4.6.2 Section 1983 – Liability in Connection with the Actions of Another – Failure to Intervene Model [Plaintiff] contends that [third person] violated [specify right] and that [plaintiff’s] [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 [specify right]. [plaintiff’s] 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. 293 F.3d 641, 650 (3d Cir. 2002) (holding that See, e.g., Smith v. Mensinger, “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 and that corrections officer can not escape liability by so,” “a relying upon his inferior or nonsupervisory rank visavis the other 696 Bistrian v. Levi, officers”); F.3d 352, 371 (3d Cir. [the standard to inmate-on-inmate 2012) (“extending Smith v. Mensinger] 2013 WL 4498670 (3d Cir., Aug 23, 2013) (non-precedential Williams v. Fields, attacks”); opinion) (reversing grant of judgment as a matter of law because jury could have “reasonably that officer have the beating by other officers to inferred” “must seen” “and declined intervene”).
4.6.2 Section 1983 – Liability in Connection with the Actions of Another – Failure to Intervene Model [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 nonsupervisory rank visavis 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, 2013 WL 4498670 (3d Cir., Aug 23, 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”).
4_Chap_4_2014_spring.docx