                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-29-2004

Garbacik v. Janson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3149




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"Garbacik v. Janson" (2004). 2004 Decisions. Paper 320.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/320


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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-3149


                              MICHAEL GARBACIK;
                               LAWRENCE HOFF

                                           v.

                                 DAVID JANSON;
                               MICHAEL MINANNO,

                                                Appellants


                    Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 98-cv-00085)
                    District Judge: Honorable Thomas I. Vanaskie


                     Submitted Under Third Circuit LAR 34.1(a)
                                September 14, 2004

         Before: SCIRICA, Chief Judge, ALITO and AM BRO, Circuit Judges

                             (Filed September 29, 2004)




                                     OPINION


AM BRO, Circuit Judge

      David Janson and Michael Minanno appeal the decision of the District Court for
the Middle District of Pennsylvania denying their motion for a new trial. For the reasons

set out below, we affirm the decision of the District Court.

                                              I.

       Because we write solely for the benefit of the parties, we recite only those facts

relevant to the issue on appeal. Michael Garbacik brought excessive force claims against

Janson and Minanno, Pennsylvania State Police Troopers, pursuant to 42 U.S.C. § 1983.1

The incident giving rise to the suit occurred on October 26, 1997. The case was tried

before a jury on June 4-8, 2001.

       In his complaint, Garbacik asserted that one of the troopers used excessive force in

subduing him and that the other failed to intervene. It is not disputed that both officers

were present during the incident. Garbacik, however, testified that only one officer used

excessive force and could not identify whether that officer was Janson or Minanno.

       The special verdict questions initially submitted to the jury were the following:

       1. Do you find that plaintiff Michael Garbacik proved, by a preponderance
       of the evidence, that defendant David Janson used unreasonable force under
       the circumstances against Michael Garbacik?
       ...
       2. Do you find that plaintiff Michael Garbacik proved, by a preponderance
       of the evidence, that defendant Michael Minanno used unreasonable force
       under the circumstances against Michael Garbacik?
       ...
       3. Do you find that plaintiff Michael Garbacik proved by a preponderance
       of the evidence that defendant Michael Minanno failed to intervene when


       1
        A second individual, Lawrence Hoff, also filed suit against Janson and Minanno.
Hoff’s and Garbacik’s cases were tried together, but the jury returned a verdict in favor of
Janson and Minanno as to Hoff’s claims. He did not appeal.

                                              2
       defendant David Janson used unreasonable force against Michael Garbacik?
       ...
       4. Do you find that plaintiff Michael Garbacik proved by a preponderance
       of the evidence that defendant David Janson failed to intervene when
       defendant Michael Minanno used unreasonable force against Michael
       Garbacik?

       After the jury had begun deliberating, it came back with following question: “If

we don’t know which trooper [used excessive force], how do we vote?” In response, the

District Court revised the special verdict questions:

       1. Do you find that plaintiff Michael Garbacik proved, by a preponderance
       of the evidence, that he was subjected to the use of unreasonable force
       under the circumstances?
       ...
       2. If you answered Question 1 yes, do you find that plaintiff Michael
       Garbacik proved, by a preponderance of the evidence, that defendant
       Michael Minanno is responsible for the use of unreasonable force, either by
       his actual use of force or his failure to intervene?
       ...
       3. If you answered Question 1 yes, do you find that plaintiff Michael
       Garbacik proved, by a preponderance of the evidence, that defendant David
       Janson is responsible for the use of unreasonable force, either by his actual
       use of force or his failure to intervene?

The jury answered all three questions in the affirmative and awarded Garbacik $10,000 in

compensatory damages.

       Thereafter, Janson and Minanno filed post-trial motions pursuant to Rules 50(b)

and 59 of the Federal Rules of Civil Procedure for judgment as a matter of law and for a

new trial. The District Court ultimately denied these motions. Janson and Minanno

timely appealed. We have jurisdiction under 28 U.S.C. § 1291.




                                              3
                                              II.

       Janson and Minanno argue that, for qualified immunity purposes, it was not clearly

established at the time of the incident in this case whether § 1983 liability could lie for

failure to intervene. See Anderson v. Creighton, 483 U.S. 635, 639 (1987) (stating that

“whether an official protected by qualified immunity may be held personally liable for an

allegedly unlawful official action generally turns on the ‘objective legal reasonableness’

of the action, assessed in light of the legal rules that were ‘clearly established’ at the time

it was taken” (citations omitted)). Accordingly, they contend a new trial is warranted

because the revised special jury questions make it impossible to tell which of them

engaged in the excessive use of force.

       We “review [a] district court’s order ruling on a motion for a new trial for abuse of

discretion unless the court’s denial is based on the application of a legal precept, in which

case the standard of review is plenary.” Smith v. Holtz, 210 F.3d 186, 200 (3d Cir. 2000)

(citation omitted). Because the issue of § 1983 liability for failure to intervene is a legal

one, we exercise plenary review.

       In Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972), the plaintiff brought an

excessive force claim against, among others, two police officers. Similar to our case,

testimony established that only one of the two officer-defendants engaged in the alleged

excessive force violation. We stated that “[m]ere presence of a person, when an assault

and battery is committed by another, even though he mentally approves of it, but without

encouragement of it by word or sign, is not sufficient of itself to charge him as a

                                               4
participator in the assault.” Id. at 282. Based on Howell, Janson and Minanno contend

there was no clearly established duty to intervene in 1997, the time of the incident in our

case.

        We disagree. Several circuit courts had concluded prior to 1997 that the direct use

of excessive force is not required to impose liability under § 1983. See Fundiller v.

Cooper City, 777 F.2d 1436, 1441-1442 (11th Cir. 1985) (“It is not necessary that a police

officer actually participate in the use of excessive force in order to be held liable under

section 1983. Rather, an officer who is present at the scene and who fails to take

reasonable steps to protect the victim of another officer’s use of excessive force . . . can

be held liable for his nonfeasance.”); Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir. 1983)

(concluding that an officer has “a duty to prevent the use of . . . force, even if the officers

beating [the victim] were [the officer’s] superiors”); Ware v. Reed, 709 F.2d 345, 353

(5th Cir. 1983) (concluding that an “instruction on the defendant’s alleged acquiescence

in the unconstitutional conduct of other officers should have been given”); Bruner v.

Dunaway, 684 F.2d 422, 426 (6th Cir. 1982) (concluding “that it is not necessary, in order

to hold a police officer liable under § 1983, to demonstrate that the officer actively

participated in striking a plaintiff”); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)

(stating that “one who is given the badge of authority of a police officer may not ignore

the duty imposed by his office and fail to stop other officers who summarily punish a

third person in his presence or otherwise within his knowledge” and that this

responsibility exists “as to nonsupervisory officers who are present at the scene of such

                                               5
summary punishment”). And to the extent that Howell could have been interpreted as

adopting a contrary rule in the Third Circuit, we clarified in 1995 that liability will lie if

an officer “had knowledge of and acquiesced in” a § 1983 violation. Baker v. Monroe

Township, 50 F.3d 1186, 1190-1191 (3d Cir. 1995).

       Janson and Minanno argue, however, that Baker did not clearly establish a duty to

intervene on the part of nonsupervisory officers in the Third Circuit because the officer in

Baker was the highest ranking officer on the scene. They further contend that such a duty

was not clearly recognized until Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002).

       Once again, we disagree. In Smith, we stated: “Although the specific context of

our analysis [in Baker] only involved an officer’s liability for the actions of police

officers under his supervision, we do not interpret Baker as suggesting that liability for

failure to intervene is solely limited to supervisors or officers who outrank their offending

colleagues.” Id. at 651. Based on Smith and the other authorities cited, we conclude that

the duty to intervene on the part of nonsupervisory employees was clearly established at

the time of the incident in this case. Accordingly, we find no error with the revised

special jury questions.2

                                           *****

       In this context, we affirm the order of the District Court denying Janson’s and

Minanno’s motion for a new trial.


       2
         Because we conclude the revised jury questions were proper, we decline to reach
Garbacik’s additional argument that Janson and Minanno waived the right to raise their
qualified immunity argument on appeal.

                                               6
