White asked for clarification on “whether a peace officer has a duty to intervene to prevent another peace officer from violating the rights of a citizen” under Texas and U.S. law.
“We have law enforcement to protect citizens violating other citizen’s rights and we have a Constitution that provides protections for citizens against the government — logically, one might think there are limitations on law enforcement as well,” White told The Texan.
The East Texas Republican pointed to a section of code which states, “A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful; (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.”
The operative question White asks is whether that statute paired with the “duty of every peace officer to preserve the peace within the officer’s jurisdiction” established in the Criminal Procedure Code creates an “absolute duty” on part of the officers to intervene.
White added, “Our code tasks officers with restoring the peace, and it doesn’t clearly differentiate between who may be violating the peace.”
“While the two provisions about which you ask could apply to peace officers generally, whether they create a duty in a specific situation will involve fact questions beyond the scope of an attorney general opinion,” Attorney General Ken Paxton’s letter stipulates.
He concluded, “Thus, we cannot conclude that there is an absolute duty for an officer to intervene under the circumstances you describe.”
In response to the opinion, White emphasized that hashing these questions out is “why we have legislative sessions.”
Not discouraged by the attorney general’s opinion — and, in fact, understanding it for what it is, guidance limited by the nature of its own purview — he added, “They could not conclusively say an ‘absolute duty’ to intervene exists in code.”
“But in my mind, the only thing ‘absolute’ in life is Jesus Christ.”
The question arises after George Floyd’s death back in June when a Minneapolis police officer, Derek Chauvin, pressed his knee on Floyd’s neck for over eight minutes. Video shows other officers standing by or encircling the scene.
Expanding beyond simply a legal question, whether officers have a moral obligation to intervene when one of their ranks violates individual rights is another part of the issue.
With no presiding case law on the subject, Paxton identified no basis on which to stand and declare the force of law requires intervention.
That does not mean, however, there is no responsibility on part of the officers to intervene when misconduct arises. Many police departments across the state and country have already implemented internal “duty to intervene” requirements.
The Dallas Police Department manual section 901.02 on the matter reads: “Members of the Dallas Police Department (both sworn and non-sworn) have an obligation to protect the public and other employees. It shall be the duty of every employee present at any scene where physical force is being applied to either stop, or attempt to stop, another employee when force is being inappropriately applied or is no longer required.”
And while incidents that might entail a “duty to intervene” receive bounteous oxygen from the media, in the grand scheme of crimes committed, they are rare. Data collected by the Texas Justice Initiative shows — without further breakdown by incident of what may fit this example specifically and what may not — that 2,013 people in Texas have died in police custody since 2005.
So far this year, 118 have died in police custody.
Collected by the Disaster Center, homicides across all categories — again, not broken down further — in Texas from 2005 to 2019, is nearly 10 times that number with 19,706.
White, who chairs the Texas House Corrections Committee, further mentioned that intra-departmental reporting of inappropriate uses of force by other officers is not rare. “Folks would be surprised to hear how many calls I get from correctional officers relaying that they’re reporting what they believe is inappropriate use of force,” he stated.
About legislation on this topic in the coming session, White said, “We’ll see what comes up and what shape it takes. We have to make sure to allow our law enforcement an appropriate level of discretion.”
He then stressed that whatever policy is codified, if any, must be flexible enough to allow the facts of the given situation to dictate whether a “duty to intervene” was abrogated. Indeed, a split-second decision differs greatly from a prolonged encounter like in the Minneapolis incident.
Editor’s Note: This story has been updated to provide more specific data from the Texas Justice Initiative on in-custody deaths.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.