Garbacik v. Janson , 111 F. App'x 91 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-29-2004
Garbacik v. Janson
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3149
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"Garbacik v. Janson" (2004). 2004 Decisions. Paper 320.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3149
MICHAEL GARBACIK;
LAWRENCE HOFF
v.
DAVID JANSON;
MICHAEL MINANNO,
Appellants
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 98-cv-00085)
District Judge: Honorable Thomas I. Vanaskie
Submitted Under Third Circuit LAR 34.1(a)
September 14, 2004
Before: SCIRICA, Chief Judge, ALITO and AM BRO, Circuit Judges
(Filed September 29, 2004)
OPINION
AM BRO, Circuit Judge
David Janson and Michael Minanno appeal the decision of the District Court for
the Middle District of Pennsylvania denying their motion for a new trial. For the reasons
set out below, we affirm the decision of the District Court.
I.
Because we write solely for the benefit of the parties, we recite only those facts
relevant to the issue on appeal. Michael Garbacik brought excessive force claims against
Janson and Minanno, Pennsylvania State Police Troopers, pursuant to 42 U.S.C. § 1983.1The incident giving rise to the suit occurred on October 26, 1997. The case was tried
before a jury on June 4-8, 2001.
In his complaint, Garbacik asserted that one of the troopers used excessive force in
subduing him and that the other failed to intervene. It is not disputed that both officers
were present during the incident. Garbacik, however, testified that only one officer used
excessive force and could not identify whether that officer was Janson or Minanno.
The special verdict questions initially submitted to the jury were the following:
1. Do you find that plaintiff Michael Garbacik proved, by a preponderance
of the evidence, that defendant David Janson used unreasonable force under
the circumstances against Michael Garbacik?
...
2. Do you find that plaintiff Michael Garbacik proved, by a preponderance
of the evidence, that defendant Michael Minanno used unreasonable force
under the circumstances against Michael Garbacik?
...
3. Do you find that plaintiff Michael Garbacik proved by a preponderance
of the evidence that defendant Michael Minanno failed to intervene when
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A second individual, Lawrence Hoff, also filed suit against Janson and Minanno.
Hoff’s and Garbacik’s cases were tried together, but the jury returned a verdict in favor of
Janson and Minanno as to Hoff’s claims. He did not appeal.
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defendant David Janson used unreasonable force against Michael Garbacik?
...
4. Do you find that plaintiff Michael Garbacik proved by a preponderance
of the evidence that defendant David Janson failed to intervene when
defendant Michael Minanno used unreasonable force against Michael
Garbacik?
After the jury had begun deliberating, it came back with following question: “If
we don’t know which trooper [used excessive force], how do we vote?” In response, the
District Court revised the special verdict questions:
1. Do you find that plaintiff Michael Garbacik proved, by a preponderance
of the evidence, that he was subjected to the use of unreasonable force
under the circumstances?
...
2. If you answered Question 1 yes, do you find that plaintiff Michael
Garbacik proved, by a preponderance of the evidence, that defendant
Michael Minanno is responsible for the use of unreasonable force, either by
his actual use of force or his failure to intervene?
...
3. If you answered Question 1 yes, do you find that plaintiff Michael
Garbacik proved, by a preponderance of the evidence, that defendant David
Janson is responsible for the use of unreasonable force, either by his actual
use of force or his failure to intervene?
The jury answered all three questions in the affirmative and awarded Garbacik $10,000 in
compensatory damages.
Thereafter, Janson and Minanno filed post-trial motions pursuant to Rules 50(b)
and 59 of the Federal Rules of Civil Procedure for judgment as a matter of law and for a
new trial. The District Court ultimately denied these motions. Janson and Minanno
timely appealed. We have jurisdiction under 28 U.S.C. § 1291.
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II.
Janson and Minanno argue that, for qualified immunity purposes, it was not clearly
established at the time of the incident in this case whether § 1983 liability could lie for
failure to intervene. See Anderson v. Creighton, 483 U.S. 635, 639 (1987) (stating that
“whether an official protected by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the ‘objective legal reasonableness’
of the action, assessed in light of the legal rules that were ‘clearly established’ at the time
it was taken” (citations omitted)). Accordingly, they contend a new trial is warranted
because the revised special jury questions make it impossible to tell which of them
engaged in the excessive use of force.
We “review [a] district court’s order ruling on a motion for a new trial for abuse of
discretion unless the court’s denial is based on the application of a legal precept, in which
case the standard of review is plenary.” Smith v. Holtz, 210 F.3d 186, 200 (3d Cir. 2000)
(citation omitted). Because the issue of § 1983 liability for failure to intervene is a legal
one, we exercise plenary review.
In Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972), the plaintiff brought an
excessive force claim against, among others, two police officers. Similar to our case,
testimony established that only one of the two officer-defendants engaged in the alleged
excessive force violation. We stated that “[m]ere presence of a person, when an assault
and battery is committed by another, even though he mentally approves of it, but without
encouragement of it by word or sign, is not sufficient of itself to charge him as a
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participator in the assault.” Id. at 282. Based on Howell, Janson and Minanno contend
there was no clearly established duty to intervene in 1997, the time of the incident in our
case.
We disagree. Several circuit courts had concluded prior to 1997 that the direct use
of excessive force is not required to impose liability under § 1983. See Fundiller v.
Cooper City, 777 F.2d 1436, 1441-1442 (11th Cir. 1985) (“It is not necessary that a police
officer actually participate in the use of excessive force in order to be held liable under
section 1983. Rather, an officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another officer’s use of excessive force . . . can
be held liable for his nonfeasance.”); Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir. 1983)
(concluding that an officer has “a duty to prevent the use of . . . force, even if the officers
beating [the victim] were [the officer’s] superiors”); Ware v. Reed, 709 F.2d 345, 353
(5th Cir. 1983) (concluding that an “instruction on the defendant’s alleged acquiescence
in the unconstitutional conduct of other officers should have been given”); Bruner v.
Dunaway, 684 F.2d 422, 426 (6th Cir. 1982) (concluding “that it is not necessary, in order
to hold a police officer liable under § 1983, to demonstrate that the officer actively
participated in striking a plaintiff”); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)
(stating that “one who is given the badge of authority of a police officer may not ignore
the duty imposed by his office and fail to stop other officers who summarily punish a
third person in his presence or otherwise within his knowledge” and that this
responsibility exists “as to nonsupervisory officers who are present at the scene of such
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summary punishment”). And to the extent that Howell could have been interpreted as
adopting a contrary rule in the Third Circuit, we clarified in 1995 that liability will lie if
an officer “had knowledge of and acquiesced in” a § 1983 violation. Baker v. Monroe
Township, 50 F.3d 1186, 1190-1191 (3d Cir. 1995).
Janson and Minanno argue, however, that Baker did not clearly establish a duty to
intervene on the part of nonsupervisory officers in the Third Circuit because the officer in
Baker was the highest ranking officer on the scene. They further contend that such a duty
was not clearly recognized until Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002).
Once again, we disagree. In Smith, we stated: “Although the specific context of
our analysis [in Baker] only involved an officer’s liability for the actions of police
officers under his supervision, we do not interpret Baker as suggesting that liability for
failure to intervene is solely limited to supervisors or officers who outrank their offending
colleagues.” Id. at 651. Based on Smith and the other authorities cited, we conclude that
the duty to intervene on the part of nonsupervisory employees was clearly established at
the time of the incident in this case. Accordingly, we find no error with the revised
special jury questions.2
*****
In this context, we affirm the order of the District Court denying Janson’s and
Minanno’s motion for a new trial.
2
Because we conclude the revised jury questions were proper, we decline to reach
Garbacik’s additional argument that Janson and Minanno waived the right to raise their
qualified immunity argument on appeal.
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