Most police officers and the public think the thin blue line will stand faithfully between private citizens and evildoers as modern-day Knights Templars of sorts. Growing up on 1-Adam 12 and Dragnet, we Gen-Xrs were trained to adore police, who will always come to our aid. Alas, we were wrong. As we soon learned, one set of rules applies to politicians and their agencies, and the other to you and me. And until the government holds itself to the same standards it holds taxpayers to, don’t expect the police to intervene during your moment of crisis. Police carry guns to defend themselves, not us.
We Americans have no general civil right to sue the police for failure to provide us with police protection. In a nutshell, you cannot sue the government unless it’s done within a certain period of time after suffering an injury or loss. Even then, you can only sue the police for certain things. And providing you with your own personal protection services is not law enforcement’s function. In essence, since these are the king’s men, they are his sovereign representatives, shielded under the ancient doctrine of sovereign immunity.
Good question. Ever since the original Watts riots of 1965 and before California, personal injury lawyers have tried everything to defeat qualified and sovereign immunity rules after police failed to protect citizens from rioters hellbent on killing their clients and destroying their lives. No one has won based on the theories argued and the parties seeking relief.
Proponents of the Second Amendment have argued, among other things, that since the police have zero affirmative duty “to protect and to serve,” citizens must take steps to protect themselves. Opponents of self-defense rights counter that we must call 9-1-1 because the police will protect us against “imminent threats.”
Suppose your attacker is patient enough to wait 15 minutes or more for police protection, or your mob-elected politicians didn’t abolish your police department. In that case, the police or unarmed social services worker may show, eventually. We, personal injury attorneys, know better. Perhaps our founding fathers were right when they went to war after the king of England tried to seize our gunpowder?
“The first battle of the Revolution was fought over gun control. The British government wanted to seize the lawfully owned firearms of the colonists. If British troops could disarm the militia (All males 16 and over are AUTOMATICALLY “irregular militia”), there would be less of a threat to their control.” – The Morning Call.
“Neither the Constitution, nor state law, impose a general duty upon police officers or other governmental officials to protect individual persons from harm — even when they know the harm will occur,” said Darren L. Hutchinson, a professor and associate dean at the University of Florida School of Law. “Police can watch someone attack you, refuse to intervene and not violate the Constitution.”
The Supreme Court has repeatedly held that the government has only a duty to protect persons who are “in custody” …” [Emphasis] – Mises Institute
We saw the only businesses that made it out of the Rodney King riots with minor damage were those guarded by heavily armed Korean descended shopkeepers. These brave, many newly proclaimed U.S. citizens were armed with standard capacity, semi-automatic centerfire rifles like AR 15s, AKMS 47 clones, and handguns. These people protected themselves from looters, rioters, and anti-Asian, African American gangsters.
“MARTIN: Sure. You were trying to create a – sort of a protective barrier, and you did succeed in saving your store.
Most of the firearms these men used are now declared illegal by our California state legislature, felonies to possess. LAPD stood around and did absolutely nothing but protect city property. We could find no logical reason to tamper with the Second Amendment other than to try and control law-abiding citizens, depriving them of their rights. Can you think of a reason why California is trying to abolish all semi-automatic, centerfire rifles and already restricting how much ammo you are allowed to own or have in your gun’s magazine? King George had many.
We have seen elected DAs filing nonsense charges against law-abiding citizens trying to defend their families and homes with guns. Sure, eventually, the charges get thrown out in most cases. But typically, using a firearm to defend yourself, even if it’s on tape (clearly defensive in nature), will result in your arrest and bankruptcy defending false charges. And unless the police took an affirmative act in furtherance of some duty they assumed to protect you, you are out of luck most of the time. You are left facing jail to invoke an unalienable right after saving your life, limb, and property.
SCOTUS opined: “Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” (DeShaney v. Winnebago County Department of Social Services (1989) 489 U.S. 189). The seminal U.S. case that started it all is Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of App. 1981). In Warren, three women were held hostage by two violent men. Although the women were able to phone the police department two times during their 14-hour gang rape, the police never showed.
The women were later discovered, beaten, robbed, and bloodied after enduring hours of painful vaginal, anal and oral rape. SCOTUS sided with law enforcement, stating there is a “well-established rule that official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection.” In other words, despite the imminent danger, the cops did nothing. Imagine if one of those women rape victims had a firearm? If she had used it in a town like Washington State or DC, she’d be arrested, called a racist by CNN and WaPo, and probably lose her job. That is the state of things today in America, where “illegal” is legal and right is wrong. (Orwell).
The late, great Johnny Cochran lost that argument once and for all back in 1996. And once again, the Supreme Court reaffirmed its 2005 decision in Castle Rock v. Gonzales.
There, SCOTUS reminded us the only time police have liability to citizens for failing to provide police protection is:
Castle Rock was just one in a string of cases stemming from the original Watts riots and the later Rodney King riots throughout Los Angeles that spilled over nationwide. Those King riots began in April 1992, soon after a Simi Valley jury acquitted four Los Angeles police officers who severely beat black motorist Rodney King, a known, violent felon being pursued into the city by the CHP cruisers on the freeway. King was driving his vehicle above 100 mph. King was high on PCP. (Source).
Two of the “L.A. Four” who beat King were criminally convicted later on for violating King’s federal civil rights. During the Rodney King Riot’s aftermath, the late Johnny Cochran – “if the glove doesn’t fit, you must acquit” – got creative trying to create a loophole to sue the police. In that case, the plaintiffs urged, “State immunity cannot impinge on federal constitutional rights–the right granted to all citizens under the 14th Amendment to equal protection under the laws,” – Eric Ferrer, Esq.
Attack victim Reginald Denny, a white man, (and others) alleged his constitutional rights were violated by selective LAPD enforcement policies, deliberately leaving minority neighborhoods to fend for themselves. The Denny lawsuit alleged that police and City Council members redirected essential resources away from locations “composed predominantly of black and Hispanic populations to areas in the city composed predominantly of Anglo populations.”
We are all entitled to equal protection under the law. In a nutshell, these cases argued that police disparately denied police protection to some classes but not others. Because of this, African American gang member Damian Williams and his friends would not have thrown bricks at the white trucker Denny’s head, nearly killing him during the black gang member’s racially motivated attack against Denny. Attacks against white people sitting in cars seem to be part and parcel of BLM tactics in 2020-2021. However, these plaintiff’s lawyers were unsuccessful at producing evidence of a police policy, practice, or custom to discriminate in officers’ deployment to protect people or things. (Monell claim)
“A federal appeals court has rejected truck driver Reginald Denny’s claim that racist police deliberately withdrew from the Los Angeles neighborhood where he was beaten during the 1992 riots. The 9th U.S. Circuit Court of Appeals … upheld a lower court’s decision to dismiss Denny’s $40 million lawsuits…” in 1998. – Source, AP.
A little history will do you some good. Modern policing emerged in the U.S. during the country’s period of growth, beginning in the mid-nineteenth century. Like reading law in a law office, our municipal police model was heavily based upon the British/UK policing model established beginning around 1829. In the U.S., our first tax-funded municipal corporations organized professional full-time police services in 1838 Boston. Soon after, New York started their civilian police force in 1844. A bit later, Philadelphia set up its police force in 1854.
Police are basically magistrates similar to a judge. Police officers have a broad mandate to keep the peace, including intervening to prevent someone from infringing upon another person’s freedom and property interests. In effect, when a cop pulls you over and detains you during a traffic stop, he is acting as your prosecutor, judge, and jury, conducting a mini roadside trial of sorts. The only real limit on their police powers has to do with incarceration powers, which is limited. A court fines and levies penalties based upon the facts presented to the court by the traffic magistrate surrounding the investigative stop.
Officers have broad discretion to let you off with a warning or throw the book at you. Police officers play many important public functions as watchmen, patrolling, and legalistic roles, depending on how their local governments deploy them. Police forces also bring in significant revenue in traffic fines, criminal penalties, court assessments, and fees. This helps with their pensions and political aspirations.
Historically, police, including Sheriffs at common law, had no affirmative duty to protect citizens against individual attackers. However, they did set up a posse and arrested these highwaymen and lawbreakers for committing criminal actions.
Modernly, It’s much the same, police investigate, usually after the crime has already taken place. And the police make arrests based upon their investigations.
Unless an exception applies, NOT YOURS! Municipal, County, State, and federal police remain a civilian force of “public servants” paid for by your local, state, and federal tax dollars. Courts have ruled time and time again their ONLY duty is to serve the party’s [a government agency] public safety interests that “employ” them. Police have zero Constitutional duty to protect YOU. Police don’t work for you. Many of you older folks remember the 1992 Los Angeles riots, sometimes called the 1992 Los Angeles uprising, where widespread looting, assaults, and arson happened due to King’s beating.
Absolutely. Your legal remedy is to obtain a weapon, like an AR15, defend yourself by running rioter over with your car, and pray CNN or Trevor Noah doesn’t accuse you of being racist, tainting the prosecutor or jury. During the King riots, local cops protected government property only, leaving rioters to attack mostly unarmed citizens at will. The U.S. Supreme Court affirmed this fact in DeShaney vs. Winnebago County Department of Social Services and Town of Castle Rock vs. Gonzales. More than 100 small-business owners fared no better when insurance companies failed to pay them millions in business interruption and property damages claims seeking insurance payments. Most of these small businesses went under. “The fire was caused by inadequate police protection.”
True. When cops enforce laws, they must remain impartial. Police discretion won’t excuse exceeding proper force or falsely arresting a person. When police don’t discriminate in their idiocy, negligence, or impotence at enforcing laws, the Constitution does not require them to protect you. That is not their oath of office as police.
Yes. In any claim against the police for failing to protect you, your biggest hurdle will be defeating the sovereign immunity defense with the evidence you fit as a plaintiff. For you to allege negligence against anyone, they must first owe you a duty to do or not do a thing. Since police or government officials have zero general duty to protect you or your family affirmatively, most negligence cases like this are not winnable.
If the police assumed a duty (discussed below), that is one way to make a claim stick. And if you sue under the Due Process Clause, mere negligent conduct won’t be enough to go forward. You have to show police disparately refused your protection while not denying protection to others. (See Davidson v. Cannon (1986) 474 U.S. 344.)
This is the reason you have a hard time winning cases against the government. The underpinnings of this arise for two reasons:
1. Governmental tort immunity when municipalities are engaged in governmental functions, including fire-fighting, police protection, etc. (These remain almost universally governmental functions).
2. The common law notion that absent a statutory duty, a municipal corporation cannot be held liable for mere inactivity by public servants, even if you are damaged. After all, the police had no duty to act.
Besides that, no duty exists for police to protect you, even when police falsely imprison you or stomp on your smartphone. At the same time, your video records them; state law provides police/Sheriffs with sovereign immunity unless you can prove the police violated your rights.
Not exactly. You could try and sue a public servant in their personal capacity if he or she was acting, frolicking, or detouring outside their police duties when failing to protect you. But it’s doubtful they owed you a duty unless through a contract or statute. Other than that, the state remains sovereign, subject to suit in limited situations it has agreed upon in the Government Code. If you are lucky enough to get your government claim filed using the right form, with the right agency within the normal six-month filing period, you can always sue for something or another.
That is the right question you should ask. Legal experts say the key U.S. Supreme Court ruling in 1989, known as the DeShaney decision, will impact your success. In DeShaney, a small boy was killed by his abusive father. Government officials knew of the abuse but had completed their statutory, affirmative “mandatory” reporting duties to DSS. That case hinged on whether DSS officials should have intervened to remove the child into alternative care. Apparently, if DSS had insidiously failed to remove the child as a product of invidious discrimination, the case could have proceeded.
Chief Justice William H. Rehnquist made clear that the government had no constitutional duty to provide individual citizens with executive-style protection. But he also said, “the state may not, of course, selectively deny its protective services to certain disfavored minorities.” White privilege appears to come with its drawbacks when it comes to being denied a constitutional right.
“‘It will be meager comfort to Joshua and his mother to know that if the state had “selectively den[ied] its protective services” to them because they were “disfavored minorities…”‘ (id.)
Since white people are not a “disfavored minority,” they could potentially be selectively denied police protection under this argument. In this case, it appears to pay if the victim remains in a protected class of perpetual, state-labeled, “disfavored” victims. If so, and you can prove that police selectively enforce rules disparately, you can sue police for failing to help you!
Even if you are a prisoner, the state’s duties to you are spelled out. They cannot guarantee you’ll be safe among inmates. All they must do is not subject you to deprivations not generally authorized by their confinement. (See, e.g., WhitleDue Process Clause’s protections327; Youngberg v. Romeo, 457 U.S., at 316, (this case involved shackling a committed mental patient against their will); Hughes v. Rowe (1980) 449 U.S. 5, 11 (inmate removed from general prison population and confined to administrative segregation); Vitek v. Jones (1980) 445 U.S. 480, 491-494.
Because an inmate is entitled to receive proper medical treatment, he can make out an Eighth Amendment civil rights claim if he can prove the state showed “deliberate indifference” to his/her “serious” medical needs. (negligent or inadvertent failure failed to meet this burden; Estelle v. Gamble, 429 U.S., at 105–106; See also Whitley v. Albers (1986) 475 U.S. 312.) Of course, when police abuse you, they are directly violating an affirmative right under Title 42 Section 1983 and other laws. Your whole argument hinges on whether the police had or took on an affirmative protection duty to you.
Several higher courts have ruled a State’s knowledge of “special dangers” posed by a third party to an identified victim gives rise to legal, governmental liability. The state’s willingness or agreement to provide victim protection can create a “special relationship” between State and victim. Because of this, these courts ruled the Due Process Clause mandated these police departments and their agents to render adequate victim protection. (See, e.g., Estate of Bailey by Oare v. County of York (1985) 768 F.2d 503, 510-511; Jensen v. Conrad, (1984) 747 F.2d 185, 190-194, and n. 11 (dicta), cert. Denied, 470 U.S. 1052 (1985); Balistreri v. Pacifica Police Dept. (1986) 855 F.2d 1421, 1425-1426 (CA9 1988); Estate of Gilmore v. BuckleySeventh Circuit’s opinion cert. Denied, 479 U.S. 882 (1986); Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923, 926-927 (CA8 1987); Wideman v. Shallowford Community Hospital, Inc., 826 F.2d 1030, 1034-1037 (CA11 1987).
Police discretion to stand by while people die or get injured is not an absolute defense. As noted, police must protect people they have placed in danger. Let’s say a cop pulls you over in using his patrol car during heavy traffic and orders you out of your car into an oncoming truck, killing you. In that case, your survivors could sue the officer for wrongful death under negligence law theory. Police officers just can’t be held liable for negligence for failing to show up and protect you. And believe me, our car accident law firm has sued plenty of negligent cops.
Can you think of some other ways a police officer could develop a special relationship with someone requiring the officer to protect them? How about if you have a contract with an off-duty cop to provide you with paid protection? Perhaps. He is still a cop, and his department likely knows he works for you. But you also have directly contracted for itemized protection services. How about a situation when an officer begins CPR but then wants to answer their cell phone as your pulse was coming back?
It sounds like that officer performed an act in furtherance to protect you and decided to abandon you, right? It would be no different than throwing someone a life preserver who fell overboard from your pleasure craft and then tugging the line back and letting the victim drown at sea. So yes, if the cops are in the act of DIRECTLY assisting you (like returning gunfire and shielding you from bullets), they have assumed a duty to protect you. You can sue if they abandon you!
It’s up to the governor, mayor, and individual officer’s discretion what will happen. We saw it in Washington State as police stood by to let BLM and ANTIFA-inspired looters burn down and pillage businesses, taking over entire city zones by squatting. Even though the police must protect you against an imminent threat, they have the discretion to decide what a threat is or isn’t. In Washington, the police knew communists and upstarts in their leftist indigenous zone were beating and even shooting their political enemies. But police did nothing to protect the citizenry, despite this well-known, arguably imminent threat.
Have you heard of anyone suing the Washington or Minnesota cops for letting criminals attack them and torch their property? Cases like that get dismissed and affirmed according to a string of state, federal, and US Supreme Court cases. Most federal judges will dismiss cases such as this sua-sponte on their own motion.
Here is an example from 2018 that may shock you. Fifteen students attending Marjory Stoneman Douglas High School filed a lawsuit against Broward County, Florida city police for failing to protect the school’s children, instead of hunkering down, giving the assailant free rein to murder 17 individuals inside. The judge, in that case, declared local police had zero constitutional duty to protect someone unless they were in police custody. He was a cowardly law enforcement officer, but the Parkland Florida police force employing him was too afraid of the police union to fire him. After all, their officer had no legal obligation to help anyone, according to State and federal district courts and SCOTUS.
The ruling remains squarely in line with a 2005 Supreme Court decision exonerating police in Colorado for refusing to arrest a violent father who kidnapped his three young daughters in defiance of a court-issued restraining order. The man ultimately murdered his kids during the period of time their mother repeatedly begged the police station to act.
The case law is clear; even correctional officers and deputies have no duty to protect you from being anally or orally raped in the general population. But you could sue a prison bus driver for negligence in transporting you to Twin Towers jail, for example.
Writing for the majority in Castle Rock vs. Gonzales, Justice Antonin Scalia understood that Colorado’s law required the police to arrest restraining order violators. Still, he found that “the well-established tradition of police discretion” will override state law. Officers have discretion. We already know police must not use coercive powers to harm us. Many legal scholars argue that a “negative constitution” requires the government to guarantee free benefits to citizens like health care and personal safety.
In the 1989 landmark case of DeShaney v. Winnebago County Department of Social Services, the U.S. Supreme Court found the Due Process Clause was not violated by DSS failing to protect Ms. Gonzales’ kids from the coma and traumatic brain injuries caused by Joshua’s dad’s ongoing, known abuse. The DeShaney decision was recently reaffirmed by the U.S. Supreme Court in 2005, in Castle Rock v. Gonzales, overturning a federal appeals court allowing Jessica Gonzalez the right to sue Castle Rock City after the police refused to arrest her estranged husband, Mr. Simon Gonzales.
She told the police Mr. Gonzales kidnapped her three daughters sired by him, ages 7, 8, and 10. Since he violated a restraining order protecting her and the kids, the state law required law enforcement to arrest Simon at the Denver amusement park he was using his cell phone from. After Ms. Gonzales begged the police for several hours to rescue her kids, her estranged husband appeared at the police department and began spraying bullets at the police. Later, police found the Gonzales kids’ lifeless remains in Gonzales’ car’s trunk, where they had been during the precinct attack.
Even though Ms. Gonzales’ protective order stated: “you shall arrest” Mr. Gonzales; she had zero “property interest” under the 14th Amendment’s Due Process clause forbidding the deprivation of property without due process. Like Cochran had tried in the Denny case, Jessica’s lawyers used procedural Due Process to attempt circumvention of DeShaney’s 1989 stare decisis precedent. But the U.S. Supreme Court felt this, and the DeShaney case was basically indistinguishable.
Chief Justice Antonin Scalia found that Ms. Gonzales had zero “property interest” in enforcing the restraining order. He also quipped, “such a right would not, of course, resemble any traditional conception of property.” After reconfirming its earlier DeShaney precedent that the U.S. Constitution guarantees no affirmative police protection, she had no legal recourse rights. This so-called “no duty to protect” rule remains the law of the land.
These rulings discussed might be why police agencies started distancing themselves from such an apparently obligatory pronouncement starting in the late 1970s. Although slogans like “Protect and Serve.” or some variation has been painted on police vehicles for years, the Los Angeles Police Department coined the term. In the past, LAPD, including LAPD SWAT, led the way in law enforcement techniques, tactics, and traditions. So it makes sense that patrol cars across America would borrow the emblazoned police cruiser slogan idea.
Many municipal police departments removed the words to “to protect” from their police cruisers and mottos. We have heard that many police chiefs and mayors feared citizens might sue them for “accepting a duty,” for declaring they must “protect” you, which is false. But this gossip remains unsupported by the evidence we could find. It appears some departments are replacing slogans with newer ones like New York City’s “courtesy, respect, and professionalism.” Furthermore, NO police agency “oath of office” includes the term “protect and serve.” At least not in this country.
Modernly, even all black-run city and state police are accused of being systemically racist. No studies exist with evidence showing this to be accurate among the general public. But it is conceded by most experts that the officer’s mood or temperament and aggressive policy enforcement directives seem to be the reason for most excessive use of force and homicide cases against officers.
For example, New York officers were told to enforce regulations against selling single cigarettes in public places aggressively. After all, the mayor and city council reasoned, Eric Garner, a poor African American, was not paying his sales taxes. “NYPD officers approached Garner on July 17 on suspicion of selling single cigarettes from packs without tax stamps.
After Garner told the police that he was tired of being harassed and that he was not selling cigarettes, the officers attempted to arrest Garner. . . Garner repeated … “I can’t breathe.” 11 times while lying face down on the sidewalk . . lost consciousness, . . lying on the sidewalk . . seven minutes . . .pronounced dead at an area hospital approximately one hour later.” – Wikipedia
This failure to pay a cigarette tax case can be traced to the modern news media allegation accepted as truth by most, that all police forces are systemically racist. This is also where the biased press’s famous slogan, “I can’t breathe” in the recent George Floyd case (high on crystal meth and Fentanyl), originated. In Floyd and Garner’s case, the police had ancient discretion not to arrest, but local bosses made clear this policy was important in revenue collection in Garner’s case. Unionized police, the elected chiefs, and mayors know that taxpayers and not bums pay their pensions. Store owners pay local cigarette taxes; homeless street people on drugs don’t.
In Floyd’s case, the officers were correct to arrest the obviously intoxicated, violent felon. But once Floyd was in custody, they had a duty not to suffocate him to death, same as Garner. In both cases, the police appear to have breached their duty to use reasonable force. Either way, had Floyd gotten in his van on the lethal doses of drugs he was on and killed bystanders, no one could have sued the police!
Some better-off folks are receiving help with law enforcement issues by seeking security or policing services from private police. A deal with a company like Los Angeles PROFESSIONAL SECURITY Alarm & Video Monitoring would save the city of Los Angeles and its citizens money and eliminate a significant rash of injuries and deaths to taxpayers not receiving police help. A company like this could potentially deploy helicopters with rappeling teams trained in military and police tactics to defend private businesses and homes from things like domestic violence, at a fraction of the cost less trained; government loyal LAPD officers could.
Citizens Are Lying To Get Police Help?
It has gotten so bad “… some agencies have reported that on busy nights, some citizens have had to wait up to two hours for officers to respond to non-emergency calls. In response to that, citizens with non-emergencies have been telling 9-1-1 operators that a gun or serious crime has occurred to obtain faster police response times! And “…in many cities response time is still considered the key test of a police department’s effectiveness.”‘ (Source).
As red states begin the process of turning blue, defunding their police, and crimes of violence skyrocket, don’t expect the few police remaining nearby to provide you police protection. However, you can start asking for help from your state legislature since the several states retained their colonial police powers under our glorious Constitution. Perhaps we should pass laws guaranteeing police protection, or better firearms training laws, coupled with an easing in firearms restrictions on those few people wishing to protect themselves from harm?
Though you may find it alarming, we maintain no affirmative right to police aid, even a helpless woman or child, facing imminent danger. We all remain responsible for our own personal safety, the main reason firearms rights activists are exposing the hypocrisy of what they call “the nanny state.” The United States Constitution does not require police to protect you from an individual attacker. This has remained an unwavering rule since our ancient common law history and won’t change anytime soon.
Michael Ehline is lead counsel with the California personal injury law firm at Ehline Law. Besides being a world-famous cruise ship accident attorney, Ehline helps military motorcyclists recover money for on and off-base car accidents. He is a lobbyist for better transportation safety laws, legal researcher, inactive U.S. Marine, and journalist. Michael’s opinions, fact check, or legal team do not always reflect the views of the Ehline Law Firm, its wounded clients, or employees, including paralegals and receptionists. We have provided this educational article for general information purposes only. We intended nothing here to be taken as legal advice because it’s not.
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