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Complaint Alleged ‘Bystander Liability’

A civil rights complaint of excessive force that alleged defendant officers, on a particular day, “did commit” or “allow to be committed an unreasonable seizure” that deprived plaintiffs of their constitutional rights without due process of law, stated a claim for bystander liability under 42 U.S.C. § 1983, even without using that precise phrase, and the 4th Circuit reverses summary judgment for defendant officers.

This court recognizes a cause of action for bystander liability premised on a law officer’s duty to uphold the law and protect the public from illegal acts, regardless of who commits them. To prove bystander liability, a plaintiff must show that a law-enforcement officer knew that a fellow officer was violating an individual’s constitutional rights; had a reasonable opportunity to prevent the harm; and chose not to act.
Here, plaintiff’s complaint alleged that Officer Lowery and Officer Adey “did on July 8, 2007, commit or allow to be committed an unreasonable seizure which deprived the plaintiffs of their Constitutional rights without affording them due process of law.” Appellants maintain on appeal that this language sufficiently states a cause of action for bystander liability, whereas appellees contend the district court erred in determining, post-trial, that bystander liability had been sufficiently pleaded the entire time and that they were put on notice of appellants’ claim.

Here, appellees did not raise the sufficiency of the pleading in the § 1983 count with respect to bystander liability until their reply to appellants’ opposition to the motions for summary judgment. Even then, they contended only that they were never put on notice of appellants’ legal theory of bystander liability. The factual pleading framework of Twombly-Iqbal is largely inapplicably here, as appellees’ argument is that appellants failed to connect the dots in their complaint – not that the complaint itself contains insufficient factual information from which to draw reasonable inferences.

Appellees first complain that the phrase “bystander liability” appeared nowhere in the complaint. However, appellants were not required to use any precise or magical words in their pleading. Based on Officer Lowery’s and Officer Adey’s undisputed presence at the scene of the altercation and the allegation that the officers allowed to be committed “unreasonable” seizures, it requires no legal gymnastics or finagling to liken the language of the complaint with the notion that the identified officers knew that fellow officers were violating appellants’ constitutional rights by using excessive force, had a reasonable opportunity to prevent such violations and chose not to act. It was “an undoubtedly natural consequence” that, absent intervention by the defendant officers, other officers would continue to violate appellants’ constitutional rights.

Appellees next argue that they were not put on notice of appellants’ bystander liability claim in that a bystander-liability cause of action was never asserted by appellants in their discovery responses. We did not find anything in appellees’ interrogatories to appellants or the transcripts of appellants’ depositions where appellees asked appellants about their theories of liability for the case. To the extent appellees claim that appellants should have mentioned bystander liability in response to their discovery inquiries, appellees simply did not ask the correct questions. Regardless, it is the complaint – not depositions or interrogatories – that provides “fair notice” to defendants of the allegations against them.

We affirm the district court’s post-trial determination that appellants’ complaint sufficiently states a claim for bystander liability pursuant to 42 U.S.C. § 1983. We reverse and vacate the district court’s summary judgment ruling to the opposite effect.

The only defendant that the reversal of summary judgment with respect to bystander liability impacts is Officer Lowery because he is the only defendant against whom the § 1983 count survived dismissal. We reverse and remand to the district court to reconsider the parties’ summary judgment papers and to order additional briefing, if necessary, regarding Officer Lowery’s potential liability as a bystander to the assaults against plaintiffs.
Appellants also appeal the grant of summary judgment with respect to Officer Adey as a principal actor in the assaults and the county as being vicariously liable for the same. We do not accuse appellants of submitting a sham affidavit to create a bogus material factual dispute with the goal of defeating summary judgment. Nevertheless, we must decide this case on the record before us and based on that record, we cannot say the district court erred due to the inconsistencies between appellant Barnett’s prior testimony and his affidavit. We affirm summary judgment for Officer Adey on the excessive force and battery counts with respect to all appellants and summary judgment to Officer Lowery in his alleged role as a principal actor on the § 1983 count.

Affirmed in part, reversed in part and remanded.

Stevenson v. City of Seat Pleasant, Md. (Floyd) No. 12-2047, Feb. 21, 2014; USDC at Greenbelt, Md. (Titus) Gregory L. Lattimer for appellants; Shelley L. Johnson for appellees. VLW 014-2-037, 28 pp.

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