Police Have No Duty To Protect Individuals info
| Police Have No Duty To Protect Individuals |
by Peter Kasler
Self-Reliance For Self-Defense -- Police Protection Isn't Enough!
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:
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"  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. 
- 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. 
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."  There are many similar cases with results to the same effect. 
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.  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.
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.  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.