547 F. App'x 874
10th Cir.2013Background
- Officer Collins seeks to dismiss Savannah's §1983 excessive‑force claim under Rule 12(b)(6) based on qualified immunity.
- Savannah alleges Collins failed to intervene to stop excessive force by Officer Knab and police dog Zorro during arrest.
- Collins arrived first, commanded Savannah to lie face down; Knab and Zorro arrived 3–5 minutes later and attacked Savannah with the dog.
- District court denied dismissal, applying Mick v. Brewer to permit the §1983 claim against Collins for failure to intervene.
- Court held Savannah’s allegations plausibly stated a failure‑to‑intervene claim and that the right was clearly established, denying qualified immunity.
- On review, the Tenth Circuit reversed, granting Collins’ 12(b)(6) motion and remanding with directions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Savannah plead a plausible failure to intervene claim? | Savannah contends Collins had a realistic opportunity to intervene. | Collins argues there were no facts showing a feasible opportunity to intervene. | Yes, but the issue is resolved against Savannah; see held below for qualified immunity analysis. |
| Is Collins entitled to qualified immunity on the failure to intervene claim? | Savannah contends the duty to intervene was clearly established and violated. | Collins contends no plausible opportunity or control over the dog existed to intervene. | Yes, Collins is entitled to qualified immunity; the claim is not plausibly alleged. |
Key Cases Cited
- Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (accepting factual allegations at 12(b)(6) stage; clearly established standard)
- Iqbal, 556 U.S. 662 (2009) (pleading requirements; plausibility standard)
- Pearson v. Callahan, 555 U.S. 223 (2009) (tests for qualified immunity; clearly established inquiry)
- Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (duty to intervene; realistic opportunity to intervene required)
- Mick v. Brewer, 76 F.3d 1127 (10th Cir. 1996) (initially recognized failure to intervene claim under §1983)
- Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007) (first officer on scene has duty to keep arrest from getting out of hand)
- Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008) (requires realistic opportunity to intervene)
- Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984) (liability possible for failure to intervene when opportunity exists)
- Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994) (attack duration affects opportunity to intervene)
- Gaudreault v. Municipality of Salem, 923 F.2d 203 (1st Cir. 1990) (timing of attack relevant to intervention opportunity)
- O’Neill v. Krzeminski, 839 F.2d 9 (2d Cir. 1988) (rapid blows may negate opportunity to intervene)
- Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) (two minutes could be sufficient time to intervene)
- Smith v. United States, 561 F.3d 1090 (10th Cir. 2009) (Iqbal/pleading standards applied)
- Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991) (liberal pleading standard for pro se filings)