Duty to Intercede Isn't Just For Use of Force

This post is only offered as a discussion topic only and does not represent legal advice. Officers must refer to the laws in their own State as well as their agency's policies, which can be more restrictive on officers that the law requires.

Scenario: While an officer and his partner are interviewing an arrestee who doesn't want to speak, the officer's partner tells the suspect that he better waive his right to remain silent otherwise the judge may impose a harsher sentence on him. If the officer doesn't step in and correct this violation of the suspect's constitutional rights, could he be liable for what his partner said?

Answer: This allegation was made recently against two detectives in a 9th Circuit Case called Tobias v. Arteaga from 2021. In that case, the court said, "(The detectives) did not directly violate (the suspect's rights) during interrogation because they did not make threats of harsher punishment based on lack of cooperation. However, to the extent they were aware of the violation as it happened (by another officer), they may have had a duty to intercede to stop the constitutional violation and would not be entitled to qualified immunity." 

One of the cases the court referenced was a 9th Circuit Case from 2000 called Cunningham v. Gates. In that case, the court said "Police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen."

Officer's must remember that duty to intercede applies to more than excessive force. It includes any time an officer sees another officer violating a person's constitutional rights, including during interviews.