Officers On The Scene Of A Beating Can't Hide In The Crowd, Not In The 11th

VELAZQUEZ v. CITY OF HIALEAH, USCA-11 No. 05-13157, 2007 U.S.App. 5821, on appeal from USDC-FLSD, before USCJs Tjoflat, Carnes, Hill, opinion per curiam, filed 14 Mar 2007.

LONG STORY SHORT: Officers who admit to being at the scene of a beating and do not intervene may be liable for the harm and are not entitled to summary judgment. Binding in AL, FL, GA.

FACTS: Two officers of the Hialeah, FL PD, stopped Plaintiff for driving under the influence. After the officers handcuffed him, Plaintiff received a beating amounting to excessive force. Plaintiff did not see exactly who beat him, but both officers admitted to being present at the time.

PROCEDURE: Plaintiff sued the City of Hialeah and numerous Hialeah officers in U.S. District Court for the Southern District of Florida per 42 U.S.C. § 1983 for excessive force under the Fourth Amendment. Hialeah moved for summary judgment, arguing that even if Hialeah officers beat Plaintiff, he could not identify which ones did so and could not properly assign liability. The trial court agreed. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: Plaintiff testified that he was beaten and both officers admitted to being on the scene. In the Eleventh Circuit, an officer who stands aside and lets other officers use excessive force will be liable for his nonfeasance. Because the law prohibits both the excessive use of force and the failure to intervene, the officers' presence at the scene permits a reasonable jury to infer that one or both of them either beat up Plaintiff or let it happen. Were the law otherwise, officers could throw a bag over anyone's head and do what they wished. While the officers may well testify at trial that neither of them used excessive force and therefore neither of them needed to intervene, a jury would have to decide. GRANT OF SUMMARY JUDGMENT REVERSED and cause remanded for further proceedings.

EDITORIAL: What!? Hialeah officers might have beat somebody up? Oh, heavens no, that's not possible. Everybody around Miami knows that Hialeah is the very model of a modern, progressive, enlightened, and incorruptible local government. The police there practically NEVER do ANYthing wrong or even appear to.

(perhaps my well-informed sarcasm is not coming through)

Then again, there are such things as professional plaintiffs. I don't know what the deal is here, but I do agree with the Eleventh that if you were more or less all right just before you got arrested, but seem rather the worse for wear shortly after, then somebody should be liable.