TBD | 4 PJI 6.2 | Pattern Jury Instructions

[Plaintiff] contends that [third person] violated [plaintiff’s] [specify right] and that [defendant] should be liable for that violation because [defendant] failed to intervene to stop the violation.

[Defendant] is liable for that violation if plaintiff has proven all of the following four things by a preponderance of the evidence:

First: [Third person] violated [plaintiff’s] [specify right].

Second: [Defendant] had a duty to intervene. [I instruct you that [police officers] [corrections officers] have a duty to intervene to prevent the use of excessive force by a fellow officer.] [I instruct you that prison guards have a duty to intervene during an attack by an inmate in the prison in which they work.]

Third: [Defendant] had a reasonable opportunity to intervene.

Fourth: [Defendant] failed to intervene.

COMMENT

A defendant can in appropriate circumstances be held liable for failing to intervene to stop a beating. See, e.g., Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002) (holding that “a corrections officer's failure to intervene in a beating can be the basis of liability for an Eighth Amendment violation under § 1983 if the corrections officer had a reasonable opportunity to intervene and simply refused to do so,” and that “a corrections officer can not escape liability by relying upon his inferior or non supervisory rank vis a vis the other officers”); Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (“extending [the Smith v. Mensinger] standard to inmate-on-inmate attacks”); Williams v. Fields, 535 Fed. Appx. 205 (3d Cir. 2013) (non-precedential opinion) (reversing grant of judgment as a matter of law because jury could have “reasonably inferred” that officer “must have seen” the beating by other officers “and declined to intervene”). Cf. Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018) (holding that a failure to intervene claim was properly dismissed because the “encounter was so brief” that the officer “simply would have had no opportunity to instruct” the other officer to stop). See also E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that “there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her — acting in their capacity as either a co-worker or supervisor — could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that the Constitution forbids”) (internal quotation marks omitted).

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4 PJI 6.2 | SECTION 1983 – FAILURE TO INTERVENE

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4 PJI 6.2 | SECTION 1983 – FAILURE TO INTERVENE

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