Court Discusses Duty to Intervene in Alleged Excessive Force

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El v. City of Pittsburgh, 2020 WL 5541155 (3rd Cir. 2020)

Lieutenant Kacsuta saw brothers Beyshaud and Will El leaving a convenience store. Lieutenant Kacsuta thought she saw Beyshaud holding a foil packet. She suspected it contained synthetic marijuana because she had heard the illegal compound was being sold at the store. Lieutenant Kacsuta drove up to the brothers and asked to speak with them. They declined and walked away. She followed them down the street and called for backup officers who were nearby.

Lieutenant Kacsuta got out of her patrol car and ordered the brothers to sit on the pavement; they complied. Will emptied his pockets onto the sidewalk and told his brother to do likewise so they could prove they didn’t have any contraband and weren’t doing anything wrong. Seeing no synthetic marijuana, Lieutenant Kacsuta shifted her suspicions to a possible underage tobacco possession violation.

Officers Warnock and Welling arrived. Eventually, three more officers arrived, bringing the total to six officers. A dash camera from one of the patrol cars recorded the events. Lieutenant Kacsuta picked up Will’s identification from the pavement, examined it, then tossed it to the ground. When Beyshaud reached for Will’s identification, Lieutenant Kacsuta stepped on it.

The Els complained they were being harassed. Officer Welling said, “Do you want to know what it feels like to be harassed?” Will stood up and pointed his finger as he spoke. He took one or two steps toward Lieutenant Kacsuta and Officer Warnock. Officer Welling grabbed Will by his neck and wrist and slammed him against the wall, then onto the pavement. Beyshaud stood in defense of his brother and attempted to punch Officer Welling. Officer Warnock deployed his TASER® on Beyshaud, causing Beyshaud to fall to the ground.

The brothers did not resist as the six officers handcuffed them. Beyshaud was taken to the hospital and then to jail. Will was transported directly to jail. After he was released, he went to the emergency department and was diagnosed with a minor hip injury. Beyshaud was convicted of harassment and Will was convicted of disorderly conduct.

The Els sued, alleging excessive force, state law assault and battery claims, and failure to intervene in excessive force. The trial court denied summary judgment to Officer Welling and Lieutenant Kacsuta, but granted summary judgment for Officer Warnock. The court of appeals affirmed the denial of summary judgment for Officer Welling’s alleged use of excessive force but reversed the denial of summary judgment for Lieutenant Kacsuta’s failure to intervene in the other officers’ uses of force.

An officer has a clearly established duty to “take reasonable steps to protect a victim from another officer’s use of excessive force.”

The trial court ruled that a jury “could conclude that Officer Warnock’s tasing Beyshaud El, without first using lesser force, was unreasonable, excessive force.” However, the court also ruled that at the time of this incident “it was not clearly established … that a police officer could not use a taser to subdue an individual who, while being stopped for investigatory purposes, was observed attempting to punch another police officer.”

The appellate court held Officer Welling was not entitled to summary judgment because a jury could reasonably conclude there was a violation of Will’s right to be free from unreasonable use of force when Officer Welling took him by the wrist and neck and slammed him against the wall and on to the ground. The court applied the Graham v. Connor factors: The severity of the crime was very minor (possible underage possession of tobacco), there was no indication the brothers posed any immediate threat to the public or to the officers, and the brothers were not resisting arrest or attempting to escape. The court also considered factors articulated in a Seventh Circuit precedent, Sharrar v. Felsing (128 F.3d 810 (3rd Cir. 1997)). Citing the Sharrar factors, the court observed the brothers were not violent or dangerous, they were unarmed, the officers outnumbered them six to two, the “situation unfolded over a few minutes, not a few tense and dangerous seconds,” and Will El was physically injured by the use of force, albeit with a minor injury.

An officer has a clearly established duty to “take reasonable steps to protect a victim from another officer’s use of excessive force.” The duty to intervene must be considered in light of whether there is a realistic and reasonable opportunity to intervene. Generally, the duration of the incident is the guiding factor in assessing whether a reasonable opportunity to intervene existed. In extended confrontations, or events that unfold in stages, it is more likely that a court will rule the duty to intervene was evident: “By contrast, where an incident is momentary, its ‘brevity’ may ‘defeat a … failure-to-intervene claim” (Ricks v. Shover, 891 F.3d 468 (3rd Cir. 2018)).

The appellate court held “that the video blatantly contradicts the District Court’s finding regarding the failure to intervene claim.” “As Officer Welling took Will down, Lieutenant Kacsuta took a few steps toward them and then a few steps back, all within a matter of roughly five seconds and while Officer Warnock, standing next to her, deployed his taser on Beyshaud. Given the speed with which the incident ended, no reasonable jury could conclude that Lieutenant Kacsuta had a realistic and reasonable opportunity to intervene.”

An agency must have policy and training on the duty to intervene. Lexipol policy requires any officer who witnesses an unreasonable use of force, regardless of whether an intercession occurred, “to promptly report these observations to a supervisor.” Lexipol policy also advises that other officers may have additional information and different perspectives of the ongoing situation, and to consider these possibilities when deciding whether to intervene.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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