                  United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-3777
                        ___________________________

                                   Brian Farrington

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

      Officer Steven Smith; Officer Nicole Sipes; and Officer James Storey

                      lllllllllllllllllllll Defendants - Appellees

City of St. Paul; Sgt. James Falkowski; St. Paul City Attorney's Office; and Officer
                                  Jason Neubrand

                             lllllllllllllllllllll Defendants
                                     ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: October 16, 2012
                              Filed: February 22, 2013
                                   ____________

Before LOKEN, SMITH, and BENTON, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

      Brian Farrington brought a claim under 42 U.S.C. § 1983 for, inter alia,
excessive force against Officer Steven Todd Smith, Officer James Storey, and Officer
Nicole Sipes of the St. Paul, Minnesota Police Department. Farrington alleged that
Officer Smith used excessive force against him and that Officers Storey and Sipes
failed to intervene or protect Farrington from Officer Smith's use of excessive force.
The district court1 granted summary judgment to Officers Storey and Sipes on
Farrington's failure-to-protect claim. Following a trial on Farrington's excessive-force
claim, the jury returned a verdict in favor of Officer Smith. The district court
subsequently denied Farrington's motion for judgment as a matter of law; motion for
a new trial; and motion to vacate, modify, or amend the judgment. On appeal,
Farrington argues that the district court erroneously granted summary judgment to
Officers Storey and Sipes on his failure-to-protect claim. He also asserts that the
district court erred in denying him a new trial on his excessive-force claim because
the court (1) erroneously permitted evidence of the police officers' mental
impressions, (2) erroneously permitted evidence speculating that a cell phone could
be "weaponized," and (3) gave a faulty excessive-force jury instruction. We affirm.

                                    I. Background
       Farrington attended a party that became disruptive at an apartment in St. Paul,
Minnesota. Officer Smith responded to a 911 call from the party. Police dispatch
advised him of an altercation between two males. Anticipating the police's arrival,
Farrington waited in the street. When Officer Smith arrived at the apartment, he
called for backup due to the crowd's size. Farrington greeted Officer Smith and asked,
"What seems to be the problem, Officer?" Officer Smith responded, "What do you
think the problem is?" Officer Smith inquired whether the apartment belonged to
Farrington. Farrington explained that although his name was on the lease, he no
longer lived in the apartment. Officer Smith described Farrington's appearance as
"disheveled."



      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

                                          -2-
       Farrington, along with a former roommate, again approached Officer Smith,
who had been joined by Officer Sipes. Farrington, who was chewing tobacco, spit
"several times" on the ground in the officers' presence. Farrington maintains that he
spit on the street, while Officers Smith and Sipes assert that Farrington spit on the
sidewalk. Officer Smith claims that he told Farrington that "it's a violation of the city
ordinance, you can't spit on the sidewalk." According to Officer Smith, Farrington
ignored the warning and spit on the sidewalk "[a]t least three" more times. Officer
Sipes also contends that Farrington spit on the sidewalk three times in Officer Smith's
presence. After the third time, Officer Smith escorted Farrington to his squad car,
emptied his pockets, and placed Farrington in the back seat of the car. Officer Smith
did not handcuff Farrington. Officer Smith advised Farrington that he was being
detained, not arrested.

        Farrington's version of the facts differed substantially. Farrington claims that
Officer Smith said, "You do that one more f[***]ing time, I'm taking you out."
According to Farrington, he did not spit again after the warning. Instead, Farrington
testified that he responded, "What are you talking about? All I did was spit."
Farrington asserts that Officer Smith then "grabbed [Farrington's] arm and pulled
[him] in the back seat of the [squad] car."

       Despite searching Farrington, Officer Smith did not discover Farrington's cell
phone. While in the squad car, Farrington used his cell phone to call a friend. When
Officer Smith returned to the squad car, he observed that Farrington had something
in his hand. He noticed that Farrington was holding the object up to the left side of
his head and that his hand "was moving around." According to Officer Smith, he did
not know whether the object was a cell phone, a weapon, or a weaponized cell phone.
Officer Smith was concerned that the cell phone could have been a weapon because
he had read a training article through the St. Paul Police Department that specifically
referenced the dangers of cell phones being "weaponized," that is, being turned into
handguns or concealing razor blades.

                                          -3-
       Officer Smith testified that he opened the squad door with his left hand and
reached in with his right hand to retrieve the object from Farrington. He claims that
he gave Farrington a verbal warning before trying to grab the cell phone from
Farrington's hand. In response, Farrington leaned away from Officer Smith. Officer
Smith then reached for the cell phone with his right hand. Officer Smith claims that
Farrington then grabbed Officer Smith and pulled him into the back of the squad car.
According to Officer Smith, after Farrington pulled him into the squad car, he
"[s]tarted fighting for [his] life." He "punched [Farrington] as hard as [he] could"
"wherever [he] could hit." Officer Smith recalled hitting Farrington in the "[u]pper
torso" and possibly "the head." It was dark in the squad car, and Officer Smith could
not see. When Officer Smith started punching Farrington, Farrington fought back by
"[p]unching [Officer Smith] and reaching for stuff on [Officer Smith's] utility belt."
Officer Smith estimated that he punched Farrington "[a]round five" times. As Officer
Smith was punching Farrington, Officer Smith warned Farrington "to stop or [Officer
Smith] was go[ing] to spray [Farrington] with . . . Freeze Plus P." Thereafter, the back
passenger door was opened. Officer Smith could not recall whether Officer Storey or
Officer Sipes opened the door. Officer Smith was "able to get out." After the incident,
Farrington informed Officer Smith "that he had some brain surgery." Farrington
apologized for his conduct and asked Officer Smith "to give him a break." Officer
Smith agreed to issue tickets to Farrington and did not arrest him. Although Officer
Smith offered to transport Farrington to the emergency room, Farrington declined.2

       By contrast, Farrington testified that Officer Smith opened the passenger door
and "yanked" the phone away from Farrington. Farrington responded, "What the
hell?" He then pulled himself backwards, grabbing the phone with both hands.
According to Farrington, as Officer Smith grabbed the cell phone, he "almost
instantly" struck Farrington's head with a flashlight. Farrington maintains that Officer


      2
          Following the altercation, a friend took Farrington to the emergency room.

                                          -4-
Smith struck him with the flashlight at least twice on his left temple and above his left
eye; thereafter, Officer Smith used his fist to hit Farrington on the left side of his head
and face several more times. Farrington testified that he told Officer Smith to "[g]et
the f[**]k off me, I just had brain surgery . . . Get off of me, get off of me you are
going to f[***]ing kill me."

       During the scuffle over the cell phone, Officer Sipes stood on the opposite side
of the squad car. According to Officer Sipes, after Officer Smith reached in the squad
car, she

       saw Mr. Farrington back up and then all of a sudden [she] could see
       Officer Smith coming down on top of him and Officer Smith had a very
       shocked look and [she] could see that Mr. Farrington had a hold of him
       and he was being pulled down into the back seat.

Officer Sipes witnessed Officer Smith punch Farrington and heard Officer Smith tell
Farrington that "if [Farrington] didn't stop[,] [Officer Smith would] spray
[Farrington]."

       Officer Storey was also present during the altercation, approximately 15 to 20
feet away. He "determine[d] that there was a fight going on in the back of the squad
car." He observed that the squad car was moving from side to side, Officer Smith was
in the back seat, and Officer Smith's feet were hanging out. When Officer Storey
"noticed there was something wrong," he went to help. He opened the passenger door
and heard Officer Smith tell Farrington to "stop resisting or stop fighting, put your
hands behind your back." Officer Storey then reached into the car and grabbed
Farrington's arms to handcuff him.

       Based on this incident, Farrington brought a claim under 42 U.S.C. § 1983 for,
inter alia, excessive force against Officers Smith, Storey, and Sipes. Farrington


                                           -5-
alleged that Officer Smith used excessive force against him and that Officers Storey
and Sipes failed to intervene or protect Farrington from Officer Smith's use of
excessive force. According to Farrington, he suffered a concussion and soft-tissue
swelling on the left temporal region of his head as a result of Officer Smith's force.
The officers moved for summary judgment, and the district court granted summary
judgment to Officers Storey and Sipes on Farrington's failure-to-protect claim. As to
Officer Storey, the district court concluded that "no reasonable juror could conclude
that Officer Storey failed to protect Farrington" because no evidence existed "that the
fighting continued after Officer Storey approached the car or that Officer Storey
delayed in approaching the car." Farrington v. City of St. Paul, Civil No. 09–1838
(DWF/JSM), 2011 WL 843913, at *6 (D. Minn. Mar. 8, 2011) (unpublished). As to
Officer Sipes, the court found that "no reasonable juror could conclude that Officer
Sipes failed to protect Farrington" because no evidence existed "that the fighting
continued after Officer Sipes opened the back door or that she delayed in reacting to
the altercation." Id.

       The district court denied summary judgment to Officer Smith, determining
"that, viewing the evidence in the light most favorable to Farrington, a reasonable
juror could conclude that Officer Smith's use of force against Farrington was
unreasonable." Id. at *4.

      The case proceeded to trial on Farrington's excessive-force claim against
Officer Smith. The jury found in favor of Officer Smith. Farrington then moved for
judgment as a matter of law; for a new trial; and to vacate, modify, or amend the
judgment. The district court denied the motions. Farrington v. Smith, Civil No.
09–1838 (DWF/TNL), 2011 WL 5374443 (D. Minn. Nov. 4, 2011) (unpublished).

                                II. Discussion
    On appeal, Farrington argues that the district court erroneously granted
summary judgment to Officers Storey and Sipes on his failure-to-protect claim. He

                                         -6-
also asserts that the district court erred in denying him a new trial on his excessive-
force claim against Officer Smith. Farrington's failure-to-protect claim depends upon
the merits of his excessive-force claim. We thus begin our discussion with
Farrington's argument that the district court erred in denying him a new trial on his
excessive-force claim.

                               A. Motion for New Trial
       Farrington argues that the district court erroneously denied his motion for new
trial because the court (1) erroneously permitted evidence of the police officers'
mental impressions, (2) erroneously permitted evidence speculating that a cell phone
could be "weaponized," and (3) gave a faulty excessive-force jury instruction.

       "We review the district court's denial of a motion for a new trial for abuse of
discretion." Two Rivers Bank & Trust v. Atanasova, 686 F.3d 554, 563 (8th Cir.
2012).

        1. Evidence of Mental Impressions and "Weaponized" Cell Phones
      Prior to trial, Farrington moved to preclude Officer Smith from testifying about
his mental state. The district court ruled that Officer Smith could testify that he
punched Farrington as hard as he could after being pulled into the back of the squad
car because he feared for his life. Farrington also sought to exclude any evidence that
the cell phone that he had in the back seat of the squad car could have been
weaponized. Farrington argued that "what Smith subjectively thought could be
possible is not relevant. Just what he observed, and whether a reasonable officer
faced with the same observations would have used force." The district court denied
the motion.

       During trial, Officer Smith testified that he did not remove the cell phone from
Farrington before putting him into the back of the squad car because he "didn't know
[Farrington] had one." Upon Officer Smith's return to his squad car, he "saw

                                         -7-
[Farrington's] hand cuffed and it was up by his head and moving around." Officer
Smith "could see an object in [Farrington's] hand." Officer Smith considered this "a
huge problem" because he had previously frisked Farrington. Officer Smith "opened
the squad door" and said "[g]ive me that."

        Farrington's counsel inquired about Officer Smith's testimony that he did not
know what object was in Farrington's hand. Farrington's counsel asked, "Were you
implying it could be something dangerous?" Officer Smith replied, "Yes." When
Farrington's counsel asked whether it "could have been . . . a gun," Officer Smith
replied, "It could have been." Farrington's counsel also asked Officer Smith whether
he was "concerned that [Farrington] could have a cell phone that had been retrofitted
to be a weapon of some kind." Officer Smith responded, "When I noticed there was
a cell phone, that was a concern." Officer Smith noticed the cell phone when he was
reaching for the object and saying "give me that." Farrington's counsel also asked
Officer Smith whether he thought "there was a weapon" or whether he thought that
there "could have been a weapon." Officer Smith replied, "I had no idea what it was
that he had in his hand."

       Farrington's counsel questioned Officer Smith if he had ever "encountered a
cell phone that had been turned into a weapon," and Officer Smith explained that he
had seen pictures of them. When Farrington's counsel asked whether weaponized cell
phones were infrequent, Officer Smith replied, "It is getting more frequent."
Farrington's counsel then asked Officer Smith why he grabbed Farrington's cell
phone, and Officer Smith replied:

             Once I realized it was a cell phone, there are several reasons. A),
      it could have been weaponized, made into a gun, knife. You can conceal
      things in cell phones, razor blades. Being hit with a cell phone would
      hurt a lot more than being hit without a cell phone, like with a slap or a
      punch. People can use cell phones to call other people up to call them
      over to a scene, which I have had happened in the past, especially with

                                         -8-
      party calls. The cops are almost done. Let's resume the party. Let's get
      going again, or all meet at this location. Or another example is, I am
      sitting in the back seat of a squad car. Come let me out.

       When Farrington's counsel asked Officer Smith "[w]hat happened to the cell
phone" when Farrington grabbed Officer Smith's hand and started pulling him,
Officer Smith replied that he "ha[d] no idea" because he "was concerned about [his]
life."

       Officer Smith testified that during his struggle with Farrington, he felt tugging
on his duty belt, which he interpreted as Farrington reaching for things on his belt.
He felt this tugging on both sides of his belt. When Farrington's counsel asked Officer
Smith to describe Farrington's resistance, Officer Smith stated:

      I don't need to make it sound like he is an octopus, here, it is like
      mayhem. There is a fight. There is punching going on. It is not like—he
      is continually punching me in the chest like rapid punching, whatever.
      He is punching and reaching and it is just a bad situation.

      Farrington's counsel asked Officer Smith, "How did you feel? Tell us what the
emotions were when you fear for your life?" Officer Smith responded, "I was scared.
I was petrified." He also said that he was "[c]oncerned, worried."

     Thereafter, on direct examination, Officer Smith's counsel asked him to explain
why he felt justified in retrieving Farrington's cell phone. Officer Smith testified:

      Because at that point I did not know what was in his hand. And when I
      did realize that it was a cell phone, I still needed to confiscate it.
      Therefore, that is why I asked for it, give me that. And I reached for it
      immediately, because it needed to be recovered to find out.



                                          -9-
When Officer Smith's counsel asked him to "explain why or why not you believed
deadly force was involved at that time," Officer Smith replied:

      When I got into the fight with Mr. Farrington, at that point it is not about
      being fair. It turned to a point of, to me, life or death. If I would—if he
      would gain one of my tools, a weapon on my belt, there is no—there is
      no time-out, there is no "let's talk about this," it is over. And I felt very
      threatened. And we needed to solve this immediately and as fast as
      possible.

       Officer Smith testified that he had received, as part of his St. Paul Police
Department training, a 2003 bulletin entitled "For Your Safety: The Updated Book
of Concealed or Unusual Weapons." He confirmed that according to this training
bulletin, a cell phone could be turned into a stun gun, a hand gun, or used to conceal
razor blades. Officer Smith testified that he had reviewed many similar bulletins on
this issue. Likewise, Officer Sipes testified that her police training included issues
such as weaponization of cell phones. Officer Sipes reviewed the 2003 bulletin and
confirmed that it was a training bulletin that she read on the weaponization of cell
phones.

        On appeal, Farrington argues that the district court's permitting Officer Smith
to testify about his mental impressions prejudiced Farrington's excessive-force claim.
He asserts that "[o]fficer[s] are regularly permitted to testify that they took action to
be 'safe' or 'for the safety of others,' or that they were in 'fear.'" He claims that
plaintiffs, on the other hand, are prohibited from introducing evidence that the officer
had an ill-motive or other mental-impression evidence. According to Farrington,
under Graham v. Connor, 490 U.S. 386 (1989), the inquiry as to whether a police
officer's use of force was "excessive" is governed by the objective-reasonableness
standard; the question is whether the officer's actions were objectively reasonable in
light of the totality of the facts and circumstances surrounding him, without regard
to his underlying intent or motivation.

                                          -10-
       Based on Graham, Farrington contends that the district court should have
precluded testimony that Officer Smith (1) thought that Farrington was going to hurt
him, (2) thought that Farrington might go for his gun belt or that he might be doing
something in the area of his gun belt, (3) thought that he was going to be or could be
killed, (4) feared for his life, and (5) believed that Farrington could have a
"weaponized" cell phone. According to Farrington, the district court's ruling left him
no effective way to counter Officer Smith's subjective mental thought process.

       "A district court enjoys wide discretion in ruling on the admissibility of
proffered evidence, and evidentiary rulings should only be overturned if there was a
clear and prejudicial abuse of discretion." Quigley v. Winter, 598 F.3d 938, 946 (8th
Cir. 2010) (quotation and citation omitted).

      We hold that the district court did not abuse its discretion in admitting any of
the challenged evidence. First, much of Officer Smith's testimony regarding his
purported "mental state" was elicited by Farrington's counsel. For example, counsel
asked Officer Smith (1) whether Officer Smith was concerned that Farrington "could
have a cell phone that had been retrofitted to be a weapon of some kind," (2) whether
Officer Smith had ever encountered a weaponized cell phone, (3) why Officer Smith
grabbed Farrington's cell phone, (4) why Officer Smith was not concerned about
where the cell phone was during the altercation, and (5) what his emotions were when
he feared for his life.

       Second, all of the objected-to statements actually provide context for Officer
Smith's conduct. Officer's Smith's descriptions of why he reacted in the manner that
he did "form[ed] an integral part of [his] testimony" and "complete[d] the story" of
the altercation. United States v. De Oleo, 697 F.3d 338, 344 (6th Cir. 2012).

     Third, Officer Smith's concern about potential weaponization of the cell phone
was not based on speculation. Officer Smith actually saw Farrington with a cell

                                        -11-
phone. Officer Smith testified about his training and review of a 2003 bulletin on
weaponized cell phones and that he had seen pictures of them. Officer Smith sought
to retrieve Farrington's cell phone to determine to what extent, if any, it was
weaponized. Further, Officer Smith's testimony also explains how even a non-
weaponized cell phone posed a legitimate concern for officer safety. He testified that
a cell phone could be used as a weapon to increase the hitting power of a possible
assailant or to summon assistance.

       Finally, the district court's jury instruction on excessive force advised the jury
not to consider Officer Smith's "state of mind, intention, or motivation." See infra Part
II.A.2. "Jurors are presumed to follow the court's instructions." United States v.
Patterson, 684 F.3d 794, 799 (8th Cir. 2012).

                                2. Jury Instruction
      The parties submitted joint proposed jury instructions to the district court. But
Officer Smith did not agree to Requested Jury Instruction Number 16—"Excessive
Force." That requested instruction recommended the omission of certain language
contained in the Eighth Circuit Model Jury Instruction (Civil) 4.10. Requested Jury
Instruction Number 16 reads, in relevant part:

      whether a reasonable officer on the scene, without the benefit of 20/20
      hindsight, would have used such force under similar circumstances. The
      jury must consider that police officers are often forced to make
      judgments about the amount of force that is necessary in circumstances
      that are tense, uncertain and rapidly evolving. You must consider
      whether the officer's actions are reasonable in the light of the facts and
      circumstances confronting the officer, without regard to the officer's
      own state of mind, intention or motivation . . . .

Farrington argued that the italicized language



                                          -12-
      should not be contained in this instruction because it is Plaintiff's
      position that it misstates the law. On the one hand, the plaintiff has the
      down-side of not being able to show the bad motive of police, cannot
      show racism, sadism, "burnout" or other bad motive. Yet despite the law
      that the motive of officers is not to be considered, police are allowed to
      testify about being "afraid," or other things that they claim they thought
      were occurring, all of which are in the head of the officer. Plaintiffs
      cannot win with this instruction. Even the "rapidly evolving" part of the
      instruction gets at the mental impression of police. Yet plaintiffs cannot.
      So, Plaintiff cannot get inside the head of the officer, but the defense
      can. That instruction denies due process. If the "without regard to
      motive" clause is used, Plaintiff has offered some evidence to help
      balance the instruction.

       The district court did not omit the language as Farrington requested, and the
final jury instruction read, in relevant part:

             In determining whether such force, if any, was "excessive," you
      must consider such factors as the need for the application of force, the
      relationship between the need and the amount of force that was used, the
      extent of the injury inflicted, and whether a reasonable officer on the
      scene, without the benefit of 20/20 hindsight, would have used such
      force under similar circumstances. You, the jury, must consider whether
      Defendant's actions are reasonable in light of the facts and
      circumstances confronting the officer, without regard to the officer's
      own state of mind, intention, or motivation.

      In his post-trial motion, Farrington argued that the district court erroneously
gave the jury the model jury instruction, thus entitling him to a new trial. He asserted
that

      [t]he Model 8th Circuit jury instruction, which includes the language
      "you must consider that police are often asked to make decisions in
      tense and rapidly evolving situations" puts a thumb on the scale of
      justice, essentially telling the jury to resolve all doubts in favor of

                                         -13-
       police. That one instruction overwhelms all other instructions provide[d]
       to the jury. This makes it nearly impossible for a plaintiff to meet his
       burden.

Farrington also contended that the instruction tells the jury that "the police are doing
their job," which he claimed was not factually accurate. Additionally, he stated that
the instruction "does not leave the possibility that the police officer is: i) motivated
by sadism (or anger, or hate); or ii) likes to create force situations so he can punch
members of the public." And, he argued that "allowing police to discuss their positive
subjective motivation (I was afraid, I was trying to protect the public), while
prohibiting plaintiffs from discussing the negative motivation of the officer, prevents
the plaintiff from winning the case."

        In denying Farrington's motion for a new trial, the district court pointed out that
it did not give to the jury "the portion of the instruction from Model Jury Instruction
§ 4.10 that [Farrington] f[ound] most objectionable"—the "rapidly evolving situation"
language. Farrington, 2011 WL 5374443, at *2. The court determined that the given
instruction was consistent with Graham. Id. at *3.

       On appeal, Farrington argues that although the instruction tells the jury not to
use the superior vision of hindsight in its evaluation, such instruction was ineffective
because "the district court permitted . . . [O]fficer Smith to testify from his own
hindsight 20/20—what he now, looking back, subjectively thought or felt about the
incident." According to Farrington, if such evidence is introduced, an additional
instruction is needed.3


      3
       In Requested Jury Instruction Number 16, Farrington proposed that the district
court instruct the jury that he had no duty to prove that Officer Smith had a bad
motive and that if the jury found that Officer Smith had a bad motive, then it could
consider the bad motive in addressing whether the use of force under the
circumstances was excessive.

                                           -14-
             In reviewing jury instructions, we examine "whether the
      instructions, taken as a whole and viewed in the light of the evidence
      and applicable law, fairly and adequately submitted the issues in the
      case to the jury." Wheeling Pittsburgh Steel Corp. v. Beelman River
      Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001) (quoting White v.
      Honeywell, Inc., 141 F.3d 1270, 1278 (8th Cir. 1998) (internal quotation
      marks omitted)). We afford the district court "broad discretion in
      instructing the jury." Ernster v. Luxco, Inc., 596 F.3d 1000, 1004–05
      (8th Cir. 2010).

Bady v. Murphy-Kjos, 628 F.3d 1000, 1004 (8th Cir. 2011). District courts are not
bound by the model jury instructions, but those instructions are "helpful suggestions
to assist the district courts." Id. (quotation and citation omitted). "Jurors are presumed
to follow the court's instructions." Patterson, 684 F.3d at 799.

       We hold that the district court did not err in giving the model jury instruction
because "the excessive force instruction [is] well-supported by law and appropriate
given the evidence introduced at trial." Bady, 628 F.3d at 1004 (quotations omitted)
(rejecting appellant's argument that "the excessive force instruction 'is a finger on the
scale of justice in favor of police'" and that "district courts should receive more
latitude in crafting excessive force instructions, particularly with respect to including
the phrase 'rapidly evolving' derived from Graham"); see also Billingsley v. City of
Omaha, 277 F.3d 990, 995–97 (8th Cir. 2002) (approving the submission of Eighth
Circuit Model Jury Instruction (Civil) 4.10 for jury determination of an excessive-
force claim under the Fourth Amendment's reasonableness standard).

                          B. Failure-To-Protect Claim
     Farrington also asks this court to reverse the district court's grant of summary
judgment to Officers Storey and Sipes on Farrington's failure-to-protect claim.



                                          -15-
According to Farrington, although both officers were present when Officer Smith
"beat" Farrington, neither officer attempted to help him.

       Our conclusion that the district court did not err in denying Farrington's motion
for a new trial on his excessive-force claim is dispositive of Farrington's failure-to-
protect claim against Officers Storey and Sipes. To prove that Officers Storey and
Sipes failed to intervene or protect Farrington, Farrington "must show, inter alia, that
the officer observed or had reason to know that excessive force would be or was
being used." Hicks v. Norwood, 640 F.3d 839, 843 (8th Cir. 2011) (quotation and
citation omitted). "Thus, [the jury's determination] that [Officer Smith] did not use
excessive force is fatal to [Farrington's] claims that the remaining defendants
unconstitutionally failed to intervene." Id.4

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




      4
       Farrington also contends that "it was extremely difficult" for him to prevail
against Officer Smith at trial on the excessive-force claim because Officers Storey
and Sipes "were free to testify to support [Officer] Smith's story, without Farrington
being able to show the jury that they, too, had something to lose by conforming their
testimony to [Officer] Smith's [testimony]." Our review of the record reveals that
Officers Storey and Sipes testified consistently with their deposition testimony. Thus,
they did not alter or conform their testimony to Officer Smith's testimony at trial.
Instead, they testified consistently with their deposition testimony, which they gave
when they were named defendants. Ultimately, "[t]he jury was entitled to make a
credibility determination, and it chose to believe [Officers Smith, Storey, and Sipes]."
Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 964 (8th Cir. 2012).

                                         -16-
