A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in their presence by other officers.
After a handcuffed plaintiff was struck by police officers, a jury found several officers liable for excessive force and denial of medical care. One officer, who witnessed the beating and the subsequent dragging of the plaintiff, was also found liable for failing to intercede. The court considers whether a law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers. The court holds that while the officer could not prevent the initial rapid blows, he may be liable for failing to make a reasonable attempt to stop the subsequent dragging. The court affirms the judgment against the primary officers but reverses the verdict against the observing officer.
At page 11 Admissibility of prior similar act evidence and duty to intervene102 citing cases“a law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.”
- Gonzalez v. Waterbury Police Dept., 199 F. Supp. 3d 616 (D. Conn. 2016).published (Having seen the victim beaten, he was alerted to the need to protect [the victim] from further abuse.)
- Montgomery v. Orange Cnty., No. 25-180 (2d Cir. Oct. 15, 2025).unpublished(The three blows were struck in such rapid succession that [law enforcement officer] had no realistic opportunity to attempt to prevent them.)
- Wolak v. Town of Old Saybrook, No. 3:23-cv-00734 (D. Conn. Aug. 28, 2025).(The three blows were struck in such rapid succession that Conners had no realistic opportunity to attempt to prevent them. This was not an episode of sufficient duration to support a conclusion that an officer who stoo…)
- Martinez v. City Of New York, No. 1:23-cv-06303 (S.D.N.Y. June 25, 2025).(A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in [her] presence by other officers.)
- Jackson v. Cnty. of Ulster, No. 1:24-cv-00203 (N.D.N.Y. Mar. 25, 2025). (A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers)
- Birch v. Town of New Milford, No. 23-1153 (2d Cir. June 21, 2024).unpublished(A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Chepilko v. Police Officer Scott Henry, 722 F. Supp. 3d 329 (S.D.N.Y. 2024).published(A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Austin J. Harig v. City of Buffalo, No. 22-30, 2023 WL 3579367 (2d Cir. May 22, 2023).unpublished(A law enforcement officer has an affirmative duty to intercede on the behalf of a 17 citizen whose constitutional rights are being violated in his presence by other officers.)
- Hopkins v. City of Schenectady, No. 1:20-cv-00618 (N.D.N.Y. Mar. 2, 2023).(A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Anderson v. Keegan, No. 1:19-cv-01195 (M.D.N.C. Aug. 16, 2022).(Even when the evidence is viewed in the light most favorable to the plaintiff, there is insufficient evidence to permit a jury reasonably to conclude that [the officer’s] failure to intercede was a proximate cause of t…)
Show 92 more citing cases
- Richard Simone, Jr. v. Andrew Monaco, 2022 DNH 005 (D.N.H. 2022).published (A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Simone, Jr. v. Monaco, No. 1:20-cv-00336, 2022 WL 88196 (D.N.H. Jan. 6, 2022). (A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Stratakos v. Nassau Cnty., 574 F. Supp. 3d 154 (E.D.N.Y. 2021).published (A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Cartelli v. United States, No. 2:15-cv-06890 (E.D.N.Y. Dec. 17, 2019). (A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Stratakos v. Nassau Cnty., No. 2:15-cv-07244 (E.D.N.Y. Dec. 9, 2019).(A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Hicks v. City of Syracuse, No. 5:17-cv-00475 (N.D.N.Y. Sept. 27, 2019). (A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Howard v. Wilkinson, 380 F. Supp. 3d 1263 (M.D. Fla. 2019).published(The three blows were struck in such rapid succession that [the officer defendant] had no realistic opportunity to attempt to prevent them.)
- Heyliger v. Krygier, 335 F. Supp. 3d 482 (W.D.N.Y. 2018).published(A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Hernandez v. Colon, No. 3:16-cv-30089, 2018 WL 2422008 (D. Mass. May 25, 2018).(A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Sandberg v. Englewood, No. 17-1147 (10th Cir. Mar. 7, 2018).unpublished(law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Murray-Ruhl v. Shiawassee, 246 F. App'x 338 (6th Cir. 2007).unpublished(This was not an episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator)
- McCoy v. Goord, 255 F. Supp. 2d 233 (S.D.N.Y. 2003).published(A law enforcement officer has an affir *262 mative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Beall v. Leavitt, No. CV-98-372-M (D.N.H. Aug. 31, 1999).published (A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.)
- Allah, No. 9:23-cv-00785 (N.D.N.Y. Sept. 28, 2026). The relevant inquiry “is whether officers, directly participated in the attack and who failed it would be clear to a reasonable officer that his conduct to intervene,” Jeffreys v. Rossi, 275 F.Supp.2d 463, 474 was unlawful in the situation…
- Atkinson, No. 7:24-cv-06724 (S.D.N.Y. June 29, 2026). An officer who fails to intervene may be held liable for the preventable harm caused by another officer where the officer observes or has reason to know that: (1) excessive force is being used, see O’Neill v. Krzeminski, 839 F.2d 9 , 11-12…
- Davis, No. 9:24-cv-00218 (N.D.N.Y. Mar. 12, 2026). In the excessive force context, the official must have “observe[d] the use of force and ha[d] sufficient time to act to prevent it.” See Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016) (citing O’Neill, 839 F.2d at 11-12).
- Reinhardt v. City of Buffalo, No. 1:21-cv-00206 (W.D.N.Y. Aug. 21, 2025).Failure to Intervene (Count 4) The City Defendants cite O'Neill v. Krzeminski, 839 F.2d 9 , 11 (2d Cir. 1988), for the proposition that “[p]olice officers have a duty to intervene and prevent constitutional violations committed by ‘other o…
- Bell v. Saunders, No. 9:20-cv-00256 (N.D.N.Y. Dec. 11, 2024). “Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude…
- Connelly v. City of St. Albans, No. 2:21-cv-00291 (D. Vt. Apr. 26, 2024). “Liability attaches on the theory that the officer, by failing to intervene, becomes a ‘tacit collaborator’ in the illegality.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016) (quoting O’Neill, 839 F.2d at 11).
- Cornell v. Vill. of Clayton, 691 F. Supp. 3d 608 (N.D.N.Y. 2023).published“Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude…
- Ferguson v. Buck, No. 3:22-cv-00516 (N.D.N.Y. July 26, 2023). Once DuPay did not try stopping Buck and Dorn after the initial slam, there arose a “sufficient duration to support a conclusion that [when Dupay] stood by without trying to assist [DeGroat, he] became a tacit collaborator.” O’Neill, 839 F…
- DeGroat v. Buck, No. 3:22-cv-00507 (N.D.N.Y. July 26, 2023). Once DuPay did not try stopping Buck and Dorn after the initial slam, there arose a “sufficient duration to support a conclusion that [when Dupay] stood by without trying to assist [DeGroat, he] became a tacit collaborator.” O’Neill, 839 F…
- Dinkins v. Gustave, No. 1:19-cv-02336 (S.D.N.Y. Mar. 25, 2022). The length of the constitutional violation must be of “sufficient duration to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator.” O’Neill, 839 F.2d at 11-12.
- Newkirk v. Cnty. of Suffolk, No. 2:17-cv-02960 (E.D.N.Y. Mar. 18, 2022). Conn. 2003) (denying summary judgment with regard to a failure to intervene claim in “three episodes” of force where it was disputed whether other officers saw and were alerted to the second use of force and could have intervened to preven…
- Sanchez v. Chapman, No. 3:19-cv-01314 (D. Conn. Mar. 4, 2022). For example, Plaintiff does not point to any facts indicating that the scuffle was “of sufficient duration to support a conclusion that an officer who stood by without trying to assist [him] became a tacit collaborator.” See O’Neill, 839 F…
- Ridge v. Havas, No. 7:18-cv-08958 (S.D.N.Y. Feb. 7, 2022). “An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used . . . ; (2) that a citizen has been…
- Pajazetovic v. City of Utica, No. 6:18-cv-01496, 2021 WL 4440473 (N.D.N.Y. Sept. 27, 2021). Feb. 4, 2011)(“Where the alleged force consists of a single push or a ‘rapid succession’ of blows, courts have found that the officer did not have a realistic opportunity to intervene.”) (citing O'Neill, 839 F.2d at 11-12)); see also Jacks…
- Durr v. Slator, 558 F. Supp. 3d 1 (N.D.N.Y. 2021).published Accordingly, the Second Circuit found that there "was not an episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator." Id. at 11-12.
- Boudreau v. Smith, No. 3:17-cv-00589 (D. Conn. Mar. 31, 2020). “Whether an officer had a ‘realistic opportunity to intervene . . . is a question of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.’” Id. (quoting O’Neill, 839 F.2d at 11-12…
- Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001).published
- Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43 (1st Cir. 2005).published
- Marc J. Anderson v. Dennis Branen, 17 F.3d 552 (2d Cir. 1994).published
- United States v. Stacey C. Koon, Cross-Appellee. United States of Am. v. Laurence M. Powell, Cross-Appellee, 34 F.3d 1416 (9th Cir. 1994).published
- Brown v. City of Margate, 842 F. Supp. 515 (S.D. Fla. 1993).published
- Noel v. Town of Plymouth, Mass., 895 F. Supp. 346 (D. Mass. 1995).published
- Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501 (S.D.N.Y. 2008).published
- Jones v. Huff, 789 F. Supp. 526 (N.D.N.Y. 1992).published
- Jenness v. Nickerson, 637 A.2d 1152 (Me. 1994).published
- Ruble v. King, 911 F. Supp. 1544 (N.D. Ga. 1995).published
- Commonwealth v. Adams, 624 N.E.2d 102 (Mass. 1993).published
- Mata ex rel. J.A.M v. City of Farmington, 791 F. Supp. 2d 1118 (D.N.M. 2011).published
- McLaurin v. New Rochelle Police Officers, 373 F. Supp. 2d 385 (S.D.N.Y. 2005).published
- Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318 (S.D.N.Y. 2006).published
- Maye v. Vargas, 638 F. Supp. 2d 256 (D. Conn. 2009).published
- Henry-Lee v. City of New York, 746 F. Supp. 2d 546 (S.D.N.Y. 2010).published
- Allen v. City of New York, 480 F. Supp. 2d 689 (S.D.N.Y. 2007).published
- Dawkins v. Williams, 413 F. Supp. 2d 161 (N.D.N.Y. 2006).published
- MacK v. Town of Wallkill, 253 F. Supp. 2d 552 (S.D.N.Y. 2003).published
- Jones v. City of Hartford, 285 F. Supp. 2d 174 (D. Conn. 2003).published
- Wieder v. New York City Police Dep't, 569 F. App'x 28 (2d Cir. 2014).unpublished
- Figueroa v. Mazza, 825 F.3d 89 (2d Cir. 2016).published
- Demosthene v. City of New York, 831 F. App'x 530 (2d Cir. 2020).unpublished
- Figueroa v. Mazza, 59 F. Supp. 3d 481 (E.D.N.Y. 2014).published
- Jones v. Westchester Cnty., 182 F. Supp. 3d 134 (S.D.N.Y. 2016).published
- Holland v. City of New York, 197 F. Supp. 3d 529 (S.D.N.Y. 2016).published
- Raffaele v. City of New York, 242 F. Supp. 3d 152 (E.D.N.Y. 2017).published
- Massaro v. Jones, 323 F. App'x 68 (2d Cir. 2009).unpublished
- Montoya v. Shelden, 898 F. Supp. 2d 1279 (D.N.M. 2012).published
- Gross v. Lunduski, 304 F.R.D. 136 (W.D.N.Y. 2014).published
- Martin v. United States, No. 1:21-cv-02107 (D. Colo. Mar. 31, 2023).
- Woodhouse v. Pellicone, No. 3:16-cv-00726 (D. Conn. Sept. 28, 2019).
- Kalamaras v. Cnty. Of Nassau, No. 2:17-cv-01068, 2019 WL 4452281 (E.D.N.Y. Sept. 16, 2019).
- Liverpool v. Cleveland, No. 1:17-cv-01995, 2019 WL 4752072 (E.D.N.Y. Sept. 30, 2019).
- Walker v. Raja, No. 1:17-cv-05202, 2020 WL 606788 (E.D.N.Y. Feb. 7, 2020).
- Martinez v. City of New York, 564 F. Supp. 3d 88 (E.D.N.Y. 2021).published
- West v. Turner, No. 1:19-cv-00608 (W.D.N.Y. Nov. 14, 2019).
- Connelly v. City of St. Albans, No. 2:20-cv-00064 (D. Vt. Jan. 13, 2022).
- Andrews, Jr. v. Town of West Seneca, No. 1:21-cv-00746 (W.D.N.Y. Mar. 31, 2025).
- Delacruz, No. 9:24-cv-00664 (N.D.N.Y. July 23, 2026).
- Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008).published
- Jean-Laurent v. Wilkerson, 461 F. App'x 18 (2d Cir. 2012).unpublished
- Ricciuti v. Transit Auth., 124 F.3d 123 (2d Cir. 1997).published
- Lupinacci v. Pizighelli, 588 F. Supp. 2d 242 (D. Conn. 2008).published
- Reid v. City of New York, 736 F. Supp. 21 (E.D.N.Y. 1990).published
- Hynes v. LaBoy, 887 F. Supp. 618 (S.D.N.Y. 1995).published
- Mejia v. City of New York, 119 F. Supp. 2d 232 (E.D.N.Y. 2000).published
- Ortiz v. Santora, 223 F. Supp. 2d 387 (D. Conn. 2002).published
- KREGLER v. City of New York, 770 F. Supp. 2d 602 (S.D.N.Y. 2011).published
- Betancourt v. Slavin, 676 F. Supp. 2d 71 (D. Conn. 2009).published
- Weyel v. Catania, 1997 Conn. Super. Ct. 7650 (Conn. Super. Ct. 1997).unpublished
- Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997).published
- Deskovic v. City of Peekskill, 894 F. Supp. 2d 443 (S.D.N.Y. 2012).published
- Waddlington v. City of New York, 971 F. Supp. 2d 286 (E.D.N.Y. 2013).published
- El-Massri v. New Haven Corr. Ctr., No. 3:18-cv-01249 (D. Conn. July 31, 2019).
- Corona v. City of Clovis, No. 2:17-cv-00805 (D.N.M. May 30, 2020).
- Spencer v. Sullivan Cnty. Sheriff Dep't, No. 7:18-cv-00365, 2019 WL 4514011 (S.D.N.Y. Sept. 19, 2019).
- Ramos v. City of New York, No. 1:18-cv-04938 (S.D.N.Y. July 16, 2020).
- Johnson v. McMorrow, No. 7:19-cv-06480, 2023 WL 1797063 (S.D.N.Y. Feb. 7, 2023).
- Giles v. City of Mount Vernon, No. 7:20-cv-05119, 2024 WL 126883 (S.D.N.Y. Jan. 11, 2024).
- Green v. Frederickson, 460 F. Supp. 3d 1079 (D. Or. 2020).published
- Cabrera v. City of Hobbs, No. 2:19-cv-00720 (D.N.M. Feb. 19, 2021).
- Cook v. State of Connecticut, No. 3:24-cv-02042 (D. Conn. Apr. 21, 2025).
At page 12 Determining officer liability for failure to intervene12 citing cases“normally, a jury need not allocate compensatory damages . . . .”
- Gonzalez v. Waterbury Police Dept., 199 F. Supp. 3d 616 (D. Conn. 2016).published O’Neill, 839 F.2d at 11 (“Having seen the victim beaten, he was alerted to the need to protect [the victim] from further abuse.”).
- Jensen v. West Jordan City, 968 F.3d 1187 (10th Cir. 2020).published“normally, a jury need not allocate compensatory damages . . . .”
- Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2003).published“normally, when two claims have been submitted to a jury and one of them should not have been submitted, a general verdict in favor of the claimant cannot stand, since it is not possible, in the absence of special interr…”
- Connelly v. City of St. Albans, No. 2:21-cv-00291 (D. Vt. Apr. 26, 2024). “Liability attaches on the theory that the officer, by failing to intervene, becomes a ‘tacit collaborator’ in the illegality.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016) (quoting O’Neill, 839 F.2d at 11).
- Ferguson v. Buck, No. 3:22-cv-00516 (N.D.N.Y. July 26, 2023). Once DuPay did not try stopping Buck and Dorn after the initial slam, there arose a “sufficient duration to support a conclusion that [when Dupay] stood by without trying to assist [DeGroat, he] became a tacit collaborator.” O’Neill, 839 F…
- DeGroat v. Buck, No. 3:22-cv-00507 (N.D.N.Y. July 26, 2023). Once DuPay did not try stopping Buck and Dorn after the initial slam, there arose a “sufficient duration to support a conclusion that [when Dupay] stood by without trying to assist [DeGroat, he] became a tacit collaborator.” O’Neill, 839 F…
- Newkirk v. Cnty. of Suffolk, No. 2:17-cv-02960 (E.D.N.Y. Mar. 18, 2022). Conn. 2003) (denying summary judgment with regard to a failure to intervene claim in “three episodes” of force where it was disputed whether other officers saw and were alerted to the second use of force and could have intervened to preven…
- Smith v. Town of Lloyd, No. 1:17-cv-00077 (N.D.N.Y. Jan. 27, 2020).Id. (quoting O’Neill, 839 F.2d at 12).
- Brown v. City of Margate, 842 F. Supp. 515 (S.D. Fla. 1993).published
- Jones v. Huff, 789 F. Supp. 526 (N.D.N.Y. 1992).published
Show 2 more citing cases
- Jones v. City of Hartford, 285 F. Supp. 2d 174 (D. Conn. 2003).published
- Connelly v. City of St. Albans, No. 2:20-cv-00064 (D. Vt. Jan. 13, 2022).
At page 13 Affirming compensatory and punitive damage awards in civil rights cases13 citing casesupholding a compensatory award of $80,000 in civil rights action for use of excessive force based on lost wages and certain injuries even though there was no permanent dam *246 age
- Allah, No. 9:23-cv-00785 (N.D.N.Y. Sept. 28, 2026). The relevant inquiry “is whether officers, directly participated in the attack and who failed it would be clear to a reasonable officer that his conduct to intervene,” Jeffreys v. Rossi, 275 F.Supp.2d 463, 474 was unlawful in the situation…
- Arnold R. Vasbinder v. Basil Y. Scott, 976 F.2d 118 (2d Cir. 1992).published
- Ismail v. Cohen, 712 F. Supp. 416 (S.D.N.Y. 1989).published
- Jones v. Huff, 789 F. Supp. 526 (N.D.N.Y. 1992).published
- Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990).published
- Payne v. Jones, 696 F.3d 189 (2d Cir. 2012).published
- Payne v. Jones, 711 F.3d 85 (2d Cir. 2013).published
- Tatum v. City of New York, 668 F. Supp. 2d 584 (S.D.N.Y. 2009).published
- Sabir v. Jowett, 214 F. Supp. 2d 226 (D. Conn. 2002).published
- Beckford v. Irvin, 49 F. Supp. 2d 170 (W.D.N.Y. 1999).published
Show 2 more citing cases
- Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997).published
- Rivenburgh v. CSX Transp., 280 F. App'x 61 (2d Cir. 2008).unpublished
At page 10 Upholding jury verdicts for punitive damages against officers12 citing cases
- Anderson v. Aparicio, 25 F. Supp. 3d 303 (E.D.N.Y. 2014).published The Supreme Court has noted that “[b]ecause evidence of a tortfea-sor’s wealth is traditionally admissible as a measure of the amount of punitive dam ages that should be awarded, the unlimited taxing power of a municipality may have a prej…
- Jackson v. Cnty. of Ulster, No. 1:24-cv-00203 (N.D.N.Y. Mar. 25, 2025). See O'Neill, 839 F.2d 9 , 11 (2d Cir. 1988) ("A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers").
- Wilfredo Martinez v. Rafael Colon, 54 F.3d 980 (1st Cir. 1995).published
- Arnold R. Vasbinder v. Basil Y. Scott, 976 F.2d 118 (2d Cir. 1992).published
- DiSorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003).published
- Ismail v. Cohen, 712 F. Supp. 416 (S.D.N.Y. 1989).published
- Hightower v. Nassau Cnty. Sheriff's Dep't, 325 F. Supp. 2d 199 (E.D.N.Y. 2004).published
- Joyner v. Taft, 920 F. Supp. 273 (D. Conn. 1995).published
- Shuford v. New York City Dep't Of Corr., No. 1:17-cv-06349 (E.D.N.Y. Mar. 30, 2023).
At page 14 “negligence is not a basis of liability for constitutional torts.”2 citing cases
- Turkmen v. Hasty, No. 13-981 (L) (2d Cir. June 17, 2015).published“negligence is not a basis of liability for constitutional torts.”
- Keith Edwards v. Officer J. Grubbs, 169 F.4th 1261 (11th Cir. 2026).publishedThe degree of reprehensibility and the ratio make Dieter distinguishable in material ways. 6 Adjusting the two awards in comparable excessive force cases prior to this decade for inflation still leaves these awards well below $20 million:…
At page 25 cited at this page1 citing case
- Colson v. Mingo, No. 1:18-cv-02765 (S.D.N.Y. Jan. 16, 2025).One of the sprays was directly upon him for “what felt like 30 seconds.” Id. at 25:14-17; SMF ¶ 60.
At page 30 cited at this page1 citing case
- Crispin v. Fortin, No. 3:20-cv-01796 (D. Conn. Mar. 1, 2021). Under the first prong, a detainee must allege that “the conditions, either alone or in combination, pose[d] an unreasonable risk of serious damage to his health . . . which includes the risk of serious damage to physical and mental soundne…
At page 108 cited at this page1 citing case
- Alcantara v. Donaghue, No. 1:15-cv-05584 (E.D.N.Y. May 6, 2022).Id. at 108.
Other citing cases
- Kakowski v. SGT Gonzales, No. 3:24-cv-01314 (S.D. Cal. Apr. 1, 2025).
- Lentz v. O'Malley, No. 2:23-cv-00200 (E.D. Wash. Nov. 25, 2024).
v.
Anthony KRZEMINSKI, Richard Fiorillo and James T. Conners, individually and in their official capacities as officers in the Police Department of the City of New Haven, Connecticut
Lead Opinion
Defendant police officers Anthony Krze-minski, Richard Fiorillo, and James T. Con-ners appeal from a judgment of the District Court for the District of Connecticut (Warren W. Eginton, Judge) entered after a jury verdict finding all of them liable under 42 U.S.C. § 1983 (1982) for using excessive force against the plaintiff and finding Sergeant Fiorillo liable for denying him medical attention in violation of his constitutional rights. The jury awarded plaintiff $80,-000 in compensatory damages on the excessive force count and $100 for the denial of medical care. The jury also assessed punitive damages of $125,000 against Fiorillo, $60,000 against Krzeminski, and $35,000 against Conners. The defendants, jointly represented now as at trial by an assistant corporation counsel of the City of New Haven, contend on appeal that the trial court erred by: (1) permitting plaintiff to present evidence of a prior section 1983 judgment entered against Fiorillo for use of excessive force; (2) refusing to withdraw from the jury, and to set aside the verdict on, the claim that Conners participated in the use of excessive force; (3) refusing to instruct the jury that the City of New Haven was not a defendant in the action, and (4) denying defendants’ motion to set aside the damage awards as excessive. We affirm the judgment against Fiorillo and Krzeminski, but reverse and order a new trial on the excessive force claim against Conners.
Background
On the weekend of July 4,1981, plaintiff-appellee Neil J. O’Neill, then a Captain in the United States Army, was home on leave visiting his family in New Haven, Connecticut. O’Neill went with a friend to a New Haven nightclub called Toad’s Place on the night of the fourth. In the course of the evening, O’Neill was ejected from the club for annoying a waitress. He was then arrested by New Haven police officers for breach of peace, handcuffed, and transported in a police van to the station.
In the station’s detention area, O’Neill identified himself as an Army Captain. His attitude apparently attracted the disapproving attention of then Sergeant Fiorillo, the detention room supervisor, and Officer Krzeminski, who was on duty at the time. Plaintiff testified that these police officers shoved him and swore at him, prompting him to ask Krzeminski, “What are you, the gestapo? Is this Nazi Germany?” At this point O’Neill, still in handcuffs, was struck three times in rapid succession on his face and head. It is undisputed that at least one blow was struck by Fiorillo, who testified that he thought he had broken O’Neill’s nose, and at least one more was struck by Krzeminski using a blackjack. Officer Krzeminski then dragged O’Neill by the throat across the detention area, castigating him for “bleeding all over my floor.” Officer Conners observed these events without interceding on O’Neill’s behalf.
Disoriented, O’Neill was taken to a holding cell. Soon thereafter, an unidentified man in civilian clothing entered the cell, examined O’Neill, and commented to an unidentified observer that O’Neill needed medical attention. Sergeant Fiorillo subsequently entered the cell and screamed repeatedly at the plaintiff, “Are you refusing medical treatment?” Eventually, plaintiff was driven in a police van to Yale-New Haven Hospital where he was treated for a fractured nose, lacerations to his forehead and eyebrow, and tenderness in his throat.
Discussion
1. The Prior Excessive Force Judgment. Similar act evidence was offered and received under Fed.R.Evid. 404(b) against Fiorillo to show that he had the intent to use excessive force when he struck the plaintiff. The plaintiff initially sought to introduce evidence of two prior section 1983 judgments against Fiorillo,[*11] one for an unlawful arrest and one for use of excessive force. The trial judge refused to permit any evidence with respect to the unlawful arrest judgment on grounds of relevance. Upon determining that the second judgment concerned use of excessive force during an incident less than a month before the O’Neill incident, the trial judge allowed plaintiff to establish both the existence of the second judgment and the date of the underlying incident.
This panel is divided in its views on the admissibility of the prior similar act evidence; the writer believes that the evidence was admissible,[1] Judge Meskill believes admitting the evidence was error, but harmless in view of the strength of the other evidence against Fiorillo, and Judge Van Graafeiland believes it is unnecessary to decide whether error occurred, since he concludes that if there was error, it was harmless. Though split three ways in its approach, the panel is thus unanimous in concluding that the admission of the similar act evidence is not a sufficient ground for disturbing the judgment against Fioril-lo.
2. Conners’Liability. We turn next to Officer Conners’ contention that the evidence does not support the imposition of liability against him. A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers. See Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986) (excessive force); Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir.1983) (excessive force); Gagnon v. Ball, 696 F.2d 17, 21 (2d Cir.1982) (false arrest); Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 816, 74 L.Ed.2d 1014 (1983) (excessive force); Byrd v. Brishke, 466 F.2d 6, 10-11 (7th Cir.1972) (excessive force); Skorupski v. County of Suffolk, 652 F.Supp. 690, 694 (E.D.N.Y.1987) (excessive force).
In this case, the claim that Conners became liable for use of excessive force by failing to intercede must be assessed separately with respect to the acts of Fiorillo and Krzeminski in striking O’Neill and the act of Krzeminski in dragging O’Neill across the floor by his throat. Even when the evidence is viewed in the light most favorable to the plaintiff, there is insufficient evidence to permit a jury reasonably to conclude that Conners’ failure to intercede was a proximate cause of the beating. The three blows were struck in such rapid succession that Conners had no realistic opportunity to attempt to prevent them. This was not an episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist the[*12] victim became a tacit collaborator. With respect to the subsequent dragging of O’Neill across the floor, however, the case against Conners is adequate to create an issue of fact for the jury. Having seen the victim beaten, he was alerted to the need to protect O’Neill from further abuse. Though not a guarantor of O’Neill’s safety in the face of brutality administered by other officers, Conners can be found liable for deliberately choosing not to make a reasonable attempt to stop Krzeminski.
The insufficiency of the evidence to support one of the two theories on which Conners was alleged to be liable for use of excessive force requires consideration of the appropriate disposition of his appeal on this point. Normally, when two claims have been submitted to a jury and one of them should not have been submitted, a general verdict in favor of the claimant cannot stand, since it is not possible, in the absence of special interrogatories, to know upon which claim the jury rested its decision. See United New York and New Jersey Sandy Hook Pilots Ass’n v. Halecki, 358 U.S. 613, 619, 79 S.Ct. 517, 520, 3 L.Ed.2d 541 (1959); Morrissey v. National Maritime Union, 544 F.2d 19, 26-27 (2d Cir.1976). That principle would seem applicable to a jury’s answer to one interrogatory that comprehends two distinct bases of liability, only one of which is adequately supported by evidence.
It is less clear that Conners has adequately preserved for review a challenge to the sufficiency of the evidence to show that he is liable for failing to intercede in the beating, as distinguished from the dragging of O’Neill across the floor. In the criminal context, we have held that a defendant is obliged to alert a trial judge to a claim that one basis for conviction of an offense is not supported by sufficient evidence; in the absence of such particularized objection, the point is waived. See United States v. Cunningham, 723 F.2d 217 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984); United States v. Mowad, 641 F.2d 1067 (2d Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 86 (1981). The appellate court assumes that the jury based its verdict on those aspects of the count that were supported by sufficient evidence. That assumption is made to prevent a defendant from withholding an objection that the trial judge might have agreed with, in which event a subsequent verdict would have been unassailable. In this case the defendants moved for a directed verdict at the close of the evidence and renewed their contention in a post-trial motion for judgment notwithstanding the verdict. It does not appear, however, that any argument was advanced on behalf of Conners that distinguished between the beating and the subsequent dragging with respect to the sufficiency of the evidence.
We need not decide in this case how rigorously the waiver rule of the criminal cases should apply in the civil context. Even if we would be entitled to rule that Conners had inadequately sought to withdraw from the jury’s consideration his liability specifically for the striking of blows, we would not be compelled to do so. Upon reviewing the record, we are satisfied that the verdict against Conners rests so heavily upon his failure to intercede in the beating that we will not assume that the jury found against him on the excessive force claim solely because he failed to intercede with respect to the subsequent dragging. Cf. Collum v. Butler, 421 F.2d 1257, 1260 (7th Cir.1970) (police misconduct verdict upheld where appellate court was satisfied that the jury relied on a permissible basis of recovery, even though an impermissible basis was submitted to the jury). Moreover, we can have no confidence that even if the jury thought Conners was liable only for failing to intercede in the dragging episode, it would have determined that he was responsible for the full award of compensatory damages or the punitive damages assessed against him. Normally, a jury need not allocate compensatory damages among defendants, but such allocation may be required where the liability of a defendant is limited to acts that inflict only a portion of the damages. See Gagnon v. Ball, 696 F.2d 17, 19 n. 2 (2d Cir.1982). Under all of the circumstances, we will reverse the judgment as to Conners and[*13] order a new trial, limited solely to the claim that he became liable for the use of excessive force by failing to intercede in an effort to prevent Krzeminski from dragging O’Neill across the floor after the blows had been struck.
3. Municipal Indemnification. The defendants also challenge aspects of the trial relating to the municipal indemnification agreement between the police officers and the City of New Haven under which the City accepted responsibility for payment of compensatory and punitive damages. They contend first that the District Judge erred by ruling that he would inform the jury of the indemnification agreement in the event that the defendants sought to introduce evidence of their individual net worth to lessen the award of punitive damages, see Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir.1978). Our review of the record discloses that no such ruling was ever made or even threatened. We also reject defendants’ contention that the District Judge erred by refusing to instruct the jury that the City of New Haven was not a defendant in the lawsuit and therefore was not to be considered in determining the amount of damages. Such an instruction is not compelled by City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), which held only that a defendant municipality was immune from punitive damages under section 1983. We are particularly unwilling to extend Fact Concerts to the present setting since the City of New Haven has by its indemnification agreement voluntarily waived its immunity from payment of punitive damages.
4. Damages. Finally, the defendants challenge the damage awards. They argue that both the compensatory award of $80,000 for the excessive force claim and the punitive awards totalling $185,000 against Fiorillo and Krzeminski were excessive.
The standard for appellate review of damage awards, whether compensatory or punitive, “is whether the award is so high as to shock the judicial conscience and constitute a denial of justice.” Zarcone v. Perry, supra, 572 F.2d at 56 (citations omitted); see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2820 (1973). This narrow standard for review is particularly appropriate in the present case because the defendants’ liability itself was premised on a substantive due process “shocks the conscience” test.
The compensatory award is amply supported by the record. Though O’Neill appears to have suffered no permanent physical disability as a result of his beating, he was entitled to full compensation for his physical and emotional pain, as well as lost wages, suffered as a result of the accident. See Henry v. Gross, 803 F.2d 757, 768 (2d Cir.1986). There was evidence that the pain from his fractured nose and lacerations to his face and head continued for one to two months and required ongoing medical attention. Moreover, there was sufficient evidence of lost wages to justify the award on that basis. O’Neill testified that as a result of his injuries he was forced to return late to his Army post and consequently fell behind his class of officers. According to his testimony, O’Neill left active service to his great disappointment soon thereafter and later decided to pursue a law degree. Though it seems unlikely that the wages O’Neill has lost since leaving the Army will be permanently forgone now that he has earned his law degree, a jury was entitled to so find on the evidence before it.
Nor do we find the punitive damages excessive. A punitive award “may be an integral part of the remedy in a civil rights action.” Zarcone v. Perry, supra, 572 F.2d at 54; see also Smith v. Wade 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). In denying defendants’ motion to set aside the verdict, Judge Eginton noted that he “had heard many excessive force cases in eight years of jury trials, but none so shocked the conscience of this court as did this one.” The plaintiff, while handcuffed and unable to defend himself, was struck repeatedly about the head by two law enforcement officers. Though the punitive awards against defendant Fiorillo and Krzeminski, totalling $185,000, are[*14] substantial, we do not consider them excessive on the facts of this case. See Hall v. Ochs, 817 F.2d 920, 927 (1st Cir.1987) (punitive award of $200,000 upheld in police misconduct case involving racial discrimination but no physical beating); Zarcone v. Perry, supra, 572 F.2d at 57 (upholding $60,000 punitive award in civil rights action against single judicial officer for “outrageous conduct” not involving a physical beating). As this Court remarked in Zar-cone, “the abuse of official power here was intolerable, and when a jury has dealt with it severely, as it should, we will not draw fine lines to restrain its dispensation of justice.” Id.
We have considered appellants’ remaining claims and conclude that they do not warrant any relief. The judgment of the District Court is affirmed as to Fiorillo and Krzeminski; as to Conners, the judgment is reversed and the cause remanded for a new trial in accordance with this opinion. Appellee may recover two-thirds of his costs.
The writer’s view may be briefly summarized. Two aspects of a defendant’s state of mind are relevant to the constitutional tort of using excessive force in violation of section 1983. A required element of the tort is an intention to use force. Negligence is not a basis of liability for constitutional torts. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Dodd v. City of Norwich, 827 F.2d 1, 3 (2d Cir.1987) (on rehearing). If an officer making an arrest accidentally stumbles, falls against a suspect, and thereby knocks him to the ground and breaks his arm, the amount of force applied may well be excessive, but the constitutional tort of using excessive force has not occurred. Once it is shown that the defendant intended to use force, the plaintiff is entitled, though not required, to prove that the defendant acted "maliciously and sadistically for the very purpose of causing harm." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). That state of mind, Judge Friendly observed in Johnson, is among the "factors” that a court may consider to determine whether the conduct surpasses a common law battery and rises to the level of a constitutional tort. Proof of such an aggravated state of mind is a permissible way of proving the constitutional tort, though it is not required, see Ladnier v. Murray, 769 F.2d 195, 199 n. 4 (4th Cir.1985).
In this case, it was undisputed that Fiorillo intended to use force. The prior excessive force judgment was therefore not needed and not admissible to prove that base-line intent. However, the plaintiff sought to prove that Fiorillo acted not only with intent to use force but also with an intent to inflict needless injury, i.e., "maliciously and sadistically for the very purpose of causing harm." Johnson v. Glick, supra, 481 F.2d at 1033. The prior judgment, evidencing recent use of excessive force, was admissible, under Rule 404(b) of the Federal Rules of Evidence to prove that aggravated state of mind. See Carson v. Polley, 689 F.2d 562, 573 (5th Cir.1982).
Concurrence
concurring:
I concur in the result reached here and in most of the discussion in the majority opinion. I write separately to explain my disagreement with Judge Newman’s statement in footnote 1 that “[t]he prior judgment, evidencing recent use of excessive force, was admissible under Rule 404(b) of the Federal Rules of Evidence to prove that aggravated state of mind [ — the intent to inflict needless injury].”
I realize that this Circuit has long been committed to the “inclusionary” approach to the admissibility under Fed.R.Evid. 404(b) of similar act evidence. See, e.g., United States v. Benedetto, 571 F.2d 1246, 1248 (2d Cir.1978) (citing McCormick, Evidence § 190, at 447 (2d ed. 1972)). Evidence of similar bad acts is admissible if it is substantially relevant for some purpose other than to show the character of a person in order to prove that he acted in conformity therewith. Id. See also United States v. Brennan, 798 F.2d 581, 589 (2d Cir.1986). However, Officer Fiorillo does not claim that the blows struck were accidental or the result of negligence. Neither does he claim that he thought the plaintiff’s nose was sturdy enough to withstand his forceful blows without injury. Therefore, I fail to see the relevance of evidence that Officer Fiorillo used excessive force against a stranger to this suit one month prior to the incident complained of in this case. This evidence only reflects on Fiorillo’s character, impermissibly sig-nalling the jury that this defendant is a police officer who was found by a court to have brutalized someone in his custody a month before the incident involved in this case and here he has done it again. This evidence should have been excluded under Fed.R.Evid. 404(b). It was also excludable under Fed.R.Evid. 403 as substantially more prejudicial than probative. See Brennan, 798 F.2d at 589.