The old refrain from police sympathizers when you dare to criticize the police is “next time you need help, call a thug!” While the funny response to that goes something like, “next time you need help, call the police, wait two hours for them to get there and hope they show up at the correct house and that they don’t shoot you or your dog,” it probably doesn’t get us anywhere. Even if it’s true.
The better response is that the police are not there to protect you. It’s not their job. If you had any doubt, this is spelled out in a recent memo from the New York Police Benevolent Association to its members, where they said, “Your first priority is the safety of your own family and your fellow police officers. No matter what, every one of us must go home safely at the end of our tour.” They’re there for themselves. No more.
But how did we get here?
Before the major cases, a few cases started to set out the thinking that police don’t owe individuals a thing.
The concept comes from a non-police case. In 1928, in H.R. Moch Co., Inc. v. Rensselaer Water Co., New York Appeals Court Chief Judge (later Supreme Court justice) Benjamin Cardozo set forth the difference between a “volunteer” who has no duty to act and a person who does. What it comes down to is whether there’s some special duty. Basically, if you create the issue, you have a duty to act (if you push someone in the water and they start to drown, you’re obligated to save them). If you don’t, and there’s no other relationship that would require a special duty (a parent to their child, for example), you don’t have any duty to help, despite what a lot of people learned from the final episode of Seinfeld. Fine for most of us, but officers have a special duty, don’t they? They’re not just “volunteers,” after all.
In case after case, the courts have said that the “volunteer” theory does apply to police. To the extent that the police do owe a duty, it’s to the public at large. As for us individuals, they don’t owe us anything.
In Henderson v. City of St. Petersburg, the plaintiff had contracted the St. Petersburg (Florida) PD to help him. Henderson was a delivery driver who made deliveries to a dark and secluded part of the city and had been attacked in the past. He had been reassured by the police that if anything happened, he would be protected. Shockingly, he was attacked again, and the police did nothing. The Florida Appeals Court found that no special relationship existed and that he was not specifically owed anything by the police (despite their promises), so there was no liability.
In Massengill v. Yuma County, the Arizona Supreme Court affirmed the dismissal of a complaint against a Sheriff and deputy. In that case, the deputy watched two cars drive away from a bar at excessive speeds, weaving back and forth and driving on the wrong side of the road, and didn’t think to arrest them for reckless driving or DUI. One of the cars collided with an oncoming vehicle, killing 5 people. The court found, again, that the cops owed a “general” duty to the public but not a specific duty to the individual, so no liability.
Even the existence of a special duty is extremely narrow. In Antique Arts Corporation v. City of Torrance, the California Court of Appeals ruled that there was no duty owed where the plaintiff had arranged to have its burglar alarm directly wired to the police station. The alarm went off while burglars broke in, and the police ignored it. The court said that even with this arrangement (similar to the Florida case) there was no special duty, since “an alert from an alarm, irrespective of how transmitted, is no more than a complaint that a crime has or is being committed.”
Warren v. District of Columbia
This was a consolidation of two cases.
As you’re going to see, the facts in these cases are overwhelmingly awful.
In 1975, two women, Carolyn Warren and Joan Taliaferro, were awakened by the sound of two men breaking into the house they shared with Miriam Douglas and her 4 year old daughter. The men entered the second floor room shared by Ms. Douglas and her daughter and raped Ms. Douglas. Warren called 911 and was told police would be there immediately.
Four police cruisers responded, three to the proper address. One of them drove by without doing anything (even getting out of his car). A second officer knocked on the door and received no answer, mostly because Ms. Douglas was being raped and Mmes. Warren and Taliaferro were hiding and likely did not hear the knock over Ms. Douglas’ screams. All the officers left.
Ms. Warren called 911 again (while Ms. Douglas was still being raped). They were told the police were on the way. No police were even dispatched this time.
The men eventually went downstairs, kidnapped the three adult women and took them to their own apartment, and spent 14 hours raping them.
In the other case, Wilfred Nichol was attacked randomly and beaten to the point where his jaw was broken. Not only did police not investigate, they instructed Mr. Nichol’s friend that he shouldn’t attempt to identify the assailants.
The Court decided that neither the District of Columbia nor the individual officers could be held liable in any case, stating that “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,” citing the above cases.
As is so often noted in these cases (see Justice Alito’s “new professionalism”), the court reasoned this by effectively stating “don’t worry, they’ll weed out the bad cops.” The court said:
Public officials at all levels remain accountable to the public and the public maintains elaborate mechanisms to enforce its rights—both formally in the courts and less formally through internal disciplinary proceedings. In the case of the Metropolitan Police Department, officers are subject to criminal charges and a penalty of two years imprisonment for failure to arrest law breakers. Additionally, officers are answerable to their superiors and ultimately to the public through its representatives, for dereliction in their assigned duties.
I performed a Lexis search for any cases from DC in which an officer was criminally charged for failing to arrest lawbreakers. I’m sure you can guess how many examples I found.
DeShaney v. Winnebago County
A few years after Warren came DeShaney, which was the first of these cases to reach the Supreme Court.
In 1983, a police report of child abuse was made against Randy DeShaney, who had sole custody of his then 4 year old son Joshua. The case was quickly investigated and dismissed, and the father kept custody. As part of that, Randy DeShaney agreed that he would attend classes and that DSS would visit the home. During 1983, DSS made five reports about suspicion of child abuse. Nothing happened. In November 1983, a hospital again made a report of child abuse. Nothing happened.
In January and March 1984, DSS made two more visits to the home where they were told Joshua was too ill to see the case worker. No follow-up visits were made.
Later in March 1984, Randy DeShaney beat his son so severely he suffered permanent brain damage. When Joshua underwent brain surgery, the doctors noted that his injuries, along with the immediate beating, were also a result of “traumatic injuries to the head inflicted over a long period of time.” Randy DeShaney spent less than two years in prison. Joshua DeShaney died in 2015 at the age of 36.
The court ruled in a 6-3 verdict that the state owed no duty to Joshua, despite having established the relationship with the DSS. Chief Justice Rehnquist wrote the opinion of the majority (which included Justices Stevens, Scalia, and Kennedy).
The court further narrowed the situations where it would determine that a special relationship existed. Chief Justice Rehnquist wrote that:
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… it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf – through incarceration, institutionalization, or other similar restraint of personal liberty – which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.
In other words, except where the state has taken away a person’s duty to themselves by putting them into state custody (as in prisoners, or as in children who have been made wards of the state, and the like), there is no individual right to protection by the state.
This case is famous for Justice Blackmun’s “Poor Joshua” dissent, which was quoted by President Clinton upon the Justice’s retirement:
Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles – so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” – that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve – but now are denied by this Court – the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide.
Town of Castle Rock v. Gonzales
This is the most famous of the cases, and one that many of you likely know, as it came after many of us were introduced to either Reason or The Agitator, where it received a lot of coverage.
In 1999, Jessica Gonzales divorced her husband Simon and obtained a restraining order against him, which prevented him from coming within 100 yards of her or her four children (three of whom were fathered by Simon and one of whom had a different father). The restraining order (at first temporary, later made permanent) allowed Simon to spend time with his three daughters (aged 10, 9, and 7) on alternate weekends, for two weeks during the summer, and upon “reasonable notice” for a mid-week dinner “arranged by the parties”.
The restraining order had a “notice to law enforcement” printed on the back, which said the following (caps in original):
YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.
I said before that these cases have horrible facts, and this one’s arguably the worst. On June 22, 1999, Simon took his three daughters while they were playing outside. No arrangements under the restraining order had been made. Jessica Gonzales called the police, who dispatched two officers at 7:30 PM. She showed them a copy of the restraining order (with the above language) and asked them to enforce it. They said they wouldn’t and said that if the children weren’t home by 10 PM to call again.
At 8:30, her ex-husband called her and told her he had the kids “at an amusement park in Denver.” She again called the police, and they then again refused to do anything and told her again to call at 10 PM.
So, 10 PM comes around, kids still aren’t home. She calls again. This time, she was told to wait until midnight.
Midnight comes around, she calls yet again, she was told to wait for an officer to arrive. None did. At 12:50 AM she went to the police station to make a report in person. The officer took the report, put it on the desk, and then went to get dinner.
At 3:20 AM, the husband arrived at the police station and opened fire with a handgun. He was killed by the police. In the cab of his pickup truck were the bodies of the three girls, who had been killed earlier in the evening (the case doesn’t say just how long before, but it does suggest that they could have been saved if the officers had responded in the first place like they were supposed to).
Despite the language of the restraining order which required the police to take action, the court again found no liability on the part of the government.
The Colorado Supreme Court had made the decision that the language of the restraining order did entitle the recipient of a domestic restraining order “of an entitlement to its enforcement.” The Colorado Supreme Court further said that any other result “would render domestic abuse restraining orders utterly valueless.”
The Supreme Court disagreed, ignoring the language and stating that “a well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”
Against that backdrop, a true mandate of police action would require some stronger indication from the Colorado Legislature than “shall use every reasonable means to enforce a restraining order” (or even “shall arrest … or … seek a warrant”), §§18–6–803.5(3)(a), (b). That language is not perceptibly more mandatory than the Colorado statute which has long told municipal chiefs of police that they “shall pursue and arrest any person fleeing from justice in any part of the state” and that they “shall apprehend any person in the act of committing any offense … and, forthwith and without any warrant, bring such person before a … competent authority for examination and trial.” Colo. Rev. Stat. §31–4–112 (Lexis 2004). It is hard to imagine that a Colorado peace officer would not have some discretion to determine that—despite probable cause to believe a restraining order has been violated—the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown. Cf. Donaldson v. Seattle, 65 Wash. App. 661, 671–672, 831 P. 2d 1098, 1104 (1992) (“There is a vast difference between a mandatory duty to arrest [a violator who is on the scene] and a mandatory duty to conduct a follow up investigation [to locate an absent violator]… . A mandatory duty to investigate would be completely open-ended as to priority, duration and intensity”).
Basically, according to the Supreme Court, the language that the police “shall arrest” doesn’t require that they arrest anyone. Apparently, we have different dictionaries with regard to the definition of the word “shall”. Note also that the paragraph muses that the whereabouts of the individual were unknown, despite the 8:30 PM call discussed above.
This doesn’t matter though, because to the court, even if there was a specific duty, it didn’t apply to Jessica Gonzales. This follows the decision discussed above in Warren:
Even if we were to think otherwise concerning the creation of an entitlement by Colorado, it is by no means clear that an individual entitlement to enforcement of a restraining order could constitute a “property” interest for purposes of the Due Process Clause. Such a right would not, of course, resemble any traditional conception of property. Although that alone does not disqualify it from due process protection, as Roth and its progeny show, the right to have a restraining order enforced does not “have some ascertainable monetary value,” as even our “Roth-type property-as-entitlement” cases have implicitly required. Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 964 (2000). Perhaps most radically, the alleged property interest here arises incidentally, not out of some new species of government benefit or service, but out of a function that government actors have always performed—to wit, arresting people who they have probable cause to believe have committed a criminal offense.
The court concluded by saying that unless the state specifically says, “you can sue us for this!”, you can’t sue them.
In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as “ ‘a font of tort law,’ ” Parratt v. Taylor, 451 U.S. 527 544 (1981) (quoting Paul v. Davis, 424 U. S., at 701), but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law. Cf. DeShaney, 489 U. S., at 203.
Justice Stevens, who was joined by Justice Ginsburg in his dissent, castigated the majority and agreed with the Colorado Supreme Court, stating that this decision did indeed make restraining orders essentially worthless.
Indeed, the Court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding Colorado’s law. The Court concedes that, “in the specific context of domestic violence, mandatory-arrest statutes have been found in some States to be more mandatory than traditional mandatory-arrest statutes,” ante, at 13, but that is a serious understatement. The difference is not a matter of degree, but of kind. Before this wave of statutes, the legal rule was one of discretion; as the Court shows, the “traditional,” general mandatory arrest statutes have always been understood to be “mandatory” in name only, see ante, at 11. The innovation of the domestic violence statutes was to make police enforcement, not “more mandatory,” but simply mandatory. If, as the Court says, the existence of a protected “entitlement” turns on whether “government officials may grant or deny it in their discretion,” ante, at 7, the new mandatory statutes undeniably create an entitlement to police enforcement of restraining orders.
The dissent further argued that simply, the Colorado statute couldn’t do anything but mean that there was an individual right to enforcement.
Because the statute’s guarantee of police enforcement is triggered by, and operates only in reference to, a judge’s granting of a restraining order in favor of an identified “ ‘protected person,’ ” there is simply no room to suggest that such a person has received merely an “ ‘incidental’ ” or “ ‘indirect’ ” benefit, see ante, at 18. As one state court put it, domestic restraining order statutes “identify with precision when, to whom, and under what circumstances police protection must be afforded. The legislative purpose in requiring the police to enforce individual restraining orders clearly is to protect the named persons for whose protection the order is issued, not to protect the community at large by general law enforcement activity.” Nearing, 295 Ore., at 712, 670 P. 2d, at 143. Not only does the Court’s doubt about whether Colorado’s statute created an entitlement in a protected person fail to take seriously the purpose and nature of restraining orders, but it fails to account for the decisions by other state courts, see supra at 11–12, that recognize that such statutes and restraining orders create individual rights to police action.
Because respondent had a property interest in the enforcement of the restraining order, state officials could not deprive her of that interest without observing fair procedures Her description of the police behavior in this case and the department’s callous policy of failing to respond properly to reports of restraining order violations clearly alleges a due process violation. At the very least, due process requires that the relevant state decisionmaker listen to the claimant and then apply the relevant criteria in reaching his decision. The failure to observe these minimal procedural safeguards creates an unacceptable risk of arbitrary and “erroneous deprivation[s],” Mathews, 424 U. S., at 335. According to respondent’s complaint—which we must construe liberally at this early stage in the litigation, see Swierkiewicz v. Sorema N. A., 534 U. S. 506, 514 (2002)—the process she was afforded by the police constituted nothing more than a ‘sham or a pretense.’
So what does this all mean?
Quite simply, what this all means is that police owe you nothing. They have a duty to the public at large, but, that duty is simply meaningless. We’ve seen that recently, when one of the cowardly sheriff deputies who hid outside Marjorie Stoneman Douglas High while children were being shot outside was given his job back (and a year and a half of back pay).
You cannot expect the police to come protect you if you’re in trouble, and that’s even if we ignore what I joked about above – that they’re just as likely to kill you or your pet than they are to help you. The only person who can protect you from harm is you, yourself.
Support the Second Amendment, because it’s the only thing that you can depend on to save you.