Police Officers Duty to Intervene

TASA ID: 321

Police departments in the United States are currently dealing with many issues including appropriate “use of force,” “defunding issues” and whether or not to intervene on another officer’s actions which is called “duty to intervene.” Since many recent encounters involving police officers’ actions have resulted in deaths and serious injuries, these responsibilities and actions have come into the public awareness and are undergoing a great deal of scrutiny. Questions have arisen regarding if their actions are justified, or if the other police officers on the scene had a duty to intervene. The George Floyd case is one of the most notable ones involving police actions and non-interventions, but unfortunately there are many others.

These cases bring to light the issue of when a police officer is faced with a situation that may require force and what the appropriate responses and responsibilities of the officer and of any other officers on the scene should be. If one officer goes beyond the scope of accepted or reasonable actions when restraining a subject, do the other officers have a duty and a responsibility to intervene and if so, what steps should be taken? There are many misconceptions about this and many questions have arisen about why other officers don’t step in to limit the restraints.

We are living in an era where every incident of police use-of-force is highly scrutinized. Every altercation is videotaped, reviewed, and critiqued by the police, the public and the media. In recent years, there have been altercations and situations that have resulted in lawsuits, riots, protests, lack of respect for police officers and more. It is imperative in this volatile climate that all police officers use good judgement and follow all the rules, but often the rules are existing in a grey area.

While there is no universally agreed-upon definition of the rules of use-of-force, most police jurisdictions follow the basic Use-of-Force Continuum. However, not all agree on this model. Experts often disagree on what should be included in the policy, how detailed it should be and even on what the appropriate responses are. It is a highly scrutinized topic and one that is going to need continuous review and improvement.

When writing or reviewing any duty to intervene issue, a basic starting point is a clear understanding of the Use-of-Force Continuum. Most typical use-of-force policies start with the officer(s) using the least amount of force, escalating to the use of deadly force when warranted. While most use-of-force policies differ, a good policy will include some basic tenants and rules, as well as addressing risk management issues. All use-of-force policies should outline exact levels of force actions a police officer is permitted to take when responding to a situation. It should include when use-of-force is necessary and permitted, as well as detail which specific steps can be taken at each level. It should also include specific situations where police officers can deviate from the normal progression of escalating steps. For example, it could include the following:

• Officer Presence — No force is used. This is the preferred resolution where the presence of a law enforcement officer works to deter crime or diffuse a situation. In this situation the officer is not threatening and is professional in their interactions.
• Verbalization — Non-physical force is used. At this level, the officer remains calm but issues commands such as asking for identification, saying “stop”, etc. They may raise their voice but there is never any physical contact.
• Empty-Hand Control — This level is when law enforcement may use bodily force to gain control of a situation. However, these are always soft force techniques such as grabbing, holding, restraining, etc.
• Non-Lethal Control – This level includes hard techniques when officers may use harder physical, but not lethal, techniques including punches and kicks to restrain an individual. This level can also include use of a blunt impact object such as a baton or even a chemical spray, such as pepper spray to restrain or stop a person or group. Some Use-of-Force policies also allow police to use tasers at this level.
• Lethal Force —This is the last level and should only be used when all else fails. This level allows officers to use lethal and deadly weapons to gain control of a situation if there is a serious threat to the officer or others.

Unfortunately, while there is no universally agreed-upon definition of use-of-force, the International Association of Chiefs of Police describes use-of-force as the "amount of effort required by police to compel compliance by an unwilling subject." And since every situation is unique and the events surrounding every crisis may differ, it is imperative that officers are aware of their department’s rules regarding how and when to use force in any situation. It is generally assumed that while officers should utilize whatever is necessary to protect themselves and others, they should always start with the least amount of force needed to gain control and to alleviate the situation.

The duty to intervene issue then applies to the responsibility of other officers to intercede in a situation that they deem is the use of excessive force. While the duty to intervene can be interpreted many ways, in simple terms it means that officers should step in and stop a situation where they are seeing excessive force being used or there is any abuse of a suspect or arrestee. However, it is not always that simple. In any situation involving use of force there are many factors that must be taken into account, including the threat of violence or bodily harm as well as the psychological aspect of fear. Often when officers are involved in a situation that they perceive as threatening, tense or is very fast moving, they may not realize that their use of force is going beyond the Use-of-Force Continuum or allowed responses and they may overreact. The problem is that while they are highly trained, a very human fear response may take over and it is possible to react instinctively. This must also be taken into account when judging an officer’s responses to a situation.

Where all this can get more confusing is in the interpretation of the rules. Even the courts can define it differently. For example, the 2nd Circuit Court defines the duty to intervene as follows: “A police officer is under a duty to intercede and prevent fellow officers from subjecting a citizen to excessive force, and may be held liable for his failure to do so if he observes the use of force and has sufficient time to act to prevent.” (Figueroa v. Mazza 2016)

Similarly, the 7th Circuit outlines what the plaintiff must prove to demonstrate a failure to intercede in a use of force scenario (7th Pattern Jury Inst.): A duty to intervene policy mandates that officers step in and stop any case where they witness what they know to be excessive force or any other abuse of a suspect or arrestee.

Most police departments are instituting a duty to intervene policy that mandates that any other police officers who are on-site step in and stop any excessive force or any other abuse of a suspect or arrestee. Some department policies even allow this type of intervention if the officer using unreasonable force is from a completely different agency.  And while police forces around the country are currently reviewing and updating their policies, there are still grey areas. Legal requirements regarding the duty to intervene must be taken into account when crafting any policy. Departments have latitude when it comes to what they put in their policies regarding the actions that their officers may take. Some policies mandate that intervention is required even if the officer using unreasonable force is from a completely different precinct or law enforcement agency.

In today’s society, all police departments need to have a duty to intervene policy that is well-crafted and includes the following:

• Intention: This section should state the purpose of the policy. It needs to outline in a few sentences the reason for the policy and for whom it is being written.
• Specifics: This section defines the specifics of the policy. For example, it defines the specific types of intervention and what should be done if an officer is involved in or witnesses a violation of the policy.
• Definitions: This section specifically states the definitions of intervention; procedures; conduct; use of force; constitutional rights; federal, local and state laws; misconduct; verbal commands; and physical restraint.
• Review: This section covers how often the policy will be reviewed and how it will be communicated to all personnel.

While having a strong duty to intervene policy may not completely stop situations of excessive force, it will provide structure and guidance for police officers, as well as help protect the police force, the city and all other involved in the event of a legal filing.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

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