What police need to know about the statutory duty to intervene

In the wake of the killing of George Floyd by Minneapolis police officers, many states added duty to intervene statutes. Despite the newly enacted laws, the duty to intervene is not new nor a radical departure from prior officer responsibility. It is a legally ingrained responsibility.

The elements of a crime

Criminal law students as well as police academy recruits are taught the elements of a crime. Simply stated, there must be a culpable mind (mens rea) coupled with an offensive act (actus reus) leading to a resulting harm. Criminal acts often involve some affirmative step on the part of a suspect, such as an intentional, unprovoked punch to the face of another causing an injury, or reckless driving in a residential area that leads to a crash and injury to a pedestrian. These are recognizable acts for which the criminal law proscribes a punishment.

Often forgotten in the discussion are omissions wherein the failure to act when there is a legal duty to act constitutes a criminal act. A police officer’s failure to act when another officer is using excessive force against an individual is one example. It is a scenario I have been using in my criminal law courses for close to 20 years to illustrate a duty when there is a status relationship.

I am not alone, nor original, in using these types of scenarios in criminal law class discussions on the elements of an omission as a criminal act. I have lost count of the number of police officers I have instructed over the years, but I trust the blunt and experiential lessons I and many law instructors across the country likewise provide are remembered. It should be no surprise then to an officer that there is a legal duty to intervene.

The legal requirement has been around long before politicians passed laws making it a statutory duty, yet it has sadly taken legislation for the legal lessons and ramifications of non-intervention to be addressed.

Two failure to intervene cases in Colorado

Two Colorado prosecutions over the past year of police officers for failing to intervene illustrate what makes a prosecutable case.

Let’s first begin with the state statute found at Colo. Rev. Stat. §18-8-802. The law requires officers witnessing fellow officers’ actions that are excessive in the degree of force permitted by Colorado law (§18-1-707) to report the use of force to the offending officer’s supervisor. An officer is also required to intervene to prevent or stop the unlawful excessive use of force by a fellow officer. Failure to report is punishable as a class 2 misdemeanor and failure to intervene is punishable as a class 1 misdemeanor.

Now to the cases:

1. The Francine Martinez case: Former Aurora, Colorado police officer Francine Martinez was convicted this past April for failure to intervene in the excessive use of force by her then partner former officer John Haubert.

Bodycam video showing Haubert’s interaction with the suspect is, aside from being unprofessional and outside of any legitimate police training in use of force, disgusting to watch. While watching the video one can see that Martinez is with another suspect. In her testimony, she described the attack by Haubert as “without warning and very rapid.” Even if one was to assume the logic of Martinez’s failure to intervene and give her the legal benefit of the doubt, she failed to report the unconscionable actions of Haubert, which clearly were not only outside of legitimate use of force parameters but were tactically unsound. Her failure to report alone was enough to convict.

2. The Daria Jalali case: In another case out of Colorado, former Loveland police officer Daria Jalali pled guilty in June 2022 to failing to report excessive use of force. The prosecutor, as part of the plea agreement, dismissed other misdemeanor charges of failing to report an excessive use of force and official misconduct. The arresting officer, Austin Hopp, was sentenced to five years in prison.

The underlying incident stemmed from the 2020 petit larceny arrest of a 73-year-old woman with dementia that resulted in her sustaining a broken arm, dislocated shoulder, and several bruises. Jalali was not present during Hopp’s initial takedown of the woman to the ground, but her ensuing actions did nothing to ameliorate the situation once the woman was in handcuffs and in mental and physical distress. Further, evidence from the police booking area video and audio as the two officers recounted the incident indicated knowledge that the arrested woman was injured, yet no medical treatment was provided.

Both Colorado failure to intervene cases, the plea of Jalali and the jury verdict against Martinez, resulted in misdemeanor convictions and respective sentences of 45 days in jail followed by a three-year probation and six-month house arrest, with neither defendant eligible to obtain police employment again. However, the sentences of the three officers assisting Derek Chauvin in the George Floyd arrest should provide a stark warning of the legal implications for a failure to intervene.

Federal civil rights violations and state criminal law prosecutions were commenced and resulted in both federal and state sentences. At the core of one of the former officers’ prosecution and eventual pleas was the knowledge that what was being done to Floyd violated procedure but that the officer continued to assist in the restraint despite the risk.

There is a thin legal line between misdemeanor charges for an officer’s failure to intervene and a more serious felony charge of aiding and abetting an assault or worse.

Even though there is not a lot of case law on the issue, and some states have excluded omissions from accomplice liability legislation, there have been cases resulting in criminal accomplice liability where there was a failure to act based on a status relationship creating a duty. Silence and non-action can lead to criminal charges when an officer fails to intervene in an unlawful use of force by another officer.

NEXT: Building an agency culture that embraces a duty to intervene