Newsgroups: talk.politics.guns
From: [h--s] at [ssd.intel.com] (Kirk Hays)
Subject: Re: Japanese Student Killed in Lousiana.
Date: Mon, 14 Jun 1993 22:50:35 GMT
Here is the guts of an article I put together several months ago on
this very topic.
Enjoy.
=====================================
[Some of the following is extracted from a JFPO special report, the
remainder from works referenced in the body of the text, or from
postings on the net.]
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
(1856)].
There are numerous court cases which hold that the police have no
legal obligation to protect individuals. Here are some relevant
cases, some with background:
=================
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 that 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.
The Superior Court of the District of Columbia held that:
"...the fundamental principle [is] 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 relation-
ship between the police and an individual, no special 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)].
===============
"...there is no constitutional right to be protected by the State
against being murdered by criminals or madmen." [Bowers v. DeVito,
U.S. Court of Appeals, Seventh Circuit, 686F.2d 616 (1882) See also
Reiff v. City of Philadelphia, 477F.Supp.1262 (E.D.Pa. 1979)]
==============
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 protect her.
When he threatened her with immediate attack, she again urgently beg-
ged 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 has 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 leg-
islative-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 partic-
ular 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 victim-
ized not only because she had relied on the police to protect her, but
because she obeyed New York laws that forbade 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 New York, 293
N.Y. 2d 897 (1968)].
===============
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 over
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 Appeals 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 or,
if police protection service is provided, for failure to provide
sufficient police protection." [Hartzler v. City of San Jose,
App., 120 Cal.Rptr 5 (1975)].
=============
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 Justice 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)].
=============
On 3 June 1985 police tried top arrest a man and his "girl friend",
both of whom were wanted on multiple murder charges, and who were
known to be heavily armed.
The alleged murderers - along with the "girl friend'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 [the children] 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 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
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)].
=============
Marvin Munday murdered Jack Marshall in Virginia. Mundy - convicted
for carrying a concealed pistol - was sent to jail by a judge who
expressed concern that Munday, "might kill himself or a member of the
public". Munday was mistakenly released from jail 8 days later. Nine
days later he was re-arrested on a 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, 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 officials to the citizenry at large and a special duty
owned 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 due process claim also must fall."
[Marshall v. Winston, 389 S.E.2nd 902 (Va. 1990)].
=============
For similar cases, also see:
Calogrides v. City of Mobile, 475 So. 2d 560 (S.Ct. Ala. 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)
================
The lone exception [to police not having to provide protection]
appears to be informants, persons under arrest, and people who are
assisting the police:
"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 the
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)].
===============
I recommend reading "WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY",
by David B. Kopel, which also touches on the question of police
obligation.
$8.00 per single copy;
quantity discount available;
VISA/MC accepted.
Write, phone, or Fax to:
Independence Institute
Attn. Marsha Brekke
14142 Denver West Parkway, #101
Golden, CO 80401
(303) 279-6536
Fax (303) 279-4176
From the above article:
>
> Under the legal doctrine of sovereign immunity, the police have no duty
> to protect any individual citizen from crime, even if the citizen has
> received death threats and the police have negligently failed to provide
> protection.[125]
>
>
> .
> .
> .
>
> 125. See, for example, _Bowers v. DeVito_ 686 F.2d 616 (7th Cir. 1982) (no
> federal Constitutional requirement that police provide protection);
> _Calogrides v. Mobile_, 475 So. 2d 560 (Ala. 1985); Cal. Govt. Code SSSS 845
> (no liability for failure to provide police protection) and 846 (no liability
> for failure to arrest or to retain arrested person in custody); _Davidson v.
> Westminster_, 32 Cal.3d 197, 185 Cal. Rep. 252; 649 P.2d 894 (1982); _Stone
> v. State_ 106 Cal.App.3d 924, 165 Cal. Rep. 339 (1980); _Morgan v. District
> of Columbia_, 468 A.2d 1306 (D.C.App. 1983); _Warren v. District of
> Columbia_, 444 A.2d 1 (D.C. App 1981); _Sapp v. Tallahassee_, 348 So.2d 363
> (Fla. App. 1st Dist.), _cert. denied_ 354 So.2d 985 (Fla. 1977); Ill. Rev.
> Stat. 4-102; _Keane v. Chicago_, 98 Ill. App.2d 460, 240 N.E.2d 321 (1st
> Dist. 1968); _Jamison v. Chicago_, 48 Ill. App. 3d 567 (1st Dist. 1977);
> _Simpson's Food Fair v. Evansville_, 272 N.E.2d 871 (Ind. App.); _Silver v.
> Minneapolis_ 170 N.W.2d 206 (Minn. 1969); _Wuetrich v. Delia, 155 _N.J.
> Super. 324, 326, 382 A.2d 929, 930, _certif. denied_ 77 N.J. 486, 391 A.2d
> 500 (1978); _Chapman v. Philadelphia_, 290 Pa. Super. 281, 434 A.2d 753
> (Penn. 1981); _Morris v. Musser, 84 Pa. Cmwth. 170, 478 A.2d 937 (1984).
> The law in New York remains as decided by the Court of Appeals the 1959
> case _Riss v. New York_: the government is not liable even for a grossly
> negligent failure to protect a crime victim. In the _Riss_ case, a young
> woman telephoned the police and begged for help because her ex-boyfriend had
> repeatedly threatened
> "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." The day after she had pleaded for police
> protection, the ex-boyfriend threw lye in her face, blinding her in one eye,
> severely damaging the other, and permanently scarring her features. "What
> makes the City's position
> particularly difficult to understand," wrote a dissenting opinion, "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. New York_, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 806
> (1958).
> Ruth Brunell called the police on 20 different occasions to beg for
> protection from her husband. He was arrested only one time. One evening Mr.
> Brunell telephoned his wife and told he was coming over to kill her. When she
> called the police, they refused her request that they come to protect her.
> They told her to call back when he got there. Mr. Brunell stabbed his wife to
> death before she could call the police to them that he was there. The court
> held that the San Jose police were not liable for ignoring Mrs. Brunell's
> pleas for help.
> _Hartzler v. City of San Jose_, 46 Cal. App. 3d 6 (1st Dist. 1975). The year
> after winning the _Hartzler_ case, the San Jose government appointed Joseph
> McNamara Police Chief. Chief McNamara has since become the leading police
> spokesman for HCI.
--
Kirk Hays - NRA Life, seventh generation.
"The only thing necessary for the triumph of evil is for good men to
do nothing." -- Edmund Burke (1729-1797)