affirming denial of qualified immunity in a failure- to-intervene lethal force case where the non-intervening officer and the assaulting officer are both described as “Deputy”
How later courts described this case
- affirming denial of qualified immunity in a failure- to-intervene lethal force case where the non-intervening officer and the assaulting officer are both described as “Deputy”
- reversing grant of summary judgment based on quali- fied immunity to the non-intervening “Officer” where another “Of- ficer” allowed his police dog to bite the non-resisting plaintiff for more than five minutes
- reversing grant of summary judgment based on qualified immunity to the non-inter- vening officer where he failed to intervene while another officer’s police dog attacked a non-resisting arrestee for more than five minutes
- attributing the quoted language to Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998)
Written by the judges who cited it.
The opinion
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 1 of 21
FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10273
____________________
ANTHONY DAVID NUTE,
Plaintiff-Appellee
Cross-Appellant,
versus
BRYANT DEAN WHITE,
Defendant-Appellant
Cross-Appellee,
LUCAS G. YARBOROUGH,
Defendant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:21-cv-01563-CLM
____________________
Before NEWSOM, BRASHER, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 2 of 21
2 Opinion of the Court 23-10273
Rainsville City Police officers arrested Anthony Nute for
misdemeanor assault, public intoxication, and resisting arrest. The
Chief of Police directed one of them, Officer Bryant White, to
transport Nute to the county jail in Fort Payne because there were
better medical personnel there than at the city jail. After White
took Nute into the jail, the jailers became frustrated with Nute dur-
ing the booking process and beat him in the presence of White,
who did not attempt to intervene.
Nute sued White and others under 42 U.S.C. § 1983. One of
his claims against Officer White was that his failure to intervene
while Nute was being beaten violated the Fourth Amendment.
The district court denied White’s motion for summary judgment
on qualified immunity grounds. This is his interlocutory appeal of
that denial.
I. The Facts Construed in the Light Most Favorable to Nute
In reviewing a summary judgment decision, we view the ev-
idence in the light most favorable to the non-movant, in this case
Nute. See Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir. 1995).
A. The Arrest
On March 1, 2020, one of Anthony Nute’s neighbors in
Rainsville called 911 because she saw Nute standing in the yard in
his underwear. Two City of Rainsville police officers, Officers
White and Yarbrough, responded to that call.
Video footage from one of their body cameras shows that
the officers found Nute standing in the yard in a pair of boxer shorts
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 3 of 21
23-10273 Opinion of the Court 3
with his pants down around his ankles. He was staring off into
space, breathing almost convulsively, and he refused to respond to
the officers. When one of them moved closer to him, Nute
shouted, “Get away from me!” Nute appeared to be in a trance
and under the influence of some powerful drug. The officer told
Nute to stay where he was, continued to call his name, and asked
him what he had taken. Nute continued to ignore the officers’ at-
tempts to communicate with him.
One of the officers requested that the 911 dispatcher send
paramedics to the scene. The paramedics arrived and tried unsuc-
cessfully to communicate with Nute. As one of them got close to
him, Nute swung his right arm at the man. After three more
minutes of unsuccessful attempts at communication, and after
Nute had failed to respond to repeated orders to put his hands be-
hind his back, the officers wrestled him to the ground, tased him,
and handcuffed his arms and legs behind his back.
The Chief of Police arrived at the scene. He directed that
Nute be taken to the county jail, which was better able to handle
someone in his condition than the city jail. Officer White trans-
ported Nute to the county jail, which is located in the City of Fort
Payne.
B. Events at the County Jail
County jailers met Officer White once he arrived at the jail
with Nute. While in the lobby or entrance room at the jail, White
and some jailers put Nute on the floor to undo the arm and leg
restraints that had been put on him in Rainsville after his arrest
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 4 of 21
4 Opinion of the Court 23-10273
there. They held Nute on the floor while one of them unlocked
the handcuffs that had been restraining his arms and legs behind
his back.
Once Nute’s restraints were removed, the jailers forcibly
pulled him up from the floor and pushed him into a side room.
Three jailers and Officer White went with Nute into that room. A
jail surveillance video shows what happened inside the side room.
Within seconds after the group entered it, the three jailers cornered
Nute. Officer White stood near the doorway, approximately five to
ten feet behind the jailers and Nute.
About thirteen seconds after they all had entered the side
room, one jailer punched Nute in the face, and at the same time,
another jailer smacked him over the top of the head with an open
hand. They landed their apparently unprovoked blows in rapid suc-
cession. A couple of seconds later Officer White took three or four
steps towards where the jailers and Nute were, stopping himself
about three to five feet away from them. Other than taking those
steps, Officer White did nothing.
Approximately ten seconds after inflicting the first two
blows, one of the jailers hit Nute in the face again with an open
hand. About two seconds later, another one hit him over the top
of the head with an open hand. A third jailer then forcibly pushed
Nute into the corner of the room. White watched it all from a few
feet away.
Several seconds after those blows, the jailers attempted to
wrestle Nute to the ground and one of them hit him across the side
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 5 of 21
23-10273 Opinion of the Court 5
of his head with an open hand. Without saying a word, Officer
White turned around and started walking out of the room. Before
he went through the doorway, he paused, turned back, and
watched for six more seconds as the jailers continued to beat Nute
who was lying helplessly on the floor. White said nothing and left.
It was about twenty-seven seconds after the jailers first hit
Nute, and while they continued to beat him, that White turned and
left the room where the assault was taking place. On his way out
of the jail, White didn’t talk to anyone about the beating he had
seen. He testified at his deposition that it never occurred to him to
mention the beating to any supervisors at the jail.
Officer White later admitted that as he watched the beating
happen he knew the jailers were unlawfully using force against
Nute. He testified:
Q. And they [the three jailers] pushed [Nute] up against
— beat him up against a wall over there and beat him and
continued to beat him for some period of time, didn’t
they?
A. Yes, sir.
Q. And you sat and you watched that, correct?
A. Yes.
Q. Did you take any action to or did you speak with them
at all, did you make any effort to stop them from beating
Mr. Nute?
A. No, I did not.
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 6 of 21
6 Opinion of the Court 23-10273
Q. . . . Did you recognize that what [the jailers] were doing
was unlawful?
A. Yes.
(Emphasis added.) After he had testified in his deposition that he
did nothing to stop the beating he knew was unlawful, White sub-
mitted an affidavit stating that after witnessing the assault he left
the jail, got into his vehicle, called his police chief, and “told him
what had happened.” The Chief of Police did not testify or sign an
affidavit, and there is nothing in the record to indicate what, if an-
ything, the Chief did or whether he was in a position to do so.
After White left the room where the jailers were beating
Nute, they continued to repeatedly punch, knee, and kick him. Ten
seconds after White left the room, the jailers pointed their tasers at
Nute, and one of them tased him. About ten seconds after that,
another jailer tased him. Then, for the next twenty or so seconds,
one jailer stood with his foot on Nute’s back while another tried to
remove Nute’s clothes (presumably to put a jail jumpsuit on him).
Meanwhile, the third jailer repeatedly punched and kneed Nute in
the side and back. Then, over the span of about twenty-five sec-
onds, a jailer tased Nute several times while a different one kicked
him in the stomach. The jailers struggled with Nute until they had
disrobed him completely.
For the next minute, Nute was lying naked on the floor, ap-
parently crying out in pain. The jailers forced him to stand up with
his bloodied face against one of the corners of the room. He stood
like that for a little more than a minute until suddenly one of the
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 7 of 21
23-10273 Opinion of the Court 7
jailers punched him in the head. Another one immediately pepper-
sprayed Nute in the face for five seconds. A minute later a jailer
punched him in the ribs. Six seconds later a different jailer punched
him in the stomach. After that, the jailers took Nute out of view
of the jail surveillance camera.
All told, for at least six minutes following White’s departure
from the room where he had witnessed, without any attempt to
intervene or protest, an ongoing assault on the helpless Nute, the
assault continued and he was repeatedly punched, kicked, kneed,
pepper-sprayed, and tased.
The beating the jailers inflicted on Nute broke bones in his
face and ribs and caused numerous cuts and bruises all over his
body. For their criminal conduct, the three of them were criminally
prosecuted. Jailers Jackson and Tyson were convicted of Assault in
the Second Degree, a felony, and sentenced to 9 years and 12
months. See Docket for Case, Dekalb County Circuit Court, State
v. Jackson, CC-2021-000424.00, https://perma.cc/M7V5-ZVQC;
Docket for Case, Dekalb County Circuit Court, State v. Tyson, CC-
2021-000417.00, https://perma.cc/A8AG-LWMD; cf. Keith v. Dek-
alb County, 749 F.3d 1034, 1041 n.18 (11th Cir. 2014) (taking judicial
notice of an online state court records system like Alacourt). For
Jailer Brown there are no publicly available records.
C. This Lawsuit and the Denial of Summary Judgment
Nute filed a 42 U.S.C. § 1983 lawsuit against Officers White
and Yarbrough, who had arrested him. He claimed that the arrest
was without probable cause in violation of the Fourth
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 8 of 21
8 Opinion of the Court 23-10273
Amendment. He also claimed that Officer White violated his
Fourth Amendment rights when he did not intervene to stop the
jailers’ use of excessive force against him.
The parties filed cross-motions for summary judgment.
Nute sought partial summary judgment on liability for both of his
claims, which the court denied. The officers sought summary
judgment on qualified immunity grounds on each of the claims
against them. The court granted summary judgment to both of-
ficers on the unconstitutional arrest claim but denied it to White
on the failure to intervene claim against him. This is White’s inter-
locutory appeal from the denial of summary judgment on that
claim, in which he contends that he is entitled to qualified immun-
1
ity.
II. The Qualified Immunity Issue
“We review de novo a district court’s denial of summary
judgment based on qualified immunity, applying the same legal
standards that governed the district court.” Feliciano v. City of
1
Nute has not attempted to appeal the denial of his motion for summary judg-
ment on the false arrest claim, but he has cross-appealed the denial of his sum-
mary judgment motion on liability on his failure to intervene claim. We do
not have interlocutory appellate jurisdiction to review that denial of summary
judgment in favor of Nute on liability grounds on the failure to intervene
claim standing alone. See Hartley v. Parnell, 193 F.3d 1263, 1272 (11th Cir. 1999);
see also Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50–51 (1995). While it’s
true that we may exercise our discretionary pendent appellate jurisdiction over
Nute’s cross-appeal to the extent it is intertwined with the qualified immun-
ity issue, we decline to do that here. See Hartley, 193 F.3d at 1272.
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 9 of 21
23-10273 Opinion of the Court 9
Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013). Summary judg-
ment is appropriate when the record evidence shows “that there is
no genuine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. The Discretionary Authority Requirement
To be eligible for qualified immunity, Officer White must
show that he “was acting within the scope of [his] discretionary
authority” at the time of the conduct giving rise to the claim. See
Powell v. Snook, 25 F.4th 912, 920 (11th Cir. 2022).
“When we assess whether an officer acted within his discre-
tionary authority, ‘we look to the general nature of the defendant’s
action, temporarily putting aside the fact that it may have been
committed for an unconstitutional purpose, in an unconstitutional
manner, to an unconstitutional extent, or under constitutionally in-
appropriate circumstances.’” Donald v. Norris, 131 F.4th 1255, 1263
(11th Cir. 2025) (quoting Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1266 (11th Cir. 2004)). The question is not “whether it
was within the defendant’s authority to commit the allegedly ille-
gal act.” Id. (quotation marks omitted). Instead, the question is
“whether the act complained of, if done for a proper purpose,
would be within, or reasonably related to, the outer perimeter of
an official’s discretionary duties.” Id. at 1264 (quotation marks
omitted). Or put a little differently, we are to determine “whether
the decision” that Officer White “faced produced choices of action
that were within the ‘arsenal of powers with which to accomplish
[his] goals.’” See id. (quoting Holloman, 370 F.3d at 1267).
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 10 of 21
10 Opinion of the Court 23-10273
Officer White asserts that he was “acting within his discre-
tionary officer authority as a police officer for the City of Rainsville
when he transported the plaintiff to the DeKalb County Jail.” Br. of
Appellant at 26 (emphasis added). But that is not the question. It
isn’t because the beating Officer White witnessed and his failure to
intervene didn’t occur while he was transporting Nute to the jail; it
happened after he arrived at the county jail with Nute. The rele-
vant inquiry is whether White was clothed with his full law en-
forcement powers and therefore acting within his discretionary au-
thority even after he left the City of Rainsville, when he arrived at
the Dekalb County jail in Fort Payne with Nute, and while he
2
watched the jailers there beat him. He was.
The question is what the scope of Officer White’s authority
as a law enforcement officer was while he was in the Dekalb
County Jail. That’s a question of state law. See Est. of Cummings v.
Davenport, 906 F.3d 934, 940 (11th Cir. 2018). Under Alabama law,
2
The answer to that question matters for another important reason as well.
Officer White’s principal theory in support of his view that he is entitled to
qualified immunity (on the clearly established law prong) is that “[n]o control-
ling precedent clearly established that [he] had the legal authority, much less a
constitutionally mandated obligation, to intervene outside his own police ju-
risdiction.” Reply Br. of Appellant at 18 (emphasis added). In White’s view,
as a City of Rainsville police officer in the DeKalb County Jail in Fort Payne,
he had no “legal authority” to intervene and attempt to stop an ongoing as-
sault happening 5 to 10 feet in front of him. But as we explain in the text,
above, as a matter of Alabama law, Nute is wrong about his legal authority
and duties not extending beyond the city limits of Rainsville. See Ala. Code §
15-10-1.
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 11 of 21
23-10273 Opinion of the Court 11
an officer of one city has the same legal authority to make an arrest
and exercise the other powers of a law enforcement officer within
“any incorporated city or town within the limits of the [same]
county” as he has in the city that employs him. See Ala. Code § 15-
10-1. Because the DeKalb County Jail in Fort Payne is located
within the same county as Rainsville, Officer White had the same
legal authority as a police officer while he was in that jail as he
would have in a jail or anywhere else in Rainsville. See id. That
means to the extent he responded (or failed to respond) to the jail-
ers’ assault, he did so within the realm of his “discretionary duties”
as a Rainsville police officer to attend to an arrestee in his presence.
It means that when White witnessed the ongoing assault in the
Dekalb County Jail he had “choices of action that were within the
arsenal of powers,” Donald v. Norris, 131 F.4th at 1263, that he had
as a law enforcement officer.
While that is good news for Officer White on the discretion-
ary authority gateway requirement to qualified immunity, it is not
good news for him on the merits of the qualified immunity issue.
B. The Clearly Established Law Requirement
Because Officer White’s actions (or inactions) were within
the scope of his discretionary authority, the burden shifts to Nute
to show that White is not entitled to qualified immunity. To do that
Nute must establish it was clearly established at the time he was
assaulted that White’s failure to intervene violated his Fourth
Amendment rights.
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 12 of 21
12 Opinion of the Court 23-10273
The clearly established law requirement can be met through
one of three ways:
(1) case law with indistinguishable facts clearly establishing
the constitutional right;
(2) a broad statement of principle within the Constitution,
statute, or case law that clearly establishes a constitutional
right; or
(3) conduct so egregious that a constitutional right was
clearly violated, even in the total absence of case law.
Gilmore v. Ga. Dep’t of Corr., 144 F.4th 1246, 1258 (11th Cir. 2025) (en
banc) (quotation marks omitted).
At the heart of the inquiry into whether Officer White vio-
lated clearly established law lies this question: “Did [he] have fair
warning when [he] engaged in the conduct giving rise to the claim
that the conduct was unconstitutional?” Cantu v. City of Dothan, 974
F.3d 1217, 1233 (11th Cir. 2020). If so, he is not entitled to qualified
immunity. See id. at 1235.
1. The General Duty to Intervene
We have long recognized that “an officer who is present at
the scene and who fails to take reasonable steps to protect the vic-
tim of another officer’s use of excessive force, can be held liable for
his nonfeasance.” See, e.g., Velazquez v. City of Hialeah, 484 F.3d 1340,
1341 (11th Cir. 2007) (quotation marks omitted); see also Helm v.
Rainbow City, 989 F.3d 1265, 1272 (11th Cir. 2021) (“The principle
that an officer must intervene when he or she witnesses unconsti-
tutional force has been clearly established in this Circuit for
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 13 of 21
23-10273 Opinion of the Court 13
decades.”); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). Of-
ficer White and Nute do not disagree about that.
They do disagree about whether it was clearly established in
March 2020 that an Alabama city police officer who was outside of
his city limits had a duty to take reasonable steps to intervene to
stop the unlawful use of force by officers employed by a different
law enforcement agency. Officer White contends that the law was
not clearly established that he had a duty to intervene in that sce-
nario; Nute disagrees. White also contends that, even if the law
was clearly established against him on that, it was not clearly estab-
lished that he had a reasonable opportunity to intervene in the cir-
cumstances of this case.
2. The Authority and Duty of an Alabama City Police Officer
Outside of His City Limits
We can quickly dispense with Officer White’s argument that
as a police officer of the City of Rainsville, Alabama, he had neither
the authority nor the duty to intervene to stop any unlawful use of
force he saw happening in Fort Payne, Alabama. We have already
explained that is an issue of Alabama law, which clearly provides
that a city police officer has the same law enforcement authority
and duty throughout his county as he has in the city that employs
him. See supra at 10–11. For present purposes, the ongoing assault
that White witnessed in the county jail in another city may as well
have been committed in the Rainsville city jail.
3. When the Excessive Force is Being Inflicted by Those Em-
ployed by a Different Government
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 14 of 21
14 Opinion of the Court 23-10273
Officer White points out that the jailers who actually in-
flicted the excessive force on Nute were not employed by the City
of Rainsville, as he was, but “by another law enforcement agency”
and, as a result, he had no authority over them. The premise of his
argument is that because he had no authority over the jailers using
excessive force, there can be no liability for failure to intervene to
stop them from doing so.
Officer White’s no authority/no liability position is contrary
to our precedent which clearly establishes that when “a police of-
ficer, whether supervisory or not, fails or refuses to intervene when a
constitutional violation such as an unprovoked beating takes place
in his presence, the officer is directly liable under Section
1983.” Byrd, 783 F.2d at 1007 (emphasis added). In Byrd the assault-
ing officer and the non-intervening officer were both simply an “Of-
ficer.” See id. at 1004–07. Neither had authority over the other. See
id. We’ve reiterated the statement in Byrd that a non-intervening
officer may be held liable “whether supervisory or not” at least
seven times since the Byrd decision was issued. See Ireland v. Prum-
mell, 53 F.4th 1274, 1301 (11th Cir. 2022); Helm v. Rainbow City, 989
F.3d 1265, 1272 (11th Cir. 2021); Sebastian v. Ortiz, 918 F.3d 1301,
1312 (11th Cir. 2019); Wilkerson v. Seymour, 736 F.3d 974, 979 (11th
Cir. 2013) (attributing the quoted language to Ensley v. Soper, 142
F.3d 1402, 1407 (11th Cir. 1998)); Skrtich v. Thornton, 280 F.3d 1295,
1301 (11th Cir. 2002); Priester v. City of Riviera Beach, 208 F.3d 919,
924 (11th Cir. 2000); Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir.
1998).
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 15 of 21
23-10273 Opinion of the Court 15
And we have reached the same result in a number of deci-
sions in the nearly forty years since our Byrd decision was issued.
In other failure-to-intervene cases we have held that qualified im-
munity did not apply even though the rank of the officers involved
was the same. See, e.g., Edwards v. Shanley, 666 F.3d 1289, 1298 (11th
Cir. 2012) (reversing grant of summary judgment based on quali-
fied immunity to the non-intervening “Officer” where another “Of-
ficer” allowed his police dog to bite the non-resisting plaintiff for
more than five minutes); Salvato v. Miley, 790 F.3d 1286, 1295, 1298
(11th Cir. 2015) (affirming denial of qualified immunity in a failure-
to-intervene lethal force case where the non-intervening officer and
the assaulting officer are both described as “Deputy”). Those deci-
sions show that the duty to intervene is not dependent on supervi-
sory authority.
Our clearly established law that a failure to intervene claim
does not require that the defendant officer had authority over the
officer inflicting excessive force makes good sense. As our Byrd
opinion explained:
[A] police officer may not ignore the duty imposed by
his office and fail to stop other officers who summar-
ily punish a third person in his presence or otherwise
within his knowledge. That responsibility . . . must ex-
ist as to nonsupervisory officers who are present at the scene
of such summary punishment, for to hold otherwise
would be to insulate nonsupervisory officers from liability
for reasonably foreseeable consequences of the neglect of
their duty to enforce the laws and preserve the peace.
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 16 of 21
16 Opinion of the Court 23-10273
Byrd, 783 F.2d at 1007 (quoting Byrd v. Brishke, 466 F.2d 6, 11 (7th
Cir. 1972)). The duty of an officer to intervene derives from the
Constitution, not from a chain of command.
Under our clearly established law, Officer White had a duty
to intervene when he watched three jailers beating for no apparent
reason a helpless man whom he had arrested and delivered into the
custody of those jailers. It matters not for qualified immunity pur-
poses that he had no supervisory authority over them.
4. A Reasonable Opportunity to Intervene
Officer White argues that he didn’t have a reasonable oppor-
tunity to intervene because the assault happened so quickly and he
was unarmed and outnumbered by three to one. He also argues
that he did intervene by calling his Rainsville Chief of Police from
his automobile after he left the jail in Fort Payne.
i. Sufficient Time to Intervene
We have recognized that there are circumstances where an
officer is entitled to qualified immunity because the infliction of
excessive force occurred too quickly for him to have had a reason-
able opportunity to intervene. For example, we affirmed the grant
of summary judgment based on qualified immunity to an officer
who stood nearby while another officer used pepper spray on the
plaintiff for half-a-second to three seconds. See Brown v. City of
Huntsville, 608 F.3d 724, 730–31, 740 n.25 (11th Cir. 2010). We rea-
soned: “Because the relevant events happened so quickly, the rec-
ord does not reflect any point at which [the non-intervening officer]
could have intervened to prevent [the other officer’s] use of
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 17 of 21
23-10273 Opinion of the Court 17
excessive force, especially pepper spray, on” the plaintiff. Id. at 740
n.25. But this is not a three-second case.
We also have decisions holding that there was an oppor-
tunity to intervene even though the use of excessive force did not
go on for an extended period of time. In one case we reversed the
grant of qualified immunity to a non-intervening officer who
watched another officer’s police dog bite a non-resisting plaintiff for
“as long as two minutes.” Priester, 208 F.3d at 925. The non-interven-
ing officer stood several feet away with his flashlight on the scene
of the dog attack and watched the entire event and was in voice
contact with the other officer. Id. We held the non-intervening
officer liable because he had observed the dog attack and had the
opportunity to intervene but didn’t. See id. In another case we af-
firmed the denial of qualified immunity to an officer who failed to
stop another one from tasing an arrestee twelve times. Salvato, 790
F.3d at 1289. The non-intervening officer had enough time to call
for medical assistance, get her flashlight off the ground, and take
the other officer’s handcuffs to restrain the arrestee. See id. at 1290.
She admitted that she was capable of telling the other officer to
stop, id. at 1291, and we concluded that she had an opportunity to
intervene but didn’t, id. at 1295.
The record in the present case, including the surveillance
video, shows that the assault took place for twenty-seven seconds
from the time it started in Officer White’s presence until he left the
scene. The record also shows that the assault continued for six-and-
a-half minutes after White had walked out of the door without
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 18 of 21
18 Opinion of the Court 23-10273
saying anything. That’s a total time of about seven minutes from
the start to finish of the beating.
Obviously, where excessive force is being inflicted in viola-
tion of the Constitution an officer witnessing it cannot voluntarily
leave the scene and then be let off the hook because he did not stay
there long enough to intervene. If he had not left so he wouldn’t
have to witness the assault (as a jury could find), Officer White
would have had seven minutes to intervene. Our precedent clearly
established that is long enough to provide an opportunity to inter-
vene, even if only verbally. See Priester, 208 F.3d at 925; Salvato, 790
F.3d at 1290–91, 1295; Edwards, 666 F.3d at 1298 (reversing grant of
summary judgment based on qualified immunity to the non-inter-
vening officer where he failed to intervene while another officer’s
police dog attacked a non-resisting arrestee for more than five
minutes).
ii. Unarmed and Outnumbered
Officer White argues that he was unarmed and outnum-
bered because there were three jailers and only one of him. That
does not excuse his failure to say something to the jailers in an at-
tempt to get them to stop physically abusing the helpless detainee.
Or to say something about it to someone else at the jail.
It had been clearly established for almost twenty years be-
fore the incident in this case that an officer has a duty to at least say
something in an attempt to stop a clear and continuing use of exces-
sive force on a helpless arrestee. See Priester, 208 F.3d at 922, 925,
927–28 (reversing the grant of qualified immunity to a sergeant
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 19 of 21
23-10273 Opinion of the Court 19
who failed to intervene, and noting that he reasonably could have
intervened by telling an officer to restrain his police dog that had
attacked the plaintiff for two minutes); see also Jackson v. City of At-
lanta, 97 F.4th 1343, 1362 (11th Cir. 2024) (citing Priester, 208 F.3d at
923–28). It is uncontested that Officer White did nothing at the jail.
Saying something might not have made any difference, but we will
never know because White left the jail without uttering a word
about the assault to anyone.
iii. The Phone Call
Finally, Officer White asserts that he actually did do some-
thing. He points to his post-deposition affidavit which says: “I then
left the jail and got in my vehicle and called my police chief and
told him what had happened. He told me he would talk to the jail
administrator.” White’s affidavit does not say when his chief of
police in Rainsville said he would talk with the jail administrator or
whether he ever did. In any event, this is a failure to intervene case,
not a failure to report case. Not only that but at the time he made
the phone call White was in his car outside the jail in Fort Payne
where the assault was taking place. He was in a better position to
urge the administrator of the jail there to stop it than his chief of
police was.
The facts are that Officer White delivered Nute into the cus-
tody of three jailers who almost immediately began physically
beating him only a few feet from White. He did nothing to stop
them. He did not even tell them to stop. Instead, he remained
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 20 of 21
20 Opinion of the Court 23-10273
silent as he witnessed the assault from just a few feet away and then
left as the assault continued.
C. The Holding
We hold that in March of 2020 it was clearly established law
that an arresting officer who delivers a helpless man to jail and
hands him over to jailers who immediately proceed to beat and
otherwise physically abuse the non-resisting man in the officer’s
presence violates the man’s Fourth Amendment rights if he re-
mains silent and leaves the scene of the assault while it is still ongo-
ing. This case does not present, and we do not address, whether
the officer’s duty to intervene would have been discharged if he
had urged the jailers to stop their unlawful conduct.
We also hold that the duty to intervene is not discharged by
a phone call to the officer’s supervisor where, viewing the evidence
in the light most favorable to the plaintiff, the supervisor was not
in a location or position where he could intervene in time to stop
the assault.
III. CONCLUSION
Officer White is not entitled to summary judgment on the
Fourth Amendment failure to intervene claim against him, and the
district court’s denial of summary judgment to him on that claim
is AFFIRMED.
We decline to exercise pendent appellate jurisdiction to re-
view Nute’s cross-appeal of the denial of his motion for summary
judgment on liability for his failure to intervene claim against
USCA11 Case: 23-10273 Document: 83-1 Date Filed: 09/16/2025 Page: 21 of 21
23-10273 Opinion of the Court 21
White, see supra at 8 n.1. Therefore, Nute’s cross-appeal is
3
DISMISSED.
3
Nute’s “Motion to Strike or Exclude from Consideration Portion of White’s
Reply Brief Making Argument and Addressing New Issues Never Previously
Raised or Argued” is DENIED as moot.