“Are you ready for the pop? Here comes the pop.”
Those were the last words that seventy-three-year-old Karen Garner of Loveland, Colorado heard before police officer Austin Hopp dislocated and fractured her shoulder in June 2020.
Garner, who suffers from both dementia and sensory aphasia, was arrested for stealing less than $14 worth of merchandise from a local Walmart. Body camera footage from the incident shows multiple Loveland police officers laughing and mocking Garner during the incident. Two of the responding officers can even be seen fist bumping each other over the way the arrest was handled.
More than a year later, the City of Loveland paid Garner’s family a $3 million settlement for her injuries. Three Loveland police officers were also dismissed for their roles in the arrest. One of the officers was sentenced to a five-year prison term for second-degree assault. Another officer is expected to plead guilty on August 5 for failing to intervene, which could carry a sixty-day jail sentence and five years of probation.
“[Garner] was one of the most vulnerable members of our community,” Sarah Schielke, Garner’s attorney, said during a press conference. “Her crime? She forgot to pay for $13.88 of merchandise from Walmart. $13.88 is the business interest that Loveland believed was worth inflicting this atrocity.”
“In the face of immediate potential harm, the only thing that may be able to stop an officer from using excessive force is another officer.”
Garner’s case highlights how varied the responses of police departments can be to “police bystanderism,” the term for officer failure to intervene when excessive force is used.
One of the most infamous examples of bystanderism was the murder of George Floyd in Minneapolis in May 2020. The images of officer Derek Chauvin kneeling on Floyd’s neck for more than nine minutes brought nationwide attention to this issue.
“In the face of immediate potential harm to the victim of violence, the only thing that may be able to stop an officer from using excessive force is another officer,” says Zachary D. Kaufman, an associate professor and co-director of the Criminal Justice Institute at the University of Houston’s school of law.
In response to Floyd’s murder, several states rewrote laws to make it easier to hold negligent officers accountable. Colorado, for instance, passed Senate Bill 217 just weeks after the nationwide protests over Floyd’s death began. The law requires police officers to intervene to “prevent or stop” other officers from using excessive physical force. It also requires local District Attorneys to prosecute cases where police officers fail to intervene. Illinois passed a similar bill in February 2021 that requires police officers to intervene when excessive force is used “without regard for chain of command” and prohibits state police departments from retaliating against officers who intervene.
In May 2022, the U.S. Department of Justice also updated its use of force policy to add an affirmative duty to intervene to stop other officers from “engaging in excessive force or any other use of force that violates the Constitution.”
According to Kaufmam, however, these laws and policy updates don’t go far enough. For example, officers who fail to intervene in the state of Colorado can only be charged with a misdemeanor offense. On top of that, the language surrounding retaliation under Illinois’s new law is vague and gives police departments leeway in how to enforce the provisions.
Kaufman argues, in a forthcoming article in the George Washington Law Review titled “Police Policing Police,” that police who fail to intervene in excessive force cases should, instead, be charged with a felony given the societal role of police to protect and serve the public.
“Officers who breached their duty to intervene—a duty that could prevent injuries and deaths—deserve serious punishment,” Kaufman writes.
To hold these officers accountable, Kaufman analyzed police bystander laws in fifteen states to develop a model statute. One of his recommendations is that departments appoint a special prosecutor to review “duty to intervene” cases rather than conduct an internal review, as there is “too much discretion among police officers about sanctioning each other,” he says.
He cites the failure of officers Alexander Kueng, Thomas Lane, and Tou Thao to intervene while Derek Chauvin killed Floyd in 2020 as one example of police discretion falling short of meaningful accountability. Kaufman believes the failure of the Minneapolis Police Department to punish these officers without external pressure shows that current “duty to intervene” laws are insufficient to regulate officer misconduct on their own.
“Police bystanderism is a big issue because it allows crimes in those contexts to be perpetrated when officers become bystanders,” Kaufman adds. “And the consequences can be fatal.”
Another feature of Kaufman’s model statute is that it lists specific measures to prevent officers who abide by the duty to intervene from being retaliated against by their co-workers or superiors. Nine of the states with “duty to intervene” laws on their books have anti-retaliation policies in place, but the other six do not.
Kaufman highlights specific acts of retaliation—such as demotion, denial of overtime or promotions, and intimidation or harassment—that are excluded from these laws. In Illinois, the law simply outlines what actions cannot be retaliated against, like reporting an officer’s failure to intervene or complying with an investigation.
“An officer’s duty to intervene is certainly no panacea for the misuse of force by officers, even if they were widely enacted,” Kaufman says. “But these laws would give officers guidance on proper conduct when their colleagues use force and they give prosecutors a tool to hold violators accountable.”