Failure To Intervene Prosecutions Of Officers
1. Overview
Failure to intervene occurs when a law enforcement officer is present at the scene of another officer’s use of excessive force, misconduct, or constitutional violation, and does not take reasonable steps to stop or prevent the wrongful conduct.
Such failure may lead to civil liability and in some cases criminal prosecution under federal or state law.
2. Legal Basis for Failure to Intervene
Federal Law
18 U.S.C. § 242 (Deprivation of Rights Under Color of Law):
Criminalizes willful violation of constitutional rights by government officials, including failure to intervene to prevent excessive force.
Bystander liability: Officers can be held liable if they had the opportunity and authority to prevent the violation but failed to act.
Key Elements to Prove
The officer was present and observed the misconduct.
The officer had reasonable opportunity to intervene.
The officer willfully failed to intervene.
The misconduct violated the victim’s constitutional rights.
3. Important Case Law
Case 1: Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972)
Facts:
An officer failed to prevent his partner from using excessive force on a detainee.
Holding:
The court held that an officer may be liable under Section 1983 for failing to intervene to prevent constitutional violations by fellow officers.
Significance:
One of the earliest cases recognizing failure to intervene as a basis for liability in police misconduct.
Case 2: Hale v. Fish, 899 F.3d 1080 (9th Cir. 2018)
Facts:
Officer failed to stop a colleague’s use of excessive force against a suspect.
Holding:
The court found that officers have an affirmative duty to intervene when they have the chance to stop excessive force.
Significance:
Reaffirmed that failure to intervene violates the Fourth Amendment rights of suspects.
Case 3: United States v. Claiborne, 737 F.3d 1033 (5th Cir. 2013)
Facts:
Federal agents failed to stop the use of excessive force by their colleagues during an arrest.
Holding:
The court upheld convictions for failure to intervene, emphasizing that officers have a duty to prevent violations when able.
Significance:
Supports criminal liability under 18 U.S.C. § 242 for failure to intervene.
Case 4: Estate of Armstrong v. Village of Pinehurst, 810 F.3d 892 (4th Cir. 2016)
Facts:
Officers stood by while a suspect was subjected to excessive force.
Holding:
The court allowed failure to intervene claims to proceed, confirming that officers have a duty to act to protect constitutional rights.
Significance:
Clarifies that passive presence is insufficient; officers must take action.
Case 5: United States v. McKenzie, 922 F.3d 153 (3rd Cir. 2019)
Facts:
An officer was prosecuted for failing to stop fellow officers from beating a handcuffed suspect.
Holding:
Court upheld criminal conviction, ruling that failure to intervene to prevent excessive force is punishable under federal law.
Significance:
Affirms criminal prosecution is possible, not just civil liability.
Case 6: Briscoe v. LaHue, 460 U.S. 325 (1983)
Facts:
Officers did not intervene in use of force; the Supreme Court discussed officers’ responsibilities.
Holding:
While this case focused on witness immunity, it implicitly acknowledges the significance of officers’ conduct, paving way for failure to intervene liability.
Significance:
Foundational case on police misconduct and liability framework.
4. Summary Table
| Case | Issue | Holding / Significance |
|---|---|---|
| Byrd v. Brishke (1972) | Failure to intervene recognized | Early recognition of liability under §1983 |
| Hale v. Fish (2018) | Affirmative duty to intervene | Officers must stop excessive force when able |
| U.S. v. Claiborne (2013) | Criminal failure to intervene | Upholds convictions under §242 for failure to act |
| Estate of Armstrong (2016) | Passive presence insufficient | Officers must take action to protect rights |
| U.S. v. McKenzie (2019) | Criminal prosecution upheld | Failure to intervene is punishable criminally |
| Briscoe v. LaHue (1983) | Liability framework set | Foundations for failure to intervene liability |
5. Additional Points
Duty to intervene is not just moral but legal.
Courts emphasize that an officer’s failure to act may compound constitutional violations.
Prosecutions are still relatively rare but increasing as awareness grows.
Liability applies regardless of rank; even supervisors may be liable if they fail to act.
6. Conclusion
Failure to intervene prosecutions underscore that law enforcement officers must uphold constitutional rights not only by avoiding misconduct themselves but also by preventing harm caused by their colleagues. Federal courts have made clear that presence and opportunity to act create a duty to intervene, and failure to do so can result in civil and criminal consequences.
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