Peace Officer’s Duty to Intercede: Common Sense or Muddy Waters?

December 28, 2020

Absent general professional policing standards and the existence of common sense, the duty of a peace officer to intercede in a peer’s unreasonable use of physical force has existed in some police policies for many years. However, the in-custody death of George Floyd in Minneapolis has once again ignited a fervor within the police reform movement (i.e., 8Can’tWait) prompting changes in police policy and new legislative proposals. This narrative focuses on providing a broad-based overview and discussion of a peace officer’s duty to intervene. The intent is solely to increase stakeholders’ (i.e., investigators, police executives, prosecutors, etc.) knowledge and to enhance their ability to make informed decisions.

The Current Legal Framework

[Please note, I am not an attorney. This is not legal advice. Consult your representatives before implementing any changes to policy or procedures.]

A Peace officer’s duty to intervene is inextricably intertwined with the standards guiding the use of force (UoF). Therefore, any real-world evaluations of the obligation to intervene must begin by determining whether the originating UoF was unreasonable. As the Supreme Court stated in Graham v. Connor, an assessment of force should focus on a reasonable officer’s perspective of the totality of circumstances (TOC). The TOC includes but is not limited to: (a) the severity of the crime, (b) the potential for injury to the officer or others, (c) the suspect’s level of active resistance or flight, (d) tense, uncertain, rapidly evolving events, and (e) the need for rapid decision-making. The major TOC topics listed represent an infinite number of potential factors influencing each unique situation. For instance, the potential for injury may be further understood by comparing the officer and the suspect’s size, strength, gender, and martial capabilities.

The objective facts included in the TOC and known to the officer are central to determining reasonableness. However, the SCOTUS identifies the need to view the TOC from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”. However correct this method may be, it also adds a level of ambiguity to an investigation. This ambiguity may be why many disagreements exist between law enforcement executives, scholars, and the courts on what constitutes reasonable force in any given situation. Considering the depth and breadth of force investigations where disagreements of reasonableness persist, stakeholders should consider what investigatory framework will determine if an officer failed in their duty to intervene?

The evaluative framework (duty to intervene) described by the courts appears founded upon whether an officer had time to perceive and act upon a peer’s excessive force. In fact, I believe the following equation, based on insights from attorneys Laura Scarry and Jack Ryan and Chief Ken Wallentine, may help others remember the framework: Excessive Force (EF) + Perception(P) + Time(T) = Duty to Intervene (DTI). My research demonstrates most agency policies adhere to this equation (EF + P + T = DTI) by stating officers must intervene if force is “clearly beyond that which is objectively reasonable,” and they must intercede only when reasonably able or feasible. Unfortunately, some existing proposals may create additional challenges for police agencies and their officers.

Muddy Waters: Proposals for the Future

There are growing indications that legislators and some policymakers wish to enhance this topic’s standards and subsequent officer accountability. New proposals include language that appears to require officers to predict the future or ignore the important legal language linked to the previously discussed calculous (EF + P + T = DTI). For example:

A recent Baltimore Police Department policy (draft) requires officers to, “Take a preventative approach, whenever possible if observing behavior that suggests that another member is about to engage in unethical or inappropriate behavior.” This narrative is like that suggested by the Police Executive Research Forum (PERF) that infers officers are expected to perceive and act against potentially unreasonable force in a predictive way. Additionally, PERF recommends training officers to “detect warning signs that another officer might be moving toward excessive or unnecessary force.” In my opinion, this type of language appears to conflate deescalation with the affirmative duty to intervene in excessive force.

Examples of enhanced accountability may be found in newly proposed legislation in both California and Massachusetts. California’s proposal, detailed in Assembly Bill No. 1022, holds officers criminally accountable for failing to intervene by stating the officer is to be identified as an “accessory…in any crime committed by the other officer during the use of excessive force”. The Massachusetts bill, detailed in MA State Senate Bill 2963, describes revoking a peace officers’ certification “after a hearing,” where it would be determined if the officer failed to intervene in force, “beyond that which is necessary or objectively reasonable.”  Unfortunately, neither of the legislative proposals identify evaluative criteria for determining when and if an officer had the opportunity to intervene.

Mistake-of-Fact Intervention?

The point of this article is not to dissuade anyone from intervening in unreasonable/excessive force. Instead, it is meant for stakeholders to consider how the ideology behind the duty to intervene may not always be as straightforward in practice as it is on paper. Consider this example:

Deputy Sheriff Smith engages in a lawful criminal contact that very quickly turns into a ground fight. During the ground fight, a holster lands on the ground, and the actively resistive suspect continues to grab for something in his pocket. Deputy Smith uses closed fisted strikes from a semi-mounted position to gain control and stop the suspect from obtaining a weapon. Sheriff Smith’s TOC includes his knowledge of the suspect as a violent gang member on parole who is often armed.

Deputy Robert’s responds as the cover on this pedestrian stop. Upon arrival, he sees both Deputy Smith and the suspect are on the ground facing away from him. He cannot see what the suspect is doing but sees Deputy Smith appears to have the advantage while punching the suspect with closed fists. Deputy Robert’s quickly approaches and states, “I’ll take over.” Intently focused on saving his own life, Deputy Smith does not hear Robert’s or know he is on the scene (e.g., tunnel vision/auditory exclusion). Having not received a response, Deputy Robert physically intervenes. Deputy Robert’s TOC is a suspect on the ground being punched repeatedly for no reason.

Ultimately, additional officers arrive and take the suspect into custody. No gun is found. Per policy, Deputy Robert’s reports the excessive force and his attempts to intervene.

A ten-thousand-foot view of this event shows the differences in the perceptions of reasonable officers on the scene based upon their version of the TOC. One officer perceives his life to be in danger, while the other perceives the force to be excessive. The difference is in the different perceptions, both reasonable, created by two different TOCs. An event like this can have catastrophic outcomes in the field that may extend to the administrative aftermath. Therefore, we must make enhanced use of force training a priority in police reform. Enhanced use of force training should combine with learning objectives linked to deescalation and the duty to intervene.

Conclusion and Recommendations

I want to make it clear that nothing in this narrative is intended to deter from an officer’s affirmative duty to intercede verbally, if not physically, in instances of force that are clearly beyond what is objectively reasonable. I fully believe an officer’s failure to intervene in known unethical or criminal activity stains every single badge in the nation. However, the previously discussed example demonstrates that mistakes can be made in a split-second decision to intercede. Hence, the underlying ideology that guides the duty to intercede in perceived instances of excessive force should be aligned with the same ideology that guides training on the use of force/deescalation.

First and foremost, officers need to have an in-depth understanding of their use of force/deescalation policy and associated legal standards. Officer’s should not only be taught the tenants of reasonable force but also how to identify and respond to unreasonable force. Expectations linked to the use of force such as slowing down and assessing situations before acting may also be of use in training the duty to intervene. However, these tactics must be weighed against the need to engage to stop a suspect from harming a fellow officer or to stop a fellow officer’s obvious use of excessive force. The methods of recurring training on this topic should include a combination of policy review and graded testing, tabletop scenarios, video training, and most importantly, reality-based-training scenarios. Scenarios should be intermixed and include randomized regular use of force, deescalation, and intervention training objectives.

On the back end, investigators may wish to establish a framework that measures the reasonableness of an officer’s duty to intervene. Obviously, there is a need to find the originating force excessive based on a legal or administrative framework. Once the force has been clearly determined as excessive, significant attention should be paid to the information available to the “intervention” officer before arrival, what information was available post-arrival, and whether time was available for the officer to perceive that information and safely act to intercede.

The bottom line is that the duty to intervene is an important topic with implications for the officer using force, the backup officer(s), and the suspect(s) involved. The implications for failing to properly intervene include potential injuries to officers and suspects, reduced public trust, criminal and civil litigation, as well as administrative sanctions against the officers involved. Policy language, training, and investigatory methods will have a significant influence on how the duty to intercede is interpreted and practiced in the field. Be Safe/Be Vigilant.

Editor’s note: For more on this topic be sure to take a look at the Calibre Press program, “Duty to Intervene: Policy, Practice, Training & Buy-in

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