concurring in part and concurring in the judgment.
While I agree with the result reached by the majority and join much of its reasoning, I write separately to explain one point on which I disagree. As the Court explains, the jury’s verdict forecloses all of plaintiffs’ claims except those brought by Harper arising between the time he left the strip-search room and when he arrived at his segregation cell. Harper contends that during this last leg of his transfer, an unidentified officer or officers attacked him. I agree with the conclusion that Harper’s inability to point out which officers struck him defeats his excessive force claim because, absent evidence implicating particular defendants, the jury could have imposed liability in this case only by resort to speculation. Moreover, all three judges on this panel are in accord that Harper forfeited his failure to intervene claim by not timely raising it below. This provides a sufficient basis to affirm on all counts.
I respectfully disagree, however, with the majority’s alternate holding regarding Harper’s failure to intervene claim against Lt. Townley. The Court reaches the merits of this claim and concludes that it too fails as a matter of law because Harper does not know which officers beat him. The majority equates Harper’s failure to identify specific culprits with a finding that there was no underlying constitutional violation, and therefore no duty to intervene.
In my view, Harper’s inability to pin the excessive force claim on anyone in particular does not preclude the possibility that the attack occurred. To the contrary, given that we are reviewing the grant of judgment as a matter of law, we must accept as true Harper’s testimony that, while being moved from the strip-search room to his segregation cell, “officers went out of their way to run him head-first into whatever metal objects they came upon,” and that when he arrived at the cell, “one of the larger officers grabbed him by the neck and propelled him into the cell causing him to strike his head on the wall and lose consciousness.” See Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir.1999) (“Judgments as a matter of law are reviewed by appellate courts in the same fashion as summary judgment motions.”). If believed, this testimony shows that some officer or officers used excessive force in violation of Harper’s. Eighth Amendment rights. Moreover, prison records confirm that Lt. Townley helped escort Harper from the strip-search room to the segregation cell. While there is no evidence that Lt. Townley laid so much as a finger on *1070Harper, the lieutenant would have been duty-bound to attempt to prevent an attack by his fellow officers if he had reason to know that excessive force was being used and a realistic opportunity to prevent it. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.1994). Harper’s testimony combined with prison records showing that Lt. Townley was present at the time of the alleged beating establish a jury issue on this claim.
I believe that the majority’s reasoning creates at least some tension with our holding in Miller v. Smith, 220 F.3d 491 (7th Cir.2000). The plaintiff in Miller alleged that, after being mistaken for a fleeing armed felon, he was arrested by Indiana state troopers, handcuffed, and ordered to lie on the ground. While he laid there, one of two troopers — the plaintiff could not say which — kicked him in the back, stepped on his face, and yanked him around by his hair. Id. at 493. The plaintiff was able to identify specifically a third officer who looked on but did nothing to stop the attack. He sued all three officers for excessive use of force and failure to intervene. The district court granted summary judgment in favor of the defendants, reasoning that the plaintiffs inability to identify which officer attacked him precluded his failure to intervene claims against all of the officers. Id. at 495. We reversed: “If, as we are required to do at this point in the case, Miller’s allegations are taken as true, whichever officer was not directly responsible for the beating was idly standing by.” Id. As in Miller, the evidence viewed in the light most favorable to Harper establishes that he was brutalized and that an identified law enforcement officer who had a good chance to stop the attack did nothing. Miller’s inability to say who landed the offending blows did not defeat his failure to intervene claims; Harper’s similar lack of evidence should not be treated any differently. Nevertheless, because I agree that Harper forfeited this claim, I join the result reached by the majority.