Creating A Cop’s Duty To Intervene

There’s a joke: What do you call 1000 good cops and ten bad cops? 1010 bad cops, because those ten couldn’t be bad, couldn’t persist, but for the acquiescence of the good cops. There is a well-known phrase, “the blue wall of silence,” referring to the police historically protecting their worst and themselves from outside scrutiny. If you’re a cop, ignore the wall at your peril. Ask Frank Serpico how that works.

But these are cops, not criminals, and rather than characterize what they do, and don’t do, as a pejorative like “snitching,” it should be viewed as a positive duty to maintain the law, their integrity and the virtue within their own ranks.

Cops want to believe they are the good guys. They want to believe they are there to help. They want the respect of the public, and want to believe they deserve it. But “wants” aren’t good enough. Quis custodiet ipsos custodes?

What if there was an affirmative legal duty for cops to intervene when a fellow police officer was engaging in criminal conduct?

Our years of studying constitutional civil rights have taught us that police policies and even criminal statutes are not enough to overcome the “blue wall of silence” among officers. What’s needed are state laws that create an affirmative duty for bystander cops to intervene to prevent use of excessive force or other civil rights deprivations, and that allow civil suits against cops who don’t.

But wait, you say. There are criminal laws against the improper and excessive use of force already. There are departmental regulations that could cost a cop his job and pension. And then there’s both a federal crime of deprivation of civil rights and a federal cause of action if it happens. With all these laws already available, why hasn’t this done the trick?

Victims of police misconduct should not have to rely on inadequate department policies or prosecutorial whims for protection or redress. Criminal charges in cases of police violence are extremely rare. Tellingly, it took a week for Chauvin to be charged with second-degree murder and his fellow officers with accomplice liability as protests against racially motivated police violence erupted around the globe.

All victims of crimes are, to some extent, at the whims of prosecutors, not to mention the competence of cops to catch the criminal. But it obviously is rare, and as every Law & Order fan knows, the cops and prosecutors rely on each other, making the relationship too symbiotic for comfort. As for the week it took for Chauvin to be charged, there was nothing to be done until their was an autopsy report showing cause of death, so that’s a bad example. Even worse, the autopsy report doesn’t quite support the charges, which will be a huge problem when trial comes and popular certainty of his guilt (but we saw it in the video) gets shredded by medical science. Yes, the knee was on George Floyd’s neck. No, that doesn’t mean it was the cause of death, and if it wasn’t, Chauvin’s conduct, despicable though it may be, wasn’t murder.

By contrast, empowering individuals to bring civil lawsuits against bystander cops who fail to intervene — with the threat of monetary damages — would force officers to act. This might sound like a novel idea, but U.S. history teaches otherwise.

Indeed, in a series of laws enacted in 1871, Congress created a private cause of action against state actors who violated a person’s constitutional rights. Notably, they left out federal actors, which was later extended by the Supreme Court in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. Bear in mind, in 1871, policing crime was almost entirely a state and local matter, with the now-ubiquitous fed alphabet agencies not yet being a twinkle in J. Edgar’s eye.

But then, Section 1983, et seq. didn’t fix the problem either. To some extent, the dreaded qualified immunity that allowed cops to do horrible things without liability impaired the ability of the law to have its intended impact. But to another extent, qualified immunity only resulted in dismissal in 3.9% of cases. So if 96.1% of police misconduct cases against cops proceeded, that should have been sufficient to have its intended impact.

And yet, here we are, cops still using excessive force with relative impunity, and bystander cops neither intervening to affirmatively protect the public from thugs in blue or even telling the truth after the fact. What makes this so important is that a fellow cop can do what you, as a member of the public, can’t do.

Requiring officers to intervene makes sense for several reasons. When violence is perpetrated by law enforcement, bystander police officers are often the only people who can safely intervene. Civilians cannot be expected to stop an officer from assaulting a victim: They would risk arrest for obstructing justice and possibly face bodily harm themselves.

The scenario is one of helplessness and powerlessness, where a cop abuses a person (not a civilian, as cops are just as much civilians as anyone outside the military) and any resistance to protect oneself from the violence gives rise to greater violence, potentially death. If only there were a force that existed to protect people from such violence perpetrated by those whose job it is to protect people from violence.

Police officers’ unwillingness to report misconduct by other officers and their tendency to retaliate against those who do are common dynamics of police culture. If officers were required to intercede and supported in doing so, pressure would be reduced on those who currently hesitate to act. Anti-retaliation provisions, such as those in Colorado’s broad new police accountability bill, which also mandates a duty to intervene, would further protect officers who take a stand.

Unlike § 1983, can a state law creating bystander cop liability fix the problem that the feds, prosecutors and police departments have failed to fix? The facile argument is that it can’t hurt, and will offer another path for redress against cops who let “bad” cops kill. But it always raises the same questions that have stymied these cases all along. How does a bystander cop know where, exactly, the line is between a cop properly using force and a cop violating a person’s constitutional rights? And it won’t make the cop who intervenes popular on the force, which could mean the backup he expects from fellow cops doesn’t materialize when it’s his life on the line.

These are all intransigent problems, largely left to the integrity of police to address by their own internal culture and beliefs. If they want to be clean and good, they can be, and they can rid their ranks of violence, crazy or dishonest, union arbitration notwithstanding. Whether anyone, any law, any system, can make them be what they don’t want to be, however, isn’t so easily answered. A lot of hard thought has gone into this, including from good cops who sincerely want to “protect and serve.” Answers are easy. Correct answers remain hard to find.

11 thoughts on “Creating A Cop’s Duty To Intervene

  1. Jeff

    Two L&O references in one week, and it’s only Thursday. How about a hat trick; maybe Mudlick will see a visit from Sam Waterston this week.

    Reply
  2. Erik H

    This seems unlikely to work and may well backfire. It’s the same thing that happens with a “there is no neutrality” approach in politics: Some of the prior neutrals are driven to the “wrong” side.

    In any situation, a potentially-intervening cop can avoid liability in either of two ways:

    1) Intervene and stop violence. We want this but there is a high risk to the intervening cop (hostility within force; direct danger in the process of intervention; taking the fall for bad outcomes; maybe getting sued anyway for not intervening fast enough; getting tagged for intervention which was later called “unnecessary”, etc.)

    2) Join in the violence, or at least join in lying about the justification (arrestee’s risk, danger, weapon possession, “resistance”, “furtive movements”, etc.) thereby making the violence allowable and removing liability.

    Some cops will choose #1 I expect, but these laws will incentivize some otherwise-neutral cops to choose option #2.

    Reply
  3. rsf

    Focusing on the “bystander” police to get them to intervene and/or report is integral to resolving the issue with police. As for the “whims” of the prosecutors, the local prosecutors should not be handling cases against the local police. There is too much pressure for the case to be closed. It can be seen time and again that cases which would be tried against anyone else are dismissed against a local officer. That comes from the perverse incentives and pressures placed upon the prosecutor’s office to resolve the case as bloodlessly as possible.

    Reply
    1. SHG Post author

      I often wonder when someone writes a sentence like “Focusing on the “bystander” police to get them to intervene and/or report is integral to resolving the issue with police,” whether they realize they’ve contributed absolutely nothing?

      Reply
  4. B. McLeod

    So if fellow officers know that a chauvinist colleague is a bastard to everyone and uses excessive force on nearly every call, what is the scope of their duty to intervene? Do they have to block the bad officer from responding to calls? Do they all have to go with him on any calls to make sure he behaves? Do any of them have to go with the bad officer to make sure he behaves? If the answers to the foregoing are all “no,” officers can weasel out of the duty by making sure they don’t go close to scenes where the bad officer is responding.

    Reply
    1. SHG Post author

      It’s not one bad cop, and it’s not as if one cop is always bad while other cops are always good. They’re actual human beings, or so I’m told.

      Reply
  5. Raccoon Strait

    While understanding that the meat of this article is about intervention, it occurs to me that [Ed. Note: Balance of comment deleted. Not only has this been discussed over and over, here and elsewhere, but if it’s not the topic, then don’t do it. JUST DON’T DO IT!]

    Reply

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