Failure to Intervene

What It Is

An officer who witnesses a fellow officer violating someone’s constitutional rights has a duty to intervene if they have a realistic opportunity to do so. Failure to intervene is an independent basis for § 1983 liability.

Mental State Standard: Knew and Failed to Act

Failure to intervene borrows the mental state standard from the underlying violation, but adds a knowledge requirement. The officer must have known that a constitutional violation was occurring (or was so obvious that any reasonable officer would have recognized it) and must have had a realistic opportunity to stop it.

This isn’t deliberate indifference exactly — it’s closer to actual knowledge combined with a failure to act. You don’t need to show the bystander officer intended for the violation to happen, but you do need to show they were aware of it and chose not to intervene.

See State of Mind Requirements for how this compares to other § 1983 claims.

The Elements

1. Another officer was violating your constitutional rights
2. The defendant officer was present and knew the violation was occurring
3. The defendant officer had a realistic opportunity to intervene
4. The defendant officer failed to act

Why It Matters

Failure to intervene claims are critical because:

• Multiple officers are usually present — During arrests, use-of-force incidents, and searches, there are often several officers on scene. The ones who stand by and watch are also liable.
• It counters the “I didn’t do it” defense — An officer who says “I didn’t use force” can still be liable for not stopping the officer who did.
• It exposes the culture — When multiple officers watch a violation happen and nobody intervenes, that’s evidence of a departmental custom or practice.

The “Realistic Opportunity” Question

You must show the officer had time and ability to intervene. If the use of force lasted three seconds and the other officer was 50 feet away, there may not have been a realistic opportunity. But if the force continued for minutes while another officer stood nearby doing nothing, the claim is strong.

Pleading It

Name each officer who was present. Allege what they saw, how long the violation lasted, their proximity, and what they could have done. The more specific, the better.

Key Cases

• Yang v. Hardin, 37 F.3d 282 (7th Cir. 1994) — Officers have affirmative duty to intervene to prevent constitutional violations
• Randall v. Prince George’s County, 302 F.3d 188 (4th Cir. 2002) — Failure to intervene during excessive force
• Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013) — Officer liability for failure to intervene in Fifth Circuit