Benbow v. Feely

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMES BENBOW,

Plaintiff, MEMORANDUM & ORDER

17-CV-6457(EK)(JRC)

-against-

THE CITY OF NEW YORK; POLICE OFFICER

BRIAN FEELEY; POLICE OFFICER MATTHEW

ROSIELLO; et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff James Benbow sued the City of New York and

several officers of the New York City Police Department,

asserting claims under 42 U.S.C. § 1983 and state law. In

December 2024, after receiving a report and recommendation from

Magistrate Judge Cho, this Court granted summary judgment to the

defendants on several of Benbow’s claims.

The Court permitted the following claims to proceed:

(1) Section 1983 claims for excessive force against two

officers, and (2) state-law assault and battery claims against

those same officers. The Court also reserved judgment on

Benbow’s failure-to-intervene claim against Officer Kenneth

Anderson. See Benbow v. City of New York, No. 17-CV-6457, 2024

WL 5165073, at *10 (E.D.N.Y. Dec. 19, 2024).

After reviewing the parties’ supplemental briefing,

the Court concludes that qualified immunity bars Benbow’s

failure-to-intervene claim against Anderson.

Background

This order assumes familiarity with the procedural and

factual background, which is set out in Judge Cho’s report and

recommendation and the Court’s prior order on summary judgment.

See Benbow v. City of New York, No. 17-CV-6457, 2022 WL 22902936

(E.D.N.Y. Aug. 31, 2022) (report and recommendation); Benbow,

2024 WL 5165073 (summary judgment order).

Legal Standard

Summary judgment is appropriate where there is no

genuine dispute of material fact, such that the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The movant must show that there is no such dispute. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). At that point,

the non-movant can avoid summary judgment only by identifying

“specific facts showing that there is a genuine issue for

trial.” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998).1

If the non-movant carries the burden of proof on a given issue,

the movant need only point out a dearth of evidence supporting

1 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

an essential element of the non-movant’s case. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

Discussion

Qualified immunity shields a state official from a

suit for damages unless (1) “the official violated a statutory

or constitutional right,” and (2) that right was “clearly

established at the time of the challenged conduct.” Terebesi v.

Torreso, 764 F.3d 217, 230 (2d Cir. 2014). The Supreme Court

has “repeatedly told courts . . . not to define clearly

established law at a high level of generality, since doing so

avoids the crucial question [of] whether the official acted

reasonably in the particular circumstances that he or she

faced.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (emphasis

added).

A state official is liable for failure to intervene

when he (1) “observes the use of [excessive] force” by other

officers, (2) “has sufficient time to act to prevent it,” and

(3) fails to do so. Figueroa v. Mazza, 825 F.3d 89, 106 (2d

Cir. 2016). In this case, however, the Court need not decide

whether a reasonable jury could find Anderson liable under this

standard. This is because Benbow has identified no clearly

established law that notified Anderson — at the time of the

shooting — that he had a duty to intervene. Furthermore, the

Court’s own research did not reveal a single case in which a

federal court permitted a Section 1983 claim to proceed against

an officer who failed to intervene against another officer in

the act of firing his weapon. Indeed, the cases that do

confront this fact pattern regularly proceed in the opposite

direction.2 Accordingly, Anderson is entitled to qualified

immunity.

The parties diverge on how to apply the “clearly

established law” requirement in the failure-to-intervene

context. Benbow argues that the Court need only answer one

question: was the illegality of the conduct that Anderson

observed — that is, the other officers’ firing — clearly

established? If the answer is yes, he argues, the analysis is

over: qualified immunity does not apply. On this view, a

failure-to-intervene claim is simply a “pathway to liability”

for a bystander officer. Echavarria v. Roach, No. 16-CV-11118,

2017 WL 3928270, at *11 (D. Mass. Sept. 7, 2017). Once the

plaintiff establishes that he was the victim of clearly

excessive force, neither the officer who applied that force nor

2 Such cases often conclude that the defendant lacked any “realistic

opportunity” to stop the shooting. See, e.g., Scott v. City of Saginaw, 738

F. Supp. 3d 937, 948 (E.D. Mich. 2024) (dismissing claim for failure to

intervene in a “shooting that occurred within a few seconds of the Officer

Defendants’ entrance”); Allen v. Lo, 751 F. Supp. 3d 863, 883 (M.D. Tenn.

2024) (no realistic opportunity to intervene when shooting “took less than

three seconds”); Smith v. Sawyer, 435 F. Supp. 3d 417, 438 (N.D.N.Y. 2020)

(no realistic opportunity to intercede “given the fast paced nature of the

encounter”). There is evidence in this case that would support a finding

that the shooting lasted longer than in these cases — maybe substantially

longer. See Feeley Dep. 146:17-24, ECF No. 103-11 (defendant testifying that

the shooting could have lasted up to thirty seconds). Still, the lack of a

clearly established rule governing this circumstance is dispositive.

the officer who failed to oppose it are qualifiedly immune.

Id.; cf. Figueroa, 825 F.3d at 106 (“Liability attaches on the

theory that the officer, by failing to intervene, becomes a

tacit collaborator in the illegality.”).

The defendants respond that this formulation is

incomplete. On their view, the Court must answer a second

question: was Anderson’s duty to intervene itself clearly

established? Put more concretely, the defendants argue that to

overcome the qualified immunity defense, Benbow must show that

any reasonable officer in Anderson’s position would have known

(1) that an ongoing shooting was unlawful, and (2) that he had a

duty to intervene and stop that shooting.

At least three circuits have expressly adopted the

defendants’ two-step formulation. See Joseph ex rel. Est. of

Joseph v. Bartlett, 981 F.3d 319, 345 (5th Cir. 2020)

(“Plaintiffs have the burden to demonstrate . . . [that] any

reasonable officer would have known that the Constitution

required them to intervene.”); Hammond v. Cnty. of Oakland, 825

F. App’x 344, 347 (6th Cir. 2020) (“[Plaintiff] cites no caselaw

clearly establishing that officers who are not trained as dog

handlers have a duty to intervene and control a dog [that was

using excessive force] notwithstanding the presence of the dog’s

handler.”); Robinson v. Payton, 791 F.3d 824, 826 (8th Cir.

2015) (reversing denial of summary judgment because the

defendant’s “duty to intervene in the circumstances was not

clearly established”).3

One circuit has adopted Benbow’s one-step approach.

See Helm v. Rainbow City, 989 F.3d 1265, 1278 (11th Cir. 2021)

(“Once this Court establishes that the use of force is not

entitled to qualified immunity and other officers could have

intervened but did not, the Court does not conduct a separate

clearly established analysis pertaining to each officer’s

failure to intervene.”).

Second Circuit precedent at least favors — if not

compels — the majority view. The key case is Lennox v. Miller,

968 F.3d 150 (2d Cir. 2020). There, the court reviewed a

district court’s denial, at summary judgment, of qualified

immunity for two police officers. Id. at 152. The plaintiff

brought an excessive force claim against one officer (Clarke),

and a failure-to-intervene claim against another (Miller). Id.

The Second Circuit affirmed the denial of qualified immunity as

to Clarke because it could not say, “as a matter of law, that

Officer Clarke did not” employ clearly excessive force. Id. at

157. Notwithstanding that conclusion, the panel went on to hold

3 Some district courts have also interpreted the First Circuit’s case

law as impliedly adopting the two-step approach. See, e.g., Cosenza v. City

of Worcester, 355 F. Supp. 3d 81, 100 (D. Mass. 2019) (citing Torres-Rivera

v. O’Neill-Cancel, 406 F.3d 43, 55 (1st Cir. 2005)); Echavarria, 2017 WL

3928270, at *11 (same).

that Miller was entitled to qualified immunity on the failure-

to-intervene claim:

There is no dispute that at the time Officer Clarke used

force against Lennox, Officer Miller was engaged in

crowd control. Even assuming that Officer Miller

observed Officer Clarke’s use of force, there is no

evidence in the record that would suggest he had a

realistic opportunity to intervene that he then

disregarded. Nor do we know of any clearly established

law that would require him to abandon his crowd control

duties and intervene to stop Officer Clarke's use of

force. Thus, Officer Miller was entitled to summary

judgment on the basis of qualified immunity . . . .

Id. at 158 (emphasis added).

Thus, Miller reasoned that an officer is entitled to

qualified immunity unless the law clearly established both the

illegality of the observed conduct and his own duty to

intervene. The court acknowledged that Clarke could have used

excessive force, id. at 157, and it assumed that Miller had

witnessed that force. Id. at 158. But this was not enough to

surmount qualified immunity, because Miller was not on notice of

a duty to abandon his other duties and proceed to the victim’s

defense.4 Id.

4 The Second Circuit offered an alternative basis for its decision —

namely, the absence of evidence that Miller had a realistic opportunity to

intervene. Miller, 968 F.3d at 158. But this does not render its qualified-

immunity holding dicta. The court did not “rest its holding on only one of

its two stated reasons.” MacDonald, Sommer & Frates v. Cnty. of Yolo, 477

U.S. 340, 346 n.4 (1986) (distinguishing between dicta and alternative

holdings). Rather, it implied that both were independently sufficient. And

it is well-established that “where a decision rests on two or more grounds,

none can be relegated to the category of obiter dictum.” Omega SA v. 375

Canal, LLC, 984 F.3d 244, 251 n.4 (2d Cir. 2021) (quoting Woods v. Interstate

Realty Co., 337 U.S. 535, 537 (1949)).

The Second Circuit’s approach in Miller is consistent

with the Supreme Court’s qualified immunity jurisprudence. That

jurisprudence requires an examination of the specific context in

which an officer acted. See Kisela v. Hughes, 584 U.S. 100, 104

(2018) (in excessive force cases, officers are “entitled to

qualified immunity unless existing precedent squarely governs

the specific facts at issue”); accord City of Escondido v.

Emmons, 586 U.S. 38, 42-43 (2019). Perhaps more importantly,

the Court’s cases command an examination of the given officer’s

own conduct, not that of his colleagues. See, e.g., Pearson v.

Callahan, 555 U.S. 223, 244 (2009) (“The principles of qualified

immunity shield an officer from personal liability when an

officer reasonably believes that his or her conduct complies

with the law.” (emphasis added)). To hold otherwise would risk

raising the specter of strict or vicarious liability.5

Benbow has identified no case suggesting that

Anderson’s duty to intervene was clearly established. And the

5 Because liability for failure to intervene requires an underlying

violation, it is perhaps analogous to deliberate-indifference liability.

There, too, the case law requires a fact-specific assessment of the non-

acting supervisor’s own circumstances. See, e.g., Tangreti v. Bachmann, 983

F.3d 609, 618 (2d Cir. 2020) (in a deliberate indifference case, “the focus

is on what the supervisor did or caused to be done” (emphasis in original));

Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) (framing

issue on appeal as “whether a reasonable police commissioner would have

understood that his action or inaction . . . arguably violated [the

plaintiff’s] constitutional right to be free from deprivations of property

without due process” (emphasis added)).

Court has located none. Accordingly, Anderson is entitled to

qualified immunity on Benbow’s failure-to-intervene claim.

Conclusion

For the foregoing reasons, Anderson’s motion for

summary judgment on Benbow’s failure-to-intervene claim is

granted. The Clerk of Court is respectfully directed to dismiss

Anderson from this action.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State s District Judge

D ated: April 25, 2025

Brooklyn, New Y ork