Law enforcement officers have many legal duties imposed upon them by law. Officers can be held liable for failure to intervene and protect individuals from violations of constitutional rights, including those carried out by other officers. Usually, failure-to-intervene lawsuits are pursued in federal court under 42 U.S.C. § 1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights.
The Unites States Court of Appeal for the Seventh Circuit in Yang v. Hardin described the standard for being liable for failure to intervene as:
An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.
Recently, states have also created state statutory duties to intercede or intervene in situations of excessive force or when other violations of constitutional rights have been observed by an officer. Colorado, Connecticut, Minnesota, Nevada, Oregon and Vermont, created affirmative statutory duties to intervene. All but the Nevada law include disciplinary procedures or state criminal prosecution for failing to carry out the duty as described by law.
The New Mexico law does not create an explicit duty to intervene, but it does require decertification for officers convicted of a crime involving failure to intervene in the use of unlawful force. The revocation of certification is permanent unless the officer is exonerated or pardoned.
California and New York have laws that address adoption of duty to intervene policies, but do not create affirmative duties in state law. A few of the laws also provide protection against retaliation for officers who intervene.
Of the nine states mentioned above that have laws addressing duty to intervene, seven also require officers to report the conduct they witnessed. Additionally, New Hampshire does not address duty to intervene, but has created a statutory duty to report.
Colorado, the District of Columbia, Nevada and New York each created legal duties for officers to provide medical care to people in certain situations. The New York law is the broadest requiring medical attention to the medical and mental health needs of people under arrest or otherwise in an officer’s custody. The Colorado, District of Columbia and Nevada laws require provision of care after use of force or use of a neck restraint.
In the same way that states have started to codify duties normally litigated under § 1983, they have also started to create state causes of action that are parallel to § 1983 litigation. Both Colorado and Connecticut have created state causes of action to address situations where officers are accused of depriving an individual of their rights. The exact language in each state is different, but both laws limit an officer and their agency’s ability to raise immunity defenses.
These causes of action are separate from state tort claims acts and other state civil rights laws. Additionally, a number of states have laws that provide legal immunity for officers beyond generalized immunity that applies to government actors and employees under state governmental immunity acts. Those laws in addition to other novel liability and immunity provisions that are specific to law enforcement officers can be compared using this section of the database.
Using the Database
The database can be navigated by using state and subtopic filters. Text searching is available for statutory summaries or statutory language contained in the database. The map is also interactive and allows you to more quickly select multiple states to review―just hold down the control key to select more than one state. Use the reset button at the top left to clear all filters and start a new search.
Note that this database only contains statutory provisions that address each policy area. Case law, regulations or agency policy may further impact the current state of the law in each state. This database also does not address policies adopted by local jurisdictions or law enforcement agencies.