surrendered to them. He sued, claiming that several officers were liable either for throwing the rocks or for failing to intervene. The district court denied in part the officers’ motion for judgment as a matter of law, ruling that two officers “were in a position from which they were able to intervene” in that they “could have communicated to [another officer] that [the rock throwing] needed to stop” and that the officers “could have physically gone to the other side of the ditch and prevented additional rocks from being thrown.”

What is a “reasonable opportunity to intervene”? The statutory duty to intervene applies to an officer “who possesses a reasonable opportunity to intervene.” The section 1983 case law sheds some light on how this might be interpreted.

First, an officer can’t be faulted for failing to intervene when another officer suddenly and unexpectedly uses excessive force. See, e.g., Ting v. United States, 927 F.2d 1504 (9th Cir. 1991) (the plaintiff alleged that an officer used excessive force by shooting the plaintiff while arresting him; summary judgment was properly granted in favor of other officers present at the scene; “there is no evidence that the four non-shooting agents knew that [the officer who shot the plaintiff] would hurt or shoot [the plaintiff] . . . [and] the agents were positioned around the room away from [the incident] and were thus physically incapable of preventing the incidents surrounding the shooting, all of which transpired in a matter of seconds”).

Second, an officer isn’t required to intervene if he or she is attending to other important duties, such as arresting another person or attending to an injury. See, e.g., Ensley v. Soper, 142 F.3d 1402 (11th Cir. 1998) (noting that “this is not a case in which an officer is alleged to have stood idly by while a fellow officer mistreated a member of the public,” and instead, “all of the abuse allegedly suffered by [one plaintiff] occurred while [the officer who the plaintiff claimed should have intervened] was attempting to restrain and arrest [another individual],” under which circumstances, the officer “had discretion to decide” whether it was more important to continue making his own arrest or whether to attend to the allegedly excessive force being used by other officers); Dutton v. Reynolds, 2014 WL 4540161 (M.D. Fla., Sept. 11, 2014) (unpublished) (finding no duty to intervene where the officer in question “was performing other duties which deserved his immediate attention, attending to the seriously injured victim of the crash”); Franklin v. Rogers, 2013 WL 796558 (N.D. Ind., Mar. 4, 2013) (unpublished) (finding that the plaintiff hadn’t “alleged a plausible claim that the other officers had time to intervene, particularly since they appear to have been tasked with other duties, such as video-recording the incident”). Exactly what kinds of duties are sufficiently important to exempt an officer from the obligation to intervene is likely a fact-specific question.

Knowledge of excessive force. The statutory duty to intervene arises when an officer “observes another . . . officer use force . . . that the observing officer reasonably believes exceeds the amount of force authorized.” Some officers worry about how broadly that may be interpreted. One former officer poses this scenario:

Imagine that as a police officer, you receive a radio call for a violent domestic disturbance. Your zone partner radios in that she is on scene, you are a minute away. [Your partner] hears screaming inside and radios that she is going in, knowing you will be there shortly. You arrive and run through the door and see your partner on top of a male subject who is face down on the ground. She is striking him in the back of the head with her baton.

Knowing the head strikes are deadly force and seeing the prone subject being hit, you tackle the female officer to stop her from hitting him again. You do this despite knowing your partner is a competent professional who you have never known to mistreat anyone. But you can’t wait—because you could face criminal charges if you don’t intervene immediately.

After [you tackle] her, she screams “No, he’s got my gun!” You turn to see the suspect roll over and present the gun he earlier wrestled away from your partner (which is why she was hitting him), and he shoots you both dead.

Randy Petersen, What Does a Duty to Intervene Mean?, Texas Public Policy Foundation (May 7, 2021), https://www.texaspolicy.com/what-does-a-duty-to-intervene-mean/.

But courts have recognized that an officer need not assume the worst, and that an officer who is newly on scene is not required to intervene without adequate information. See, e.g., Tanner v. San Juan County Sheriff’s Office, 864 F.Supp.2d 1090, 1133 (D.N.M. 2012) (noting that the court “concludes that it should take into account an information imbalance between officers in evaluating whether a secondary officer had a duty to intervene in another officer’s conduct,” including consideration of when an officer arrives on the scene and whether the officer has an opportunity to gather information about the situation before the use of force occurs).

Training and culture. There are many differences between being a UNC faculty member and being a law enforcement officer. For example, when I ask a colleague for assistance, I normally want him or her to review my work critically, point out errors, and suggest improvements. This is all in the service of a better end product, which I can produce at my leisure from the comfort of my office. By contrast, when an officer on the street calls for backup, he or she normally wants reinforcements: someone to come right away to help support the officer in dealing with a situation that is adversarial and potentially dangerous. Because of the nature of the work, the culture in law enforcement leans toward loyalty rather than constructive criticism.

For that reason, effectively implementing the duty to intervene may require training focused on the culture of law enforcement. Can officers come to see intervening as helping other officers stay out of trouble, live their values, and preserve their careers? Are there tools officers can use to make intervening feel less like undermining a fellow officer’s authority? (One former officer told me that in his agency, if one officer saw another officer about to make a mistake, the first officer would say “hey, hold on a second, Sergeant Coffee needs you on the radio.” Sergeant Coffee was not a real person, but invoking him or her would signal to the second officer that he or she was on the wrong track while also providing a face-saving way for the officer to get out of the situation.) Scenario-based training may be one way to help officers reframe intervening. Readers interested in thinking more about culture change and training in connection with the duty to intervene should check out this article by Charlottesville Police Department Lt. Brian O’Donnell.

Agency policies. Given the new statute and the level of public interest in this issue, agencies may want to review their duty to intervene policies, or to draft one if they don’t have one yet. Having such a policy is required for CALEA accreditation, may help drive culture change, may help agencies meet public expectations, and may help reduce liability risk. When drafting or revising a duty to intervene policy, agencies may wish to consider the following questions:

  • Will the duty to intervene be limited to the use of force context, or will it extend to other inappropriate or unlawful conduct?
  • Should the duty to intervene be part of the agency’s use of force policy, or a separate policy?
  • Is verbal intervention sufficient to satisfy the policy, or are there situations where physical intervention is expected?
  • What are the consequences of violating the policy?
  • Will officers who attempt to intervene be shielded from adverse consequences, in the same way that whistleblowers are?
  • Must every intervention be accompanied by a report? Specifically, what if an officer successfully intervenes before unlawful force is used?

Conclusion. There’s a great deal more that could be said about the duty to intervene, but I’ll wrap up by noting that encouraging intervention is a concern not unique to law enforcement. Medical professionals routinely fail to speak up when they see colleagues making mistakes. David Maxfield et al., The Silent Treatment: Why Safety Tools and Checklists Aren’t Enough to Save Lives (2011) (available online here; noting that more than 80% of nurses have had concerns about colleagues’ incompetence or use of shortcuts, in ways that often endangered patient care, yet frequently said nothing). College students are often reluctant to intervene with peers in situations where sexual assaults are likely. Jill C. Hoxmeier et al., “She Wasn’t Resisting”: Students’ Barriers to Prosocial Intervention as Bystanders to Sexual Assault Risk Situations, 25 Violence Against Women 485 (2019) (noting the infrequency of intervention and exploring reasons, such as not knowing what to do or being concerned about peer reactions). Airplane copilots and crew regularly fail to address pilots’ errors, even when the outcome may be fatal. Robert O. Besco, To Intervene or Not to Intervene: The Co-pilot’s Catch-22 (undated) (available online here; noting “many incidents . . . in which the subordinate flight crew members had detected serious problems in the performance of the Captain,” including over a dozen fatal crashes, yet crew members “were unable to select or implement suitable responses”). In all these settings, intervening is harder when the person committing an error is more experienced, or in a position of greater power or authority, than the person who has an opportunity to stop it. In other words, intervening in others’ misconduct isn’t just a policing problem – it is a human problem.

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