# Benbow v. Feely

> District Court, E.D. New York · April 25, 2025

URL: https://www.frixlaw.com/law-library/cases/10852166

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 25, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

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.

------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10852166. Public record. Not legal advice.