Excessive force against the Rikers inmate, but no case against bystander officer or the City

In this police misconduct lawsuit, the plaintiff says that correction officers beat him in his cell while he was handcuffed after he refused their directive to pull his hands back from the slot in the cell door. Sounds like a good case. After all, this was a team of officers who entered the cell and, assuming the plaintiff had no weapon, they were able to subdue him without excessive force, right? But the case was dismissed on summary judgment and the Court of Appeals affirms. The case is over.

The case is McGrier v. City of New York, a summary order issued on February 24. The Court of Appeals (Walker, Sack and Sullivan) agrees that "there is some evidence to suggest that one or more of the individual officers applied excessive force against McGrier." So plaintiff is off to a good start. Here's the problem: he named as a defendant officer Robles and the City of New York as defendants. They are not liable.

Robles is not liable because there is no evidence to suggest he was involved in the decision to use force. While you can sue officers over their failure to protect you from the use of force effected by other officers, that only works when the officer standing by had a realistic opportunity to intervene to prevent the harm. That's the rule in Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994). It does not look like Robles was in a position to stop the excessive force. That is a common issue in these cases, as the force often proceeds so quickly that the other officers could not have intervened even if they wanted to.

What about the case against New York City? If you sue the City under Section 1983, you have to show the injuries resulted from a policy or practice of excessive force. We call that Monell liability. Plaintiff's best evidence on this point is a report from the Department of Justice in 2014 that suggests there was a custom of excessive force at Rikers prior to July 2013 as to adolescent inmates. Plaintiff's assault took place in 2013. But that report does not address any pattern of excessive force against adult inmates for that time period. The Court of Appeals says that distinction means that plaintiff cannot show such a pattern against inmates like him, and the case against the City is dismissed. 

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