Recently, the Chair of the House Committee on Corrections of the Texas House of Representatives, the Honorable James White, requested the Texas Attorney General, Mr. Ken Paxton, to issue an opinion of whether a peace officer in the State of Texas has the duty to intervene with a fellow police officer, if that officer is violating the civil rights or another citizen.
The Representative asks the question in both contexts, professional and criminal liability.
His inquiry regarding professional liability is based on the legislation established in Article 2.13 of the Code of Criminal Procedure (TCCP) which establishes “the duty of every peace officer to preserve the peace within the officer’s jurisdiction.” and that pursuant to that duty, a peace officer “shall . . . interfere without warrant to prevent or suppress crime” when authorized. TEX. CODE CRIM. PROC. art. 2.13(a), and art. 2.13(b)(1); caselaw where in Garza v. Harrison, 574 S.W.3d 389, 403 (Tex. 2019) the Texas Supreme Court ruled that “[p]eace officers are also expected to stop crime whenever it occurs.”
His criminal liability inquiry stemmed from Article 39.03 of the Texas Penal Code (TPC) which states in part:
- A public servant acting under color of his office or employment commits an offense if he:
- (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
- (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful…
In a very superficial and legally flawed opinion, the Attorney General stated that he could not conclude that a peace officer has the duty to intervene with another peace officer who is committing the crime established in Article 39.03 of the TPC.
Notwithstanding, a simple analysis could easily establish that a peace officer that fails to intervene where a fellow police officer is clearly violating the civil rights of a person, could incur in civil and criminal liability.
Let’s begin with civil liability. Under the Civil Rights Acts, 42 U.S.C. § 1983, a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress” (Emphasis added). That means that any public servant including a police officer, who violates the Constitutional Rights of any person is liable for the damages caused to that person because of such violation.
Our analysis here will assume that the Constitutional Right violated by the officer is clearly established law at the time the conduct occurred, so there is no qualified immunity.
For our analysis’s sake, let’s say that an officer has clearly violated the Constitutional Rights of a person, and his partner is right there and fails to act or intervene. That officer under Federal Law could be subject to “bystander liability” as long as the following elements are proven: that the bystander officer “(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) is present at the scene of the constitutional violation; (3) has a reasonable opportunity to prevent the harm; and (4) chooses not to act”. See, Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).
The United States Court of Appeals for the 5th Circuit, creates precedent that binds all of the United States District Courts in Texas. Wherefore the 5th Circuit established the following precedent under Whitney, supra: that when a police officer is present at the scene with witnesses and knows a fellow officer is violating a person’s well established Constitutional Rights, he has a reasonable opportunity to intervene. If the officer chooses not to intervene, he is liable for any injury that person suffers.
Therefore, the 5th Circuit has established at least a civil duty upon a police officer to intervene when he witnesses a fellow officer violating a clearly established constitutional right of a person.
Another established law here in Texas declares that a police officer who violates a person’s constitutional rights also commits a criminal offense per Article 39.03 of the TPC. But even so, the Attorney General’s opinion mentions that Article 2.13 of the TCCP establishes “the duty of every peace officer to preserve the peace within the officer’s jurisdiction.” and that pursuant to that duty, a peace officer “shall . . . interfere without warrant to prevent or suppress crime” when authorized.
With this said, it is beyond my comprehension, how the Attorney General could not conclude that an officer has a duty to intervene when another officer is clearly committing a criminal offense in front of him. Technically, an officer who does not intervene could be criminally liable through the Law of the Parties.
Article 7.02 of the TPC states that a person is criminally responsible for an offense committed by the conduct of another if among others he/she has a legal duty to prevent a crime from occurring and he/she purposely promotes it, assists in committing it, or fails to make any reasonable efforts to stop it from occurring. Although there is no case law that has addressed the failure to intervene by a police officer when he sees a fellow officer violating the constitutional right of another person (which is a criminal offense) the wording of Article 7.02 of the TPC is unequivocal, when it states that a person is responsible of a crime when he knows that the crime is going to happen and fails to make reasonable efforts to prevent that crime from occurring.
A prosecutor can argue that an officer who saw that his fellow officer was using unjustifiable and excessive force against a person, knew that the fellow officer was committing a crime and needed to intervene. In theory, this argument allows for the prosecutor to charge the offending officer with a crime under Articles 39.03 and 7.02 of the TPC.
To me, the Texas Attorney General’s opinion is superficial and legally flawed. A simple analysis of Texas’ laws and the United States Civil Rights Act reveal the answer that the Honorable James White was seeking: An officer who witnesses another officer clearly violate a person’s Constitutional Right, has a duty and obligation to intervene under state and federal law. If that officer fails to comply with his duty, he could be civil and criminally liable.
If you have experienced an unfair or unjust experience during an arrest, it’s necessary to have a criminal defense attorney who knows the ins and outs of the criminal system. We are on your side.