Failure to Intervene: When Officers Watch Their Partners Violate Rights

When we talk about police brutality, the focus is usually on the officer who swings the baton, fires the shot, or applies the chokehold. But there's often another officer present—one who watches it happen and does nothing. That officer isn't just a witness. Under federal civil rights law, that officer may be just as liable as the one who pulled the trigger. This is the "failure to intervene" doctrine, and it's an increasingly important tool for holding law enforcement accountable.

If you or a loved one was the victim of police misconduct, the bystander officer who stood by may be a defendant in your case—and their failure to act may be easier to prove than the use-of-force claim itself.

The Legal Foundation: Section 1983

Section 1983 of the federal civil rights laws provides a remedy for constitutional violations committed by persons acting "under color of" state law. When police officers violate the Fourth Amendment's prohibition on unreasonable seizures—including excessive force—victims can sue for damages.

The duty to intervene extends Section 1983 liability beyond the officer who directly commits the violation. An officer who fails to intervene can be held liable as if they participated in the underlying constitutional violation.

The Duty to Intervene: What the Law Requires

The Tenth Circuit Standard

The Tenth Circuit Court of Appeals (which covers Oklahoma, Kansas, Colorado, New Mexico, Wyoming, and Utah) has clearly recognized the duty to intervene. In Vondrak v. City of Las Cruces (10th Cir. 2008), the court held:

"An officer who fails to intervene to prevent a fellow officer's excessive use of force may be liable under § 1983."

To establish a failure-to-intervene claim in the Tenth Circuit, a plaintiff must prove:

1. A constitutional violation occurred (typically excessive force)
2. The bystander officer was present and observed the violation
3. The bystander officer had a realistic opportunity to intervene
4. The bystander officer failed to act

What Is a "Realistic Opportunity"?

This is the key factual question in most failure-to-intervene cases. Courts recognize that officers sometimes face rapidly evolving, split-second situations where intervention is impossible. The question is whether the officer had time and ability to do something.

Evidence of a realistic opportunity includes:

• Duration of the use of force: A beating that continues for 30 seconds offers more opportunity than a single punch
• Physical proximity: An officer standing feet away has more opportunity than one arriving at the scene
• The nature of the force: Ongoing violence (kicks, baton strikes, choking) offers more opportunity than a single gunshot
• Communications: Did the officer say anything to the violating officer? Did they call for a supervisor?

Courts have found a realistic opportunity existed where:

• Officers watched a colleague beat a handcuffed suspect for over a minute
• An officer stood by during a prolonged chokehold
• Multiple officers were present during sustained use of a Taser

Courts have found no realistic opportunity where:

• A shooting occurred in a fraction of a second
• The bystander officer was dealing with other suspects or threats
• The officer arrived after the force was completed

Why Failure to Intervene Claims Matter

1. Accountability for Police Culture

Excessive force doesn't happen in a vacuum. It happens because officers believe they can act with impunity—and that belief is reinforced when colleagues silently tolerate misconduct. Failure-to-intervene liability sends a message: silence is complicity.

2. More Defendants, More Insurance

Adding the bystander officer as a defendant can increase available insurance coverage. If the directly liable officer has limited indemnification or insurance, the bystander officer's policy may provide additional recovery.

3. Easier to Prove

Sometimes, proving excessive force is complicated—there's disputed testimony about what the suspect did, whether the officer perceived a threat, and whether the force was proportionate. But proving failure to intervene can be simpler:

• Was the bystander officer there? (Body camera shows it)
• Did the force continue for a meaningful period? (Timestamps show it)
• Did the bystander do anything to stop it? (No evidence they did)

If the answer is "present, watched, did nothing," the bystander is likely liable.

4. Qualified Immunity Is Weaker

Qualified immunity protects officers from suit unless they violated "clearly established" law. Defendants argue that the specific circumstances of their case weren't addressed by prior precedent.

But the duty to intervene has been clearly established in the Tenth Circuit since at least 2008. Officers cannot plausibly claim they didn't know they had a duty to stop their partners from beating a handcuffed suspect. This makes qualified immunity defenses harder to sustain in failure-to-intervene cases.

What Intervention Looks Like

Officers defending against these claims often argue they "couldn't" intervene. But intervention doesn't require physically tackling your partner. Courts recognize various levels of intervention:

Verbal Intervention

• Telling the other officer to stop
• Ordering them to step back
• Calling for a supervisor

Physical Intervention

• Stepping between the officer and the suspect
• Pulling the officer away
• Physically stopping the use of force

Reporting

• Immediately calling for a supervisor
• Documenting the misconduct
• Reporting up the chain of command

An officer who did nothing—said nothing, called no one, made no effort—is hard-pressed to claim they fulfilled their duty.

The Supervisor Liability Connection

Failure to intervene is related to—but distinct from—supervisory liability. Supervisory liability holds higher-ranking officers responsible for the misconduct of those they supervise. Failure to intervene can apply to officers of any rank who are present at the scene.

However, if a supervisor is present and watches a subordinate violate someone's rights, they face potential liability on multiple theories:

• Failure to intervene (they were present and did nothing)
• Supervisory liability (they failed to train or control their subordinate)
• Ratification (by watching without objection, they implicitly approved)

Recent Developments: George Floyd and Beyond

The murder of George Floyd in 2020 brought failure-to-intervene claims into the national spotlight. Three officers watched Derek Chauvin kneel on Floyd's neck for over nine minutes. All three were prosecuted—and two were convicted specifically for failing to intervene.

The federal prosecution of J. Alexander Kueng and Tou Thao resulted in convictions for violating Floyd's civil rights by failing to provide medical aid and failing to intervene to stop Chauvin's use of force. These convictions confirmed what civil rights attorneys have argued for decades: standing by is not neutral.

Many states have since enacted laws explicitly codifying the duty to intervene. While Oklahoma has not passed such legislation, the Tenth Circuit's case law already establishes the duty in civil Section 1983 cases.

Building a Failure-to-Intervene Case

Evidence You Need

Body Camera Footage

The most valuable evidence. It shows who was present, what they could see, how long the force lasted, and whether anyone attempted to intervene.

Witness Statements

Bystanders, other officers, or the victim themselves can testify about what they observed.

Timeline Reconstruction

Establishing the duration of the use of force is critical. A few seconds doesn't provide a realistic opportunity; a few minutes usually does.

Communications Records

Radio traffic, dispatch logs, and contemporaneous calls can show whether anyone called for backup, a supervisor, or medical assistance.

Defendants' Common Arguments

"It Happened Too Fast"

This works for split-second incidents (shootings) but fails when force continues over time (repeated Taser deployments, sustained beating, chokehold).

"I Was Dealing with Other Threats"

If the bystander officer was genuinely engaged with other suspects or threats, they may not have had a realistic opportunity. But body camera footage often contradicts this claim.

"I Didn't Realize It Was Excessive"

Willful blindness isn't a defense. An officer watching a colleague punch a handcuffed, non-resisting suspect cannot credibly claim confusion about whether intervention was warranted.

"I Did Intervene—I Told Him to Stop"

If true, this is evidence in the officer's favor. But if there's no video or audio of such an attempt, juries may not believe it.

Damages in Failure-to-Intervene Cases

Officers who fail to intervene are liable for the same damages as the officer who directly committed the violation:

Compensatory Damages

• Medical expenses (ER, surgery, rehabilitation)
• Lost wages and earning capacity
• Pain and suffering
• Emotional distress

Punitive Damages

If the failure to intervene demonstrated callous indifference to the victim's rights, punitive damages may be awarded to punish the officer and deter similar conduct.

Attorney Fees

Under 42 U.S.C. § 1988, prevailing plaintiffs in Section 1983 cases can recover attorney fees, making these cases economically viable even when damages are limited.

Practical Guidance for Victims

1. Request All Body Camera Footage

Not just from the officer who used force—from every officer present. The bystander's footage may be more valuable than the primary officer's.

2. Identify All Officers Present

Names, badge numbers, and roles of every officer at the scene. Some departments try to hide bystander officers; insist on complete disclosures.

3. Preserve Your Own Evidence

If you were recording, secure that footage. If witnesses were recording, get their contact information and copies.

4. Document Injuries Immediately

Photographs, medical records, and documentation of injuries support both the underlying excessive force claim and the damages from failure to intervene.

5. Consult a Civil Rights Attorney

Failure-to-intervene claims are complex and require experienced counsel. These cases involve qualified immunity analysis, municipal liability, and procedural requirements that general practitioners may not know.

Frequently Asked Questions

Can the bystander officer be liable even if the main officer isn't?

Theoretically, failure to intervene requires an underlying constitutional violation. But juries sometimes find the bystander liable even when the direct use-of-force claim is closer. The failure to act can be more obviously wrong than the split-second decision to use force.

What if the bystander officer was more junior than the one using force?

Rank doesn't eliminate the duty. A rookie has the same duty to intervene as a sergeant. Courts recognize that intervening against a superior is harder, but the law doesn't excuse inaction based on department hierarchy.

Does the duty apply to off-duty officers?

Generally no. The duty applies to officers acting in their official capacity, present at the scene in their role as law enforcement. An off-duty officer who happens to witness misconduct isn't automatically liable.

What if the bystander tried to intervene but failed?

If the officer made a genuine, reasonable attempt to stop the violation, they likely satisfied their duty—even if the attempt was unsuccessful. The question is whether they tried, not whether they succeeded.

Are cities liable for officers' failure to intervene?

Potentially. Under Monell liability, cities can be liable if a policy, custom, or failure to train caused the constitutional violation. If a department's culture tolerates silent complicity, the city may share responsibility.

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The duty to intervene reflects a basic moral principle: if you can stop harm and choose not to, you share responsibility for that harm. In policing, where officers have unique power over citizens' liberty and safety, this duty is essential to accountability.

At Addison Law, we represent victims of police misconduct in civil rights cases throughout Oklahoma and the Tenth Circuit. We know how to build failure-to-intervene claims, overcome qualified immunity, and hold every responsible officer accountable. Contact us for a free consultation.

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This article is for general information only and is not legal advice.