Newsgroups: alt.fan.rush-limbaugh,talk.politics.guns,talk.politics.misc
From: [s t ratos] at [netcom.com] (Steve Fischer)
Subject: Reminder: Police had NO duty to protect you
Date: Wed, 26 Oct 1994 17:56:45 GMT
This is file /users/ro/tmi/NoDuty from ftp.crl.com:
SELF-RELIANCE FOR SELF-DEFENSE . . .
. . . POLICE PROTECTION ISN'T ENOUGH!
Peter Alan Kasler, J.D.
All our lives, especially during our younger years, we hear that the
police are there to protect us. From the very first kindergarten-class
visit of "Officer Friendly" to the very last time we saw a police
car -- most of which have "To Protect and Serve" emblazoned on
their doors -- we're encouraged to give ourselves over to police
protection. But it hasn't always been that way.
Before the mid-1800s, American and British citizens -- even in large
cities -- were expected to protect themselves and each other. Indeed,
they were legally required to pursue and attempt to apprehend criminals.
The notion of a police force in those days was abhorrent in England and
America, where liberals viewed it as a form of the dreaded "standing army."
England's first police force, in London, was not instituted until
1827. The first such forces in America followed in New York, Boston, and
Philadelphia during the period between 1835 and 1845. They were
established only to augment citizen self-protection. It was never
intended that they act affirmatively, prior to or during criminal
activity or violence against individual citizens. Their duty was to
protect society as a whole by deterrence; i.e., by systematically
patrolling, detecting and apprehending criminals after the occurrence of
crimes. There was no thought of police displacing the citizens' right of
self-protection. Nor could they, even if it were intended.
Professor Don B. Kates, Jr., eminent civil rights lawyer and
criminologist, states: "Even if all 500,000 American police officers
were assigned to patrol, they could not protect 240 million citizens
from upwards of 10 million criminals who enjoy the luxury of
deciding when and where to strike. But we have nothing like
500,000 patrol officers; to determine how many police are actually
available for any one shift, we must divide the 500,000 by four
(three shifts per day, plus officers who have days off, are on sick
leave, etc.). The resulting number must be cut in half to account
for officers assigned to investigations, juvenile, records, laboratory,
traffic, etc., rather than patrol." (1)
Such facts are underscored by the practical reality of today's
society. Police and Sheriff's departments are feeling the financial
exigencies of our times, and that translates directly to a reduction
of services, e.g., even less protection. For example, one moderate
day recently (September 23, 1991) the San Francisco Police Department
"dropped" (2) 157 calls to its 911 facility, and about 1,000 calls to its
general telephone number (415-553-0123). An SFPD dispatcher said that 150
dropped 911 calls, and 1,000 dropped general number calls, are about
average on any given day.(3)
It is, therefore, a fact of law and of practical necessity that
individuals are responsible for their own personal safety, and that
of their loved ones. Police protection must be recognized for what
it is: only an auxiliary general deterrent.
Because the police have no general duty to protect individuals,
judicial remedies are not available for their failure to protect. In
other words, if someone is injured because they expected but did
not receive police protection, they cannot recover damages by
suing (except in very special cases, explained below). Despite a long
history of such failed attempts, however, many, people persist in
believing the police are obligated to protect them, attempt to recover
when no protection was forthcoming, and are emotionally demoralized when
the recovery fails. Legal annals abound with such cases.
Warren v. District of Columbia is one of the leading cases of this
type. Two women were upstairs in a townhouse when they heard
their roommate, a third woman, being attacked downstairs by
intruders. They phoned the police several times and were
assured that officers were on the way. After about 30 minutes,
when their roommate's screams had stopped, they assumed the
police had finally arrived. When the two women went downstairs
they saw that in fact the police never came, but the intruders
were still there. As the Warren court graphically states in the
opinion: "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 their
attackers."
The three women sued the District of Columbia for failing to
protect them, but D.C.'s highest court exonerated the District and
its police, saying that it is a "fundamental principle of American
law that a government and its agents are under no general duty to
provide public services, such as police protection, to any individual
citizen."(4) There are many similar cases with results to the same
effect.(5)
In the Warren case the injured parties sued the District of
Columbia under its own laws for failing to protect them. Most
often such cases are brought in state (or, in the case of Warren,
D.C.) courts for violation of state statutes, because federal law
pertaining to these matters is even more onerous. But when
someone does sue under federal law, it is nearly always for
violation of 42 U.S.C. 1983 (often inaccurately referred to as "the
civil rights act"). Section 1983 claims are brought against
government officials for allegedly violating the injured parties'
federal statutory or Constitutional rights.
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.(6) 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,"(7) 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."(8)
About a year later, the United States Court of Appeals interpreted
DeShaney in the California case of Balistreri v. Pacifica Police
Department.(9) 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(10) 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.
Many states, however, have specifically precluded such claims,
barring lawsuits against State or local officials for failure to
protect, by enacting statutes such as California's Government
Code, Sections 821, 845, and 846 which state, in part: "Neither a
public entity or a public employee [may be sued] for failure to
provide adequate police protection or service, failure to prevent
the commission of crimes and failure to apprehend criminals."
It is painfully clear that the police cannot be relied upon to protect
us. Thus far we've seen that they have no duty to do so. And we've
also seen that even if they did have a duty to protect us, practically
speaking they could not fulfill it with sufficient certainty that we
would want to bet our lives on it.
Now it's time to take off the gloves, so to speak, and get down to
reality. So the police aren't duty-bound to protect us, and they
can't be expected to protect us even if they want to. Does that
mean that they won't protect us if they have the opportunity?
One of the leading cases on this point dates way back into the
1950s.(11) A certain Ms. Riss was being harassed by a former
boyfriend, in a familiar pattern of increasingly violent threats. She
went to the police for help many times, but was always rebuffed.
Desperate because she could not get police protection, she applied
for a gun permit, but was refused that as well. On the eve of her
engagement party she and her mother went to the police one last
time pleading for protection against what they were certain was a
serious and dangerous threat. And one last time the police
refused. As she was leaving the party, her former boyfriend threw
acid in her face, blinding and permanently disfiguring her.
Her case against the City of New York for failing to protect her was,
not surprisingly, unsuccessful. The lone dissenting justice of New
York's high court wrote in his opinion: "What makes the City's
position [denying any obligation to protect the woman]
particularly difficult to understand is that, in conformity to the
dictates of the law [she] 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."(12)
Instances of police refusing to protect someone in grave danger,
who is urgently requesting help, are becoming disturbingly more
common. In 1988, Lisa Bianco's violently abusive husband was
finally in jail for beating and kidnapping her, after having
victimized her for years. Ms. Bianco was somewhat comforted by
the facts that he was supposedly serving a seven-year sentence,
and she had been promised by the authorities that she'd be
notified well in advance of his release. Nevertheless, after
being in only a short time, he was temporarily released on an
eight-hour pass, and she wasn't notified. He went directly to her
house and, in front of their 6- and 10-year old daughters, beat Lisa
Bianco to death.
In 1989, in a suburb of Los Angeles, Maria Navarro called the L. A.
County Sheriff's 911 emergency line asking for help. It was her
birthday and there was a party at her house, but her estranged
husband, against whom she had had a restraining order, said he
was coming over to kill her. She believed him, but got no sympathy
from the 911 dispatcher, who said: "What do you want us to do
lady, send a car to sit outside your house?" Less than half an hour
after Maria hung up in frustration, one of her guests called the
same 911 line and informed the dispatcher that the husband was
there and had already killed Maria and one other guest. Before the
cops arrived, he had killed another.
But certainly no cop would stand by and do nothing while
someone was being violently victimized. Or would they? In
Freeman v. Ferguson(13) a police chief directed his officers not to
enforce a restraining order against a woman's estranged husband
because the man was a friend of the chief's. The man subsequently
killed the woman and her daughter. Perhaps such a specific case is
an anomaly, but more instances of general abuses aren't at all rare.
In one such typical case(14) , a woman and her son were harassed,
threatened and assaulted by her estranged husband, all in
violation of his probation and a restraining order. Despite
numerous requests for police protection, the police did nothing
because "the police department used an administrative
classification that resulted in police protection being fully
provided to persons abused by someone with whom the victim has
no domestic relationship, but less protection when the victim is
either: 1) a woman abused or assaulted by a spouse or boyfriend,
or 2) a child abused by a father or stepfather."(15)
In a much more recent case,(16) a woman claimed she was injured
because the police refused to make an arrest following a domestic
violence call. She claimed their refusal to arrest was due to a city
policy of gender-based discrimination. In that case the U. S. District
Court of Appeals for the Fifth Circuit held that "no constitutional
violation [occurred] when the most that can be said of the police is
that they stood by and did nothing. . ."(17)
Do the police really harbor such indifference to the plight of
certain victims? To answer that, let's leave the somewhat aloof and
dispassionate world of legal precedent and move into the more
easily understood "real world." I can state from considerable
personal experience, unequivocally, that these things do happen.
As to why they occur, I can offer only my opinion based on that
experience and on additional research into the dark and murky
areas of criminal sociopathy and police abuse.
One client of my partner's and mine had a restraining order
against her violently abusive estranged husband. He had recently
beaten her so savagely a metal plate had to be implanted in her
jaw. Over and over he violated the court order, sometimes thirty
times daily. He repeatedly threatened to kill her and those of use
helping her. But the cops refused to arrest him for violating the
order, even though they'd witnessed him doing so more than once.
They danced around all over the place trying to explain why they
wouldn't enforce the order, including inventing numerous absurd
excuses about having lost her file (a common tactic in these cases).
It finally came to light that there was a departmental order to not
arrest anyone in that county for violating a protective order
because the county had recently been sued by an irate (and
wealthy) domestic violence arrestee.
In another of our cases, when Peggi and I served the man with
restraining orders (something we're often required to do because
various law enforcement agencies can't or won't do it), he
threatened there and then to kill our client. Due to the vigorous
nature of the threat, we went immediately to the police department to get
it on file in case he attempted to carry it out during the few days
before the upcoming court appearance. We spent hours filing the report,
but two days later when our client went to the police department for a
copy to take to court, she was told there was no record of her, her
restraining order, her case, or our report.
She called in a panic. Without that report it would be more
difficult securing a permanent restraining order against him. I
paid an immediate visit to the chief of that department. We
discussed the situation and I suggested various options, including
dragging the officer to whom Peggi and I had given the detailed
death threat report into court to explain under oath how it had
gotten lost. In mere moments, an internal affairs officer was
assigned to investigate and, while I waited, they miraculously
produced the file and our report. I was even telephoned later and
offered an effusive apology by various members of the department.
It is true that in the real world, law enforcement authorities very
often do perpetuate the victimization. It is also true that each of us
is the only person upon whom we can absolutely rely to avoid
victimization. If our client in the last annecdote hadn't taken
responsibility for her own fate, she might never have survived the
ordeal. But she had sufficient resolve to fend for herself. Realizing
the police couldn't or wouldn't help her, she contacted us. Then,
when the police tried their bureaucratic shuffle on her, she called
me. But for her determination to be a victim no more, and to take
responsibility for her own destiny, she might have joined the
countless others victimized first by criminals, then by the very
system they expect will protect them.
Remember, even if the police were obligated to protect us (which
they aren't), or even if they tried to protect us (which they often
don't, a fact brought home to millions nationwide as they watched
in horror the recent events in Los Angeles), most often there
wouldn't be time enough for them to do it. It's about time that we
came to grips with that, and resolved never to abdicate
responsibility for our personal safety, and that of our loved ones,
to anyone else.
1) Guns, Murders, and the Constitution (Pacific Research Institute
for Public Policy, 1990).
2) A "dropped" call in police dispatcher parlance is one that isn't
handled for a variety of reasons, such as because it goes
unanswered. Calls from people who get tired of waiting on hold
and hang up are classified as "drops" as well.
3) KGO Radio (Newstalk 810), 6:00 PM report, 09-26-91, and a
subsequent personal interview with the reporter, Bernie Ward.
4) Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
5) See, for example, Riss v. City of New York, 22 N.Y.2d 579, 293
NYS2d 897, 240 N.E.2d 860 (N.Y. Ct. of Ap. 1958); Keane v. City of
Chicago, 98 Ill. App.2d 460, 240 N.E.2d 321 (1968); Morgan v.
District of Columbia, 468 A.2d 1306 (D.C. Ct. of Ap. 1983);
Calogrides v. City of Mobile, 475 So.2d 560 (S.Ct. A;a. 1985); Morris
v. Musser, 478 A.2d 937 (1984); Davidson v. City of Westminster, 32
C.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894 (S.Ct. Cal. 1982);
Chapman v. City of Philadelphia, 434 A.2d 753 (Sup.Ct. Penn. 1981);
Weutrich v. Delia, 155 N.J. Super 324, 326, 382 A.2d 929, 930 1978);
Sapp v. City of Tallahassee, 348 So.2d 363 (Fla.Ct. of Ap. 1977);
Simpson's Food Fair v. Evansville, 272 N.E. 2d 871 (Ind.Ct. of Ap.);
Silver v. City of Minneapolis, 170 N.W.2d 206 (S.Ct. Minn. 1969) and
Bowers v. DeVito, 686 F.2d 61 (7th Cir. 1982).
6) 109 S.Ct. 998 (1989).
7) "Domestic Violence -- When Do Police Have a Constitutional Duty
to Protect?" Special Agent Daniel L. Schofield, S.J.D., FBI Law
Enforcement Bulletin January, 1991.
8) DeShaney v. Winnebago County Department of Social Services,
109 S.Ct. 998 (1989) at 1006.
9) 901 F.2d 696 (9th Cir. 1990).
10) 110 S.Ct. 975, 984 (1990).
11) Riss v. City of New York, 22 N.Y.2d 579, 293 NYS2d 897, 240
N.E.2d 860 (N.Y. Ct. of Ap. 1958.
12) Riss, Ibid.
13) 911 F.2d52 (8th Cir. 1990).
14) Thurman v. City of Torrington, 595 F.Supp.1521 (D.Conn.
1984).
15) "Domestic Violence -- When Do Police Have a Constitutional
Duty to Protect?" Special Agent Daniel L. Schofield, S.J.D., FBI Law
Enforcement Bulletin January, 1991.
16) McKee v. City of Rockwall, Texas, 877 F.2d409 (5th Cir. 1989),
cert. denied, 110 S.Ct.727 (1990).
17) McKee v. City of Rockwall, Texas, Id. at 413.
COPYRIGHT (C) 1993 -- Peter Alan Kasler -- All Rights Reserved
--
I don't tell Netcom how to run their business and they don't tell me
what to think or write ....... Steve Fischer/Atlanta, GA
=====================================================================
"You do not examine legislation in the light of the benefits it will
convey if properly administered, but in the light of the wrongs it
would do and the harms it would cause if improperly administered."
-- Lyndon Johnson