Rochester Police Officer Ethan Paszko has been identified as failing to intervene when fellow officers pepper sprayed a 9 year old girl. Officer Paszko appeared towards the end of the video below right before a 9 year old girl was pepper sprayed by Officer Hannah Schneeberger (https://copblaster.com/blast/34415/hannah-schneeberger-idd-as-rochester-officer-pepper-spraying-child) and a yet to be identified male officer. We are not sure when Paszko arrived at the scene, but we do know that the name E. Paszko is visible on his uniform at about 10:50 shortly after he first appeared in the video. Paszko made his first appearance in the video at about 10:14 right before Schneeberger can be heard threatening the child by saying, "this is your last chance otherwise pepper spray is going in your eyeballs." We believe that Paszko was obviously close enough to hear Schneeberger threaten the child and was in a position to intervene.
Officers have a lawful duty to intervene when they witness fellow officers use excessive force or break the law. We believe that pepper spraying a child under any circumstances constitutes excessive force at a minimum and in this case constituted an unlawful battery on a child with a weapon. We believe that Officer Paszko had a duty to intervene when he heard Schneeberger threaten the girl with an unlawful battery. Instead he just stood back and watched with his fellow officers including Officer John Soures (https://copblaster.com/blast/34414/rochester-police-officer-john-soures-idd-at-pepper-spraying-of-child) and Officer Adam Bradstreet (https://copblaster.com/blast/34416/rochester-officer-adam-bradstreet-involved-in-pepper-spraying-girl). Their duty to intervene is identical to that of corrections officers in prison batteries as described in Smith v. Mensinger, 293 F.3d 641 (3rd Cir. 2002) "We hold that a corrections officer's failure to intervene in a beating can be the basis of liability...if the corrections officer had a reasonable opportunity to intervene and simply refused to do so. Furthermore, we hold that a corrections officer cannot escape liability by relying upon his inferior or non-supervisory rank vis-a-vis the other officers." (https://casetext.com/case/smith-v-mensinger). See also Buckner v. Hollins, 983 F.2d 119 (8th Cir. 1993) "Prison guard's failure to intervene to stop another officer's beating of naked, handcuffed, defenseless prisoner would constitute deliberate indifference sufficient to preclude summary judgment." (https://casetext.com/case/buckner-v-hollins). The only difference between Paszko and the subjects of the aforementioned cases is that he is a police officer and this battery took place outside of a correctional institution.
However, "For there to be a failure to intervene, it follows that 'there must exist an underlying constitutional violation.'" Santiago v. Fields, (https://casetext.com/case/santiago-v-fields) citing Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) (https://casetext.com/case/harper-v-albert). In this case we believe that Officer Schneeberger's threat to pepper spray the child constituted an assault under the reasonable apprehension of harm standard used in federal courts (https://copblaster.com/uploads/files/united-states-v-swallow.pdf). "To constitute an assault, an action must be either a willful attempt to inflict injury upon the person of another, or a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm." United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.1976)(https://copblaster.com/blast/25855/federal-officer-assaults-portland-protesters-with-laser-sight). Under that standard Officers Paszko, Soures, Bradsteet, and others failed to intervene while witnessing an assault. That assault being the unlawful threat to use pepper spray combined with the fact that such a threat would cause any objectively reasonable person apprehension of imminent bodily harm. That constitutional violation also constituted punishment without due process of law in violation of the Fourth and Fourteenth Amendments. Such conduct is ripe for a lawsuit under 42 U.S.C. 1983 which permits citizens to seek compensation and punitive damages for deprivation of civil rights under color of state law (https://www.law.cornell.edu/uscode/text/42/1983).
Officer Paszko has in interesting online footprint. In addition to his Open Oversight profile, he is listed on GovSalaries as having made $75,626 as a patrol officer last year (https://govsalaries.com/paszko-ethan-90977200). He has a LinkedIn account that appears to have been created many years ago when he was a student at Grove City College on which he lists an internship with the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF). Google searches reveal that Paszko grew up in the Rochester suburb of Churchville. He is 25 years old and his badge number is 2720.