Texas AG Paxton opines that Texas peace officers do not have absolute duty to intervene to stop colleagues from using unreasonable force

Texas Attorney General Ken Paxton.

The Golden Hammer Staff Reports

Austin, December 9 – In response to an inquiry from State Representative James White, Republican of Hillister, Texas Attorney General Ken Paxton issued an opinion on Monday, December 7, 2020, that Texas peace officers do not have a civil or criminal duty to stop peace officer colleagues from using unreasonable or excessive force. Representative White cited in his letter requesting the opinion the policy approach of some police departments requiring “law enforcement officers to intervene to stop colleagues from using unreasonable force, i.e., violating a citizen’s constitutional and civil rights.”

Paxton noted the every peace officer has a duty under article 2.13 of the Texas Code of Criminal Procedure to preserve the peace within the officer’s jurisdiction. Nevertheless, Paxton explained in his opinion that statute does not necessarily impose an affirmative duty upon a law enforcement officer to intervene in every factual situation to prevent another officer from using excessive force.

Paxton wrote “we cannot conclude that there is an absolute duty for an officer to intervene under the circumstances you describe.”

Paxton concluded his opinion with the following statement:

“Article 2.13(a) of the Code of Criminal Procedure makes it ‘the duty of every peace officer to preserve the peace within the officer’s jurisdiction.’ Section 39.03 of the Penal Code makes it a criminal offense for a public servant to deny or impede ‘another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.’ You do not cite to any judicial opinion, and we find none, in which a court applied Code of Criminal Procedure article 2.13 or Penal Code section 39.03 to seek civil or criminal redress against a peace officer for failure to intervene. Thus, we cannot conclude that there is an absolute duty for an officer to intervene under the circumstances you describe.”

The Attorney General’s opinion clearly did not state that law enforcement officers may ignore the excessive use of force in all factual situations. Instead, police officers must exercise discretion and judgment in those situations when they are not directly involved in the action in question.

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