California Legal Updates Editorial
By Robert Phillips
Deputy District Attorney (Ret.)
The Duty to Intervene
Law enforcement officers have a duty to intervene when witnessing another officer’s use of excessive force. Failing to do so exposes the witness officer to potential civil, criminal, and departmental sanctions.
Two Seminal Cases
In May 2020, George Floyd, a 46-year-old African-American with a long and sometimes violent criminal history, was suffocated to death by Minneapolis Police Officer Derek Chauvin. Chauvin used a knee on Floyd’s neck to pin a handcuffed Floyd to the ground for some 9 minutes and 29 seconds. Three other officers held onlookers back, ignoring Floyd as he cried out that he couldn’t breathe.
All four officers were subsequently criminally prosecuted, indicted on a variety of state and federal charges. Chauvin eventually received a state and federal concurrent prison term of 22½ years. The other officers, two of whom helped hold Floyd down at times and another who prevented on-lookers from interfering while themselves failing to intervene, got from three to three and a half years in prison. On top of that, the City of Minneapolis agreed to pay Floyd’s estate a whopping $27 million to settle a lawsuit filed by his family.
Another tragic case from January 7 of this year is ongoing: five Memphis Police Department officers are accused of having beaten to death a 27-year old black man – Tyre Nichols –
During what, in hindsight, should have been nothing more than a simple traffic stop. All five officers, who are themselves black, have been fired from the Memphis P.D. and charged in state court with second-degree murder. A sixth officer has subsequently been fired, and two Memphis Fire Department EMTs and a fire lieutenant were fired.
While some details of this incident have yet to be determined, it is apparent from body-cam videos of what can only be described as a very sloppy unsuccessful initial attempt to handcuff Nichols, and a later fixed video from a nearby lamppost showing a then-handcuffed, semi-conscious Nichols being kicked in the head and hit with batons, that any one of these officers had the opportunity to intervene and stop the insanity. At the very least, it is apparent that Nichols should not have been beaten and did not have to die that night.
The Duty to Intervene is Clear
Ignoring for now the obvious liability of the officer who inflicts excessive force, is there a duty on the part of a police officer watching the abuse to intervene (sometimes referred to as “intercede”) as he or she observes a fellow officer using excessive force in making an arrest?
Several published case decisions make it abundantly clear that there is.
Take for instance the case of Anthony Timpa, who, while exhibiting signs of extreme mental distress, apparently aggravated by the ingestion of cocaine, died at the hands of officers from the Dallas Police Department. As reported in Timpa v. Dillard (5th Cir. 2021) 20 F.4th 1020, an apparently obese Timpa was already handcuffed when Dallas P.D. Officer Dustin Dillard held him face down to the ground, kneeling on his back for 14 minutes and seven seconds as Sgt. Kevin Mansell and Officer Danny Vasquez stood by and watched. Timpa at some point quit breathing and, as the officers continued to stand and watch, eventually died.
Timpa’s estate sued Dillard and the other officers at the scene in federal court alleging the use of excessive force that resulted in Timpa’s death. The federal trial court found all the civil defendants to be entitled to qualified immunity and dismissed the lawsuit. However, the Fifth Circuit Court of Appeal reversed as to all but one of the officers, who had left the scene early in the confrontation. As for the others, the court (using body camera evidence) described the 14-minute ordeal, minute by minute, finding that the officers should have noticed that Timpa was slowly suffocating. Other officers not directly involved had a duty to intervene and not only failed to do so, but mocked Timpa when it appeared that he had passed out.
The court held that a jury could arguably find that the use of a prone restraint with bodyweight force on an individual with three apparent risk factors – obesity, physical exhaustion, and excited delirium – constituted unreasonable deadly force. The court based this holding on (1) the fact that the officers were trained that the prolonged use of a prone restraint on subjects in a state of excited delirium can result in positional asphyxia death; (2) prominent guidance from the Department of Justice concerning risks, including sudden death, associated with prone handcuffing and positional asphyxia; and (3) expert witness testimony from the plaintiffs concerning the substantial risks of a prone restraint with weight on an obese and physically exhausted person in a state of excited delirium.
Multiple Published Decisions on the Duty to Intervene
In addition to the above specific cases, the Ninth Circuit Court of Appeal has recognized this duty to intervene in a number of published decisions, as summarized in the case of Tobias v. Arteaga (9th Cir. 2021) 996 F.3rd 571, 583-584:
“(P)olice officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen,’ Cunningham v. Gates, 229 F.3rd 1271, 1289 (9th Cir. 2000) (quoting United States v. Koon, 34 F.3rd 1416, 1447 n.25 (9th Cir. 1994) . . . If an officer fails to intercede, ‘the constitutional right violated by the passive defendant is analytically the same as the right violated by the person who’ performed the offending action. Koon, 34 F.3rd at 1447 n. 25. For example, ‘an officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would, like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights.’ Id.; see also Robins v. Meecham, 60 F.3rd 1436, 1442 (9th Cir. 1995) holding that ‘a prison official can violate a prisoner’s Eighth Amendment [cruel and unusual] rights by failing to intervene’ when another official acts unconstitutionally. ‘[H]owever, officers can be held liable for failing to intercede only if they had an opportunity to intercede.’ Cunningham, 229 F.3rd at 1289; see also Ramirez v. Butte-Silver Bow County, 298 F.3rd 1022, 1029-30 (9th Cir. 2002) (no violation of duty to intercede where there was no evidence that the defendant was aware of the constitutional violation as it occurred), aff'd sub nom. Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2nd 1068 (2004).”
In Tobias, a 13-year-old’s interrogators failed to intercede when a third detective illegally threatened the minor with a more severe sentence if he did not confess and were therefore prevented from claiming qualified immunity when they were all sued.
California State Law
The California Legislature has taken the opportunity to statutorily add its two cents. Effective January 2, 2021, Gov’t. Code § 7286 (as amended several times since) has mandated that all California law enforcement agencies establish a policy that provides a minimum standard on the use of force. This policy is to include a requirement that an officer intercede (or “intervene”) when he or she sees another officer use excessive force.
This policy is required to include 20 specific items, including (but not limited to): The requirement that officers use “de-escalation techniques” and “crisis intervention tactics,” as well as other alternatives to the use of force when feasible, that an officer may use only that level of force that is proportional to the seriousness of the offense or threat, that officers are required to report incidents of excessive force used by other officers to a superior officer, and (as relevant to this article) a requirement that an officer intercede when seeing another officer use excessive force. Later (effective January 1, 2022), the following list of necessary requirements relative to a law enforcement agency’s policy on the use of force was added to Gov’t. Code § 7286:
1. Procedures to prohibit an officer from training other officers for a period of at least three years from the date that an “abuse of force” complaint against that officer is substantiated.
2. A requirement that an officer who has received all required training on the requirement to intercede and fails to act be disciplined up to and including in the same manner as the officer who committed the excessive force. Existing language in this section also requires an officer to intercede when he or she observes another officer “using force that is clearly beyond that which is necessary.”
3. A prohibition on retaliation against an officer who reports a suspected violation of a law or regulation by another officer, to a supervisor or other person at the agency that has the authority to investigate the violation.
Lastly, Subdivision (a)(4) was added to Gov’t. Code § 7286 as of January 1, 2023, defining “intercede” as “includ(ing), but . . . not limited to, physically stopping the excessive use of force, recording the excessive force, if equipped with a body-worn camera, and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time, and situation, in order to establish a duty for that officer to intervene.”
An Officer’s Duty to the Public Comes First
There was a day in law enforcement when attempting to intervene in another officer’s perceived use of excessive force – let alone reporting such to one’s superiors – was strongly, even if unofficially, discouraged. To intervene in a witnessed act of excessive force, and then to report the offending officer’s actions to supervisors, was considered the ultimate act of disloyalty to the reporting officer’s peers.
Such thinking can no longer be tolerated. For a law enforcement officer to hold true to this antiquated code of loyalty to one’s peers is a clear violation of the public trust, the latter taking precedence.
Today, it is recognized that it is the public you and I serve to which every law enforcement officer owes his or her ultimate allegiance. The current statutory and case law makes it abundantly clear that ignoring this reality will now potentially subject the offending officer to the same civil and criminal liability (not to mention departmental discipline) as the officer who actually uses the excessive force.
If you find this new way of thinking to be offensive, you might consider switching to a career as a plumber.