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Case Law: The Police Are Not There For You

State and city governments - rather than the Federal authorities - are responsible for local law enforcement. So, only occasionally have Federal Courts ruled on the matter of police protection.

However, in 1856 the U.S. Supreme Court declared that local law enforcement had no duty to protect a particular person, but only a general duty to enforce the laws. [South v. Maryland, 59 U.S. (How.) 396, 15 L.Ed., 433 (856)]. The Fourteenth Amendment to the U.S. Constitution gives you no right to police protection. In 1982, the U.S. Court of Appeals, Seventh Circuit, held that:.. there is no Constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state to let the people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order." [Bowers v. DeVito, U.S. Court of Appeals, 7th Circuit, 686F.2d 616 (1982). See also Reiff v. City of Philadelphia, 471 F.Supp. 1262 (E.D.Pa. 1979)].

There are a few, very narrow exceptions. In 1983, the District of Columbia Court of Appeals remarked that: "In a civilized society, every citizen at least tacitly relies upon the constable for protection from crime. Hence, more than general reliance is needed to require the police to act on behalf of a particular individual. ... Liability is established, therefore, if police have specifically undertaken to protect a particular individual and the individual has specifically relied upon the undertaking.... Absent a special relationship, therefore, the police may not be held liable for failure to protect a particular individual from harm caused by criminal conduct. A special relationship exists if the police employ an individual in aid of law enforcement, but does not exist merely because an individual requests, or a police officer promises to provide protection." [Morgan v. District of Columbia, 468 A2d 1306 (D.C.App. 1983)]. As a result, the government - specifically, police forces - has no legal duty to help any given person, even one whose life is in imminent peril. The only exceptions are a person who:

•has helped the police force (e.g., as an informant or as a witness)

•can prove that he/she has specifically been promised protection and has, as a result, done things that he/she otherwise would not have done.

New York: Steady Threats From A Known Source Mean Nothing.

Even someone repeatedly threatened by another has no entitlement to police protection until they have been physically harmed. In 1959, Linda Riss, a New Yorker, was terrorized by an ex- boyfriend, who had a criminal record. Over several months, he repeatedly threatened her: "If I can't have you, no one else will have you, and when I get through with you, no one else will want you." She repeatedly sought police protection, explaining her request in detail. Nothing was done to help her. When he threatened her with immediate attack, she again urgently begged the New York City Police Department for help: "Completely distraught, she called the police, begging for help, but was refused." The next day, she was attacked: a "thug" hired by her persecutor threw lye (sodium hydroxide) in her face, She was blinded in one eye and her face was permanently scarred. The Court of Appeals of New York ruled that Linda Riss had no right to protection. The Court refused to create such a right because that would impose a crushing economic burden on the government. Only the legislature could create a right to protection:

"The amount of protection that may be provided is limited by the resources of the community and by a considered legislative executive decision as to how these resources may be deployed. For the courts to proclaim a new and general duty of protection ... even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits." Judge Keating dissented, bitterly noting that Linda Riss was victimized not only because she had relied upon the police to protect her, but because she obeyed New York laws that forbid her to own a weapon. Judge Keating wrote: "What makes the city's position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self defense. Thus, by a rather bitter irony she was required to rely for protection on the City of New York, which now denies all responsibility to her." [Riss v. City of N.Y., 293 N.Y. 2d 897 (1968)].

California: An Imminent Death Threat Means Nothing Even a person whose life is imminently in peril is not entitled to help. On 4 September 1972 Ruth Bunnell called the San Jose (California) police department to report that her estranged husband, Mack Bunnell, had telephoned her to tell her that he was coming to her house to kill her. In the previous year, the San Jose police, "had made at least 20 calls and responses to Mrs. Bunnell's home ...allegedly related to complaints of violent acts committed by Mack Bunnell on Mrs. Bunnell and her two daughters." Even so, Ruth Bunnell was told to call back only when Mack Bunnell arrived. Some 45 minutes later, Mack Bunnell arrived and stabbed Ruth Bunnell to death. A neighbor called the police, who then came to the murder scene. The California Court of Appeal held that any claim against the police department: "is barred by the provisions of the California Tort Claims Act, particularly section 845, which states: Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection.'" [Hartzer v. City of San Jose, App., 120 Cal.Rptr 5 (1975)].

Washington D.C.: Rape Is No Cause For Concern If direct peril to life does not entitle one to police protection, clearly imminent peril of rape merits no concern. Carolyn Warren, of Washington, D.C., called the police on 16 March 1975: two intruders had smashed the back door to her house and had attacked a female house mate. After calling the police, Warren and another house mate took refuge on a lower back roof of the building. The police went to the front door and knocked. Warren, afraid to go downstairs, could not answer. The police officers left without checking the back door.

Warren again called the police and was told they would respond. Assuming they had returned, Warren called out to the house mate, thus revealing her own location. The two intruders then rounded up all three women. "For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of (the intruders-ed.)."

The Superior Court of the District of Columbia held that: "the fundamental principle (is-ed.) that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.' ...The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists." In an accompanying memorandum, the Court explained that the term "special relationship" did not mean an oral promise to respond to a call for help. Rather, it involved the provision of help to the police force. [Warren v. District of Columbia, D.C.App., 444 A.2d 1 (1981)].

Illinois: School Teachers Get No Help Either On 20 April 1961, Josephine M. Keane, a teacher in the Chicago City Public Schools was assaulted and killed on school premises by a student enrolled in the school. Keane's family sued the City of Chicago, claiming that, "the City was negligent in failing to assign police protection to the school, although it knew or should have known that failure to provide this protection would result in harm to persons lawfully on the premises (because) it knew or should have known of the dangerous condition then existing at the school."

The Appeals Court affirmed the judgment of the Circuit Court of Cook County. Presiding Judge Burke of the Appeals Court held that, "Failure on the part of a municipality to exercise a government function does not, without more, expose the municipality to liability." Justice Burke went on to say that: "To hold that under the circumstances alleged in the complaint the City owed a special duty' to Mrs. Keane for the safety and well being of her person would impose an all but impossible burden upon the City, considering the numerous police, fire, housing and other laws, ordinances and regulations in force." [Keane v. City of Chicago, 98 Ill App2d 460 (1968)]. North Carolina: Helpless Children Don't Count

Even defenseless children merit no special care. On 3 June 1985 police tried to arrest a man and his "girlfriend," both of whom were wanted on multiple murder charges, and who were known to be heavily armed. The alleged murderers - along with the "girlfriend's two sons, aged nine and ten years - tried to flee in a car. As the police closed in after a running shoot out, the children were poisoned with cyanide and then shot in the head either by the mother or her "boy friend," one of whom then blew up the vehicle, killing both.

The boy's father - who had filed for divorce - sued the law enforcement agencies and officers for "wrongful death" of his sons. The North Carolina Court of Appeals held that: "the defendant law enforcement agencies and officers did not owe them (the children - ed.) any legal duty of care, the breach of which caused their injury and death ...Our law is that in the absence of a special relationship, such as exists when a victim is in custody or the police have promised to protect a particular person, law enforcement agencies and personnel have no duty to protect the individuals from the criminal acts of others; instead their duty is to preserve the peace and arrest law breakers for the protection of the general public. In this instance, a special relationship of the type stated did not exist ...Plaintiff's argument that the children's presence required defendants to delay (the) arrest until the children were elsewhere is incompatible with the duty that the law has long placed on law enforcement personnel to make the safety of the public their first concern; for permitting dangerous criminals to go unapprehended lest particular individuals be injured or killed would inevitably and necessarily endanger the public at large, a policy that the law cannot tolerate, much less foster." [Lynch v. N.C.Dept. of Justice, 376 S.E.2nd 247 (N.C.App. 1989)].

Virginia: Wrongful Release = Wrongful Death? Wrong! Marvin Mundy murdered Jack Marshall in Virginia. Mundy - convicted for carrying a concealed pistol - was sent to jail by a judge who expressed concern that Mundy, "might kill himself or a member of the public." Mundy was mistakenly released from jail 8 days later. Nine days later he was re-arrested on an unrelated charge. Five hours later, the same jailer and sheriff released him, apparently without checking to see if that was proper.

Three weeks later Mundy robbed and murdered Marshall. Marshall's widow sued, alleging negligence on the part of the sheriff and jailer, and asserting a violation of Jack Marshall's right to due process. The Court rejected the claim: ". . . a distinction must be drawn between a public duty owed by the official to the citizenry at large and a special duty owed to a specific identifiable person or class of persons. ... Only a violation of the latter duty will give rise to civil liability of the official. ... to hold a public official civilly liable for violating a duty owed to the public at large would subject the official to potential liability for every action he undertook and would not be in society's best interest." ... no special relationship existed that would create a common law duty on the defendants to protect the decedent (Marshall - ed.) from Mundy's criminal acts. Similarly, without a special relationship between the defendants and the decedent, no constitutional duty can arise under the Due Process Clause as codified by 42 U.S.C. Sec. 1983. Therefore, plaintiff's (Mrs. Marshall - ed) due process claim also must fall." [Marshall v. Winstonm, 389 S.E.2nd 902 (Va. 1990)].

Castle Rock v. Gonzales WASHINGTON – June, 2005 – The Supreme Court ruled that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court- issued protective order against a violent husband making an arrest mandatory for a violation.

The police didn’t respond to a woman’s pleas for help after her estranged husband violated a protective order by kidnaping their three young daughters, whom he eventually killed.

For hours on the night of June 22, 1999, Jessica Gonzales tried to get the Castle Rock police to find and arrest her estranged husband, Simon Gonzales, who was under a court order to stay 100 yards away from the house. He had taken the children, ages 7, 9 and 10, as they played outside, and he later called his wife to tell her that he had the girls at an amusement park in Denver.

Ms. Gonzales conveyed the information to the police, but they failed to act before Mr. Gonzales arrived at the police station hours later firing a gun, with the bodies of the girls in the back of his truck. The police killed him at the scene.

Gonzales filed suit in the United States District Court for the District of Colorado against Castle Rock, Colorado, its police department, and the three individual police officers with whom she had spoken under 42 U.S.C. §1983, claiming a Federally-protected property interest in enforcement of the restraining order and alleging “an official policy or custom of failing to respond properly to complaints of restraining order violations.” A motion to dismiss the case was granted, and Gonzales appealed to the 10th Circuit Court of Appeals. A panel of the United States Court of Appeals for the Tenth Circuit rejected Gonzales’s substantive due process claim but found a procedural due process claim; an en banc rehearing reached the same conclusion. The court also affirmed the finding that the three individual officers had qualified immunity and as such could not be sued.

The Supreme Court reversed the Tenth Circuit’s decision, reinstating the District Court’s order of dismissal. The Court’s majority opinion by Justice Antonin Scalia held that enforcement of the restraining order was not mandatory under Colorado law; were a mandate for enforcement to exist, it would not create an individual right to enforcement that could be considered a protected entitlement under the precedent of Board of Regents of State Colleges v. Roth; and even if there were a protected individual entitlement to enforcement of a restraining order, such entitlement would have no monetary value and hence would not count as property for the Due Process Clause. The gun-grabbers insist we should turn in our guns and rely on the police to protect us from crime. Yet the court continue to rule that the police are under no obligation to protect the public.

Davidson v. City of Westminster , 32 Cal.3d 197 According to the complaint, Yolanda Davidson was stabbed four times by Jack Blackmun while in a public laundromat. On three earlier occasions women had been stabbed at the same or nearby laundromats. The evening before Yolanda’s stabbing, two police officers had the laundromat under surveillance when another stabbing occurred; the police chased the suspect but failed to catch him. The next evening the officers had the laundromat under surveillance for the purpose of preventing assaults and apprehending the felon. The officers were aware of Yolanda’s presence in the laundromat throughout the surveillance. After about an hour of surveillance, they saw a man on the premises who closely resembled the attacker of the previous evening and, while watching him for 15 minutes, identified him as the likely perpetrator of that assault. As the officers watched, the suspect entered and left the laundromat “several times.” The officers did not warn Yolanda. Eventually she was stabbed.

Yolanda seeks to recover from the city and the officers on the basis of causes of action for intentional and negligent infliction of emotional distress and for negligent investigation, failure to protect, and failure to warn. The causes of action in negligence allege that special relationships existed between Yolanda and the officers as well as between the assailant and the officers, each of which imposed a duty of care on the officers.

Defendants demurred, contending (1) that no “special relationship” giving rise to a duty of care existed under the allegations of the complaint, and (2) that, in any event, the action was barred under the immunity provisions of Government Code section 845, which absolve a public entity or employee of liability for failure to provide adequate police protection. fn. 2 Without indicating the grounds for its ruling, the trial court sustained the demurrer. On this appeal, plaintiffs maintain that neither of the defendants’ arguments support the trial court judgment.

1982 -A husband and wife who were assaulted in a Laundromat while the assailant was under surveillance by officers, brought legal action against the city and the officers for intentional and negligent infliction of emotional distress and for negligent investigation, failure to protect and failure to warn.

The Supreme Court held that: (1) the mere fact that the officers had previously recognized the assailant from a distance as a potential assailant because of his resemblance to a person suspected of perpetrating a prior assault did not establish a “special relationship” between officers and assailant under which a duty would be imposed on officers to control assailant’s conduct; (2) factors consisting of officer’s prior recognition of assailant as likely perpetrator of previous assault and officer’s surveillance of assailant in laundromat in which victim was present did not give rise to special relationship between officers and victim so as to impose duty on officers to protect victim from assailant; and (3) victim could not maintain cause of action for intentional or reckless infliction of emotional distress, in view of fact that it was not alleged that officers failed to act for the purpose of causing emotional injury, and that in the absence of such an intent to injure, officer’s inaction was not extreme or outrageous conduct.

DeShaney v. Winnebago County The seminal case establishing the general rule that police have no duty under federal law to protect citizens is DeShaney v. Winnebago County Department of Social Services. Frequently these cases are based on an alleged "special relationship" between the injured party and the police. In DeShaney the injured party was a boy who was beaten and permanently injured by his father. He claimed a special relationship existed because local officials knew he was being abused, indeed they had "specifically proclaimed by word and deed [their] intention to protect him against that danger," but failed to remove him from his father's custody.

The Court in DeShaney held that no duty arose because of a "special relationship," concluding that Constitutional duties of care and protection only exist as to certain individuals, such as incarcerated prisoners, involuntarily committed mental patients and others restrained against their will and therefore unable to protect themselves. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf."

About a year later, the United States Court of Appeals interpreted DeShaney in the California case of Balistreri v. Pacifica Police Department. Ms. Balistreri, beaten and harassed by her estranged husband, alleged a "special relationship" existed between her and the Pacifica Police Department, to wit, they were duty-bound to protect her because there was a restraining order against her husband. The Court of Appeals, however, concluded that DeShaney limited the circumstances that would give rise to a "special relationship" to instances of custody. Because no such custody existed in Balistreri, the Pacifica Police had no duty to protect her, so when they failed to do so and she was injured they were not liable. A citizen injured because the police failed to protect her can only sue the State or local government in federal court if one of their officials violated a federal statutory or Constitutional right, and can only win such a suit if a "special relationship" can be shown to have existed, which DeShaney and its progeny make it very difficult to do. Moreover, Zinermon v. Burch very likely precludes Section 1983 liability for police agencies in these types of cases if there is a potential remedy via a State tort action.

Susman v. City of Los Angeles 269 Cal. App. 2d 803 Professor Van Alstyne has stated: “A public entity is not liable for injuries caused by ‘failing to enforce any law.’ Govt C § 818.2. public employees enjoy a similar immunity: They are not liable for injuries caused by ‘failure to enforce an enactment.’ Govt C § 821. ‘Law’ is broader in scope than ‘enactment,’ including not only statutes, ordinances, charter provisions, rules, and regulations, but also state and federal decisional law as far as applicable in California. Govt C §§ 810.6, 811. ... The immunity in § 818.2 prevails over statutory entity liabilities that do not clearly indicate otherwise. Govt C § 815(b), 815.2(b). ... For example, it supersedes the liability imposed by Govt C § 815.6 for failure to discharge a mandatory duty.” (Van Alstyne, California Government Tort Liability (Cont. Ed. Bar 1964) § 5.46, p. 154.)

An action was brought by several landowners against the City of Los Angeles and the State pleading eleven separate causes of action for damages arising out of the ‘Watts’ Riots’ of 1965. The Court of Appeal held that none of the allegations presented was sufficient to show any duty owed by any of the officials named as defendants to act to prevent or avoid the harm suffered by the plaintiffs.

Ne Casek v. City of Los Angeles, 233 Cal.App.2d 131, 43 Cal.Rptr. 294 (1965) In an action against police officers and city for personal injuries sustained by Kathryne Ne Casek when she was knocked down on a sidewalk by two suspects who had been arrested by the officers, the Court of Appeal held the amount of force or method used by a police officer in attempting to keep an arrested person or persons in custody is a discretionary act for purpose of application of doctrine of immunity of government officials from civil liability for their discretionary acts, and therefore Ms. Ne Casek who was injured by two escaped suspects who had been handcuffed together could not maintain an action against the arresting officers based on the officer's alleged negligence in using insufficient force to keep the prisoners in custody.

Antique Arts Corp. v. City of Torrence, 39 Cal.App.3d 588, 114 Cal.Rptr. 332 (1974) A silent burglar alarm installed on the premises of the store operated by the plaintiff was, during the course of a robbery by two armed men, activated at 3:32 p.m. and the alert message was relayed to the police department.

The dispatch message to the units in the field was at 3:43 p.m., and a police unit arrived at the scene of the robbery at 3:44 p.m. The delay in the transmission of the dispatch enabled the robbers to complete the robbery and escape with jewelry and merchandise in the amount of $49,000. The Court of Appeal held that Govt. Code section 846 provides for immunity if no police protection is provided; or, if police protection is provided, but that protection is not sufficient.. "The statutory scheme makes it clear that failure to provide adequate police protection will not result in governmental liability, nor will a public entity be liable for failure to arrest a person who is violating the law. The statutory scheme shows legislative intent to immunize the police function from tort liability from the inception of its exercise to the point of arrest, regardless of whether the action be labeled discretionary' or ministerial.'"