Liability Based on Agency or Individual Failure To Intervene
By Jack Ryan

An Agency or Individual Officer’s Response to Misconduct by Others May Create Agency or Individual Liability

In many federal lawsuits against police officers and agencies, attorneys bringing the suit will look beyond the officer who is alleged to have violated the rights of the attorney’s client. Plaintiff’s attorney will attempt to bring the agency or additional officers into the suit. Additional officers will be brought in where their acts or omissions can be connected to the plaintiff’s injury. The agency can only be added where there is some policy, custom or failure in training, supervision or discipline that leads to the constitutional violation.

A recent case from the United States District Court for the District of Connecticut demonstrates the importance of the internal affairs process with respect to agency laibility.*1 Jose Galindez, a former arrestee, filed a complaint alleging excessive force by Officer Martin of the Hartford Connecticut Police Department (HPD). The complaint sat dormant for seventeen months until Galindez filed a lawsuit against Officer Martin and the city.

The city sought to be dismissed from the suit asserting that there was no policy allowing excessive force. Galindez countered by alleging that the internal affairs process left officers with a feeling of impunity with respect to allegations of excessive force. As such the internal affairs process constituted a policy that encouraged excessive force.

As evidence Galindez cited statistical data from the Internal Affairs Division. This data demonstrated that complaints would languish for long periods of time with no action taken on some of them while others were closed with no investigation at all. In reviewing complaints for the years 1999-2001 no complaints were sustained against an officer or discipline meted out. Galindez also cited his own complaint which sat for nearly seventeen months without any investigation whatsoever until his federal lawsuit was filed.

The City of Hartford raised the fact that a complaint process was in place in defense of Galindez’ claim. The court rejected the argument that having such a process served as a shield to municipal liability. The court asserted that the critical question is whether the procedural safeguards provided by the complaint process are “reasonably adequate or obviously deficient.”

The court concluded that a reasonable jury could conclude that the City of Hartford does not take complaints of excessive force seriously, “as shown by a pattern of allowing complaints to molder and turn gray without adequate attention (until the epiphany of federal civil litigation inspires action), and fails to impose any form of discipline on officers against whom excessive force complaints have been lodged (at least during a three year period from 1999-2001 in which over seventy complaints have been filed).”

The court further found that a reasonable jury could conclude that “Hartford had a policy or pervasive pattern of deliberate indifference to the possibility that its officers were prone to use excessive force, as demonstrated principally by Hartford’s failure to reasonably investigate complaints and the absence of punitive consequences for any accused officer, that such policy or pattern , may have emboldened or implanted a sense of impunity in its officers, resulting in the challenged first offense by this defendant (Officer Martin), and that the offense would not have occurred had proper investigation and police discipline procedures been in place. The court determined that the case should proceed to a trial by jury on the claim against the city.

Action Steps:

Review IAD Policy-Are there proper time limits on investigation of complaints? The IACP model policy places a 45 day limit on investigations unless investigator commits to writing a reason for an extension.

Best practices as outlined by Department of Justice in consent decrees range from 45-150 days unless extended in writing.


Individual Officers may be Liable for Failing to Protect Citizens from Police Misconduct

How should an officer react when he or she observes a colleague commit an act of excessive force in his or her presence? It is a basic principle of supervisory responsibility that supervisors must intervene into subordinate officers conduct, but what about officers of equal rank? Two recent cases make clear that officers who have an opportunity to intervene in an excessive use of force must do so, or risk personal liability for a civil rights violation based upon their failure to intervene.

Samuels v. Cunniingham et al.,*2 involved an apprehension by four detectives of the Wilmington DE. Police Department. The four detectives had approached Samuels who was leaning into the window of an automobile; as they did so, both the auto and Samuels fled. Samuels was apprehended by the four detectives and handcuffed. After he was handcuffed, a fifth detective, Detective Hall ran up and allegedly punched Samuels in the ribs. Samuels was transported to the hospital and treated for a fractured rib.

Samuels filed suit against the detective who allegedly punched him as well as the other detectives who were present when he was punched. His allegation against the four detectives who were merely present was based upon their failure to intervene in the conduct of their colleague. The detectives and the City of Wilmington sought a dismissal of the suit.

In reviewing the case the court noted the sequence of events and concluded that the four detectives had no reasonable opportunity to intervene in the punch since it was a single punch and there simply was no way for the four detectives who had apprehended Samuels to anticipate that Detective Hall would punch the handcuffed suspect. The court also dismissed claims against the City of Wilmington. The claims against Detective Hall, who allegedly threw the punch were allowed to proceed to trial.

The second case, decided September 30th 2003, found that the law with respect to officers who have an opportunity to intercede in excessive force is clearly established and may create liability for officers who fail to do so.*3

Jones was a passenger in a vehicle that was stopped following a phony car-jacking call to the police. Officer Nichols and Rodriguez of the Hartford CT. Police Department approached the driver, Easterling, while Officer Murtha approached Jones.

After Jones was taken from the car, he protested that he had done nothing wrong. Officer Murtha then allegedly threw Jones to the ground and kicked him several times, including kicks to the face that caused a bloody lip. Murtha then picked Jones up from the ground, kneed him in the groin several times and then ripped his pants off him. It should be noted that the officers acknowledged Jones’ bloody lip and ripped-off pants.

The court found that Officer Nichols and Rodriguez had no opportunity to intervene in the kicks, but had opportunity to intervene in the other acts allegedly committed by Murtha.

In refusing to dismiss claims against Rodriguez and Nichols the court asserted: “ Police officers have an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in their presence by other officers.” Officers who fail to intervene may be liable for the harm caused by their colleagues.

Note: Many agencies have developed policies requiring officers to report observed excessive force by others and require immediate investigations of all uses of force.

Hypothetical: (Sergeant should use names of officers at the roll-call to emphasize the reality of such hypothetical situations):

Officer Boehm, let’s suppose we have a high-speed pursuit this evening. The pursuit travels some distance and the suspect makes several aggressive actions toward police cruisers. Let’s further suppose that the suspect finally bails out of his vehicle proceeds to flee on foot. Officer Malloy (the primary officer in the chase) catches the suspect and begins to assault the suspect who at this point has given up and is submissive.

Questions:

What are your obligations to our department?

What are your obligations to the suspect?

What are your obligations to your brother and sister officers?

Do you expose yourself to personal liability if you fail to intervene in this excessive use of force?