Officer should be aware of the below case.  The Fifth Circuit held that officers who are aware of a constitutional violation can be liable under bystander liability if they fail to intervene.  In such a case, because the law is clearly established, an officer will be denied qualified immunity.  It is additionally a violation of many department policies (including NOPD) to fail to intervene in an unlawful use of force.

Fifth Circuit

Hamilton v. Kindred, 2017 U.S. App. LEXIS 623 (5th Cir. Tex. Jan. 12, 2017)

Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. §1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches; therefore, he was entitled to qualified immunity.

The district court denied Officer Kindred qualified immunity. The court found that Hamilton and Randle had adequately alleged a claim of excessive force. The court also held it was clearly established at the time of the incident that bystander liability applied. In addition, the court concluded that there was a serious dispute as to material facts in the case regarding the objective reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court of Appeals.

First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in their complaint that they were seized during the traffic stop when they were handcuffed and placed in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirty minutes and subjected to invasive body cavity searches in violation of the Fourth Amendment.

Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities constituted a use of force, which the plaintiffs allege occurred during their seizure.

Third, at the time of the incident, it was clearly established that it was not reasonable to conduct a roadside body cavity search, unless there were exigent circumstances that required the search to be conducted on the roadside rather than at a medical facility. Consequently, the court found that Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of force “excessive to its need.”

The court further held, at the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and he had a reasonable opportunity to prevent the harm.

However, because there were serious disputes as to material facts regarding Officer Kindred’s potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the case and dismissed Officer Kindred’s appeal.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-40611/16-40611-2017-01-12.pdf?ts=1484267434
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