How to Hold Bystander Officers Accountable for Failing to Intervene When Colleagues Misbehave

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According to the CATO Institute, there were 5,986 reported cases of police misconduct in 2010. Although these cases are often framed as lone wolves acting alone, the truth is there are typically quite a few people involved in the situation, namely bystander cops who do nothing to stop their colleagues from misbehaving. In addition to suing the officer that caused your injuries, you can also hold the other cops liable using failure to intervene laws.

Here's what you need to know about filing this type of lawsuit.

Elements of Failure to Intervene Lawsuit

Police officers have an obligation to protect citizens from harm, including from those within their ranks. A cop who does nothing to prevent or stop other officers from unnecessarily injuring defendants or violating their civil rights can be held accountable for their inaction in court. Successfully winning a lawsuit against those officers and the agency they work for requires you to prove the following elements:

• The bystander officers were fundamentally involved in the situation
• The bystander officers had an opportunity to act and failed to do so
• You sustained compensable injuries
• The offending officer(s) misconduct was the proximate cause of your injuries

Of all the elements, the most challenging to prove is the bystander cops were fundamentally involved in the incident, because there is no clear definition of what constitutes participation, thus requiring a case-by-case interpretation by the courts. In general, you would have to show the officer(s) had some knowledge of or control over the situation.

For instance, two officers are riding in a squad car together and the driver decides to pull over a motorist, even though the passenger knows there is no probable cause to do so. The bystander cop's knowledge of the situation would likely qualify him or her for legal action. On the other hand, a cop on riot patrol on one street couldn't be held responsible for another cop in a different area throwing a flash bang grenade into a crowd because he or she wasn't there when the incident happened nor had prior knowledge it would occur.

The other thing you may have trouble with is showing the bystander cop had an opportunity to intervene and stop the perpetrator from taking action. In Samuels v. Cunningham, the plaintiff was injured when one of the four officers detaining him fractured his ribs. In addition to suing the offending officer, he included the other three cops in the lawsuit for failure to intervene. However, the court ruled the other three officers had no opportunity to stop the attack because they didn't know it was going to happen beforehand and the offending officer only hit the plaintiff once.

To hold bystander cops liable, there has to be a moment when it's clearly evident they should have stepped in to stop impending or ongoing misconduct by their colleague.

Litigation Challenges You May Encounter

It's not unusual for government agencies to require plaintiffs to file a formal complaint with them first before filing a lawsuit, for example. Generally, you must do this within a specified period of time (e.g. 60 days after the incident) and wait until you receive a response from the agency. Failure to do this bars you from taking the case to court, so it's essential you find out what the rules are in your state and following them to the letter to protect your rights.

Another issue is, even if you win your case, your damages may be capped by state law. In Florida, for instance, you can only be awarded a maximum of $200,000 per person and $300,000 per claim against a government agency. If your damages and losses exceed this amount, you'll need to find a way to hold the officers personally liable for the leftover balance.

For more information about this issue or help litigating a case against the police, contact law firms like Walsh Fewkes Sterba.

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13 March 2017