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  • What is “Failure to Protect” – Civil Rights

    What is “Failure to Protect” – Civil Rights

As a general rule, the authorities have no duty to protect your rights unless they place you in danger and thereby assume a duty. Americans file thousands of civil rights lawsuits each year pertaining to educational discrimination, workplace discrimination, welfare benefit denials, freedom of speech, privacy rights violations, and freedom of religion, among many others. Under the U.S.C. § 1983, citizens have the right to pursue action against a party in state or federal court for violating their civil rights.

Government abuse is no stranger to California, and civil rights cases are very complex. Ehline Law and our personal injury attorneys handle civil rights cases, especially bodily injury claims arising from civil rights violations across the state.

In this article, we will go over the times when the United States Supreme Court and the State were responsible for civil rights violations. We will also shed light on civil rights claims and the liability arising from the failure to protect. Think about the botched Uvalde school massacre response.

The police refused to protect the kids at this crucial time. But the parents had no right to sue the Uvalde police based upon a duty to protect. They never assumed a duty to shield the kids. Instead, they apparently worried more about preventing parents from saving their kids.

Failure to Protect Blacks’ Rights: When the Supreme Court is Responsible for Discrimination

After the Civil War, there was a lot of confusion about whether the former 4 million slaves would receive full United States citizenship or whether they would still face suppression from the white population.

In the 1860s, the Republican Party wanted to grant African Americans living in the United States legal rights and social equality. Dubbed “radical Republicans” at the time, the Republicans managed to implement constitutional amendments that would allow former slaves legal equality and access to the federal courts in the event of the violation of their rights.

In 1865, the 13th Amendment put an end to slavery, and just three years later, the 14th Amendment provided the black population with citizenship and equal protection as enjoyed by the white population. In 1870, the 15th Amendment gave African Americans the right to vote. In 1875, the Republicans enacted the Civil Rights Act that would entitle all Americans, regardless of their race or skin color, to equal enjoyment of public facilities.

Lawrence Goldstone, a constitutional scholar, believed that the decisions taken by the “radical Republicans” were perhaps the largest social engineering experiment where the federal government would integrate the 4 million slaves into society almost immediately.

For four decades, African Americans never received the rights promised to them by the government, especially after the Supreme Court declared the 1875 Civil Rights Act unconstitutional.

The courts further went on to state that Congress did not have the constitutional power to provide equal protection to blacks as that was the decision of state and local governments. The court also passed a ruling against the ban on Ku Klux Klan meetings, stating that it was unconstitutional.

These rulings by the Supreme Court suppressed the civil rights movement and stripped the black communities of their rights, resulting in serious discrimination and a mass migration of blacks from the Southern states to the cities in the North. These Supreme Court rulings created a century of racial discrimination and opened the doors to removing their right to vote.

The Southern states took steps to redraft their constitution after ruling against the Civil Rights Act of 1875. For example, in South Carolina, the introduction of ballots became a huge hurdle for people lacking reading skills to vote properly.

In Mississippi, applicants had to interpret a small part of their state constitution as part of the voting tests. However, the whites would receive a simple section to read, while the blacks would have extremely difficult passages that were surprisingly written for this purpose.

In 1897, Louisiana had about 130,000 African Americans who could cast their votes. However, the 1898 constitution reduced that number to just 5,000 black voters. In 1890, Louisiana passed a law that would forbid different races from mixing on public railways. The law required separate railway carriages for white and colored races.

In 1896, the Plessy v. Ferguson decision further exacerbated racial discrimination. In 1892, Homer Adolph Plessy purchased a railway ticket and decided to sit in the “whites-only” car. When the railway officers realized Plessy was in the wrong car and refusing to leave, they called the police to arrest and jail him.

Plessy filed a petition stating that the law violated his constitutional rights under the Fourteenth Amendment. However, the court gave their verdict against Plessy, stating that the law only protected civil and political rights, not social ones.

The court also stated that the enforced separation in train cars is not a badge of inferiority but simply a misperception by colored races as one. It took the country and the Supreme Court almost six decades to reverse the decision in Plessy v. Ferguson, stating that it clearly violated the protection offered under the Fourteenth Amendment.

Right until the late 19th century, colored races suffered at the hands of the white population due to the rulings made by the Supreme Court. These decisions that slowly chipped away at the 1875 Civil Rights Act put a dent in the United States as a more progressive nation and gave the state governments enough power to discriminate and segregate colored races without trial.

Failure to Prevent Disappearances in Mexico: When the State is Responsible for Violence

In 2006, the former Mexican president, Felipe Calderón, announced a war against drug trafficking organizations and called in the military to assist the local police forces.

Since then, the violence has drastically increased and Mexico has become the face of a human rights and humanitarian crisis. The “war on drugs” displaced 300,000, killed 270,000 people and resulted in the disappearance of 70,000 residents.

The violence carried out and its causes are complex, and those instigating atrocities, such as disappearances, including the state and members of these organized criminal groups, sometimes act in collusion.

The data on the disappearances do not show that the crimes are all committed against homogeneous groups. Although most of the victims are male, there are also missing women who could be targets of sex trafficking and gender-based crimes. The disappearances span different people, genders, ages, and professionals. Even social leaders, activists, police officers, and members of the military are all victims of the disappearances.

The 70,000 people who disappeared do not include the migrants who disappeared while going through Mexico, becoming victims of trafficking and state-enforced detention practices. The victim diversity suggests that there are different motives for the disappearances. However, one factor common among all the cases is persistent impunity.

Official reports reveal that there are over 3,900 clandestine mass graves in Mexico and more than 30,000 unidentified bodies lying in the morgues. These numbers suggest that a large number of the people who disappeared may not be alive, and since they are still not found, it suggests that the government is failing to either identify bodies or dispose of them.

On the other hand, some reports provide sufficient evidence of forced recruitment carried out by organized criminal groups, which suggests that some of the disappeared people may still be alive.

The government keeps insisting that criminal organizations are behind most of the disappearances in Mexico. However, human rights organizations working in Mexico have already documented hundreds of cases where there was an involvement of the police department and the military.

There are also situations where the state forces work together or for criminal groups or they fail to carry out their responsibilities by not intervening during atrocious acts. This partnership of sorts makes it difficult to distinguish between “crime” and “state” in the country.

Let’s look at some examples to illustrate what we mean by this.

In 2014, 43 students disappeared from a college in a rural village in Guerrero state. There are two versions of what people think happened. The first one, and the official telling of the story, involves an attack on the students by the local law enforcement forces, who were then handed over to a criminal gang who killed the students.

International experts find this version of the incident hard to believe, and they think that the students drove the buses carrying drugs or money to the United States. They believe that the disappearance was a way to “protect” the shipment. Both versions clearly show a strong link between the state forces and criminal groups.

Another example of the state and criminal groups working together is the 2011 three-day attack. “The Zetas,” an organized criminal group, carried out attacks in Allende and Piedras Negras, towns in the state of Coahuila.

The attack was an act of vengeance against the “traitors” for presumably sharing information with the US Drug Enforcement Agency. Three hundred people disappeared during the three-day-long attack and authorities were clearly instructed not to intervene. After the incident, there was no reaction from the government to carry out any investigations, and the surviving family members received threats if they decided to speak.

Legislation on Disappearances

After more than a decade of lobbying by civil society organizations and family members of those who disappeared, the Mexican government in 2017, under the governance of former president Enrique Peña Nieto, enacted a new federal law that would address the disappearances in the country.

The General Law on Missing Persons requires the federal and state authorities and institutions to work together and coordinate to improve the search task forces. This includes the sharing and processing of confidential high-level information regarding the possible whereabouts of the missing disappeared people or their dead bodies.

The law requires the creation of a National Search Commission, which will coordinate a search effort at the federal level and work with local and state search commissions. The law also emphasizes creating a National Registry for unidentified dead bodies.

The General Law also puts a system in place that would enable law enforcement authorities to exchange information among different departments and across multiple jurisdictions. The law also guarantees the protection of rights to the surviving family members of the missing people according to more than one federal court and the United States Code.

Legal Concerns Regarding Mexican Legislation

Although many would believe that the Mexican legislation is a step in the right direction, there are several legal concerns pertaining to it and police custody problems with beat cops and prison officials.

The legislation assumes that there is a distinction between state-enforced disappearances and private disappearances, which are different. However, we’ve gone over the two examples, Ayotzinapa and Allende, which suggest that it is difficult to make that distinction.

Even with the lack of information present, it is understandable that the violence in the country is clearly attributed to the violent stand-off between the state forces and organized crime groups. The anti-drug strategies further worsened the violence between these groups. Political experts believe that it is the state’s policies that have led to an increase in criminal activities across the country by state forces and organized crime groups.

In violence-related incidences where it is clear that the organized crime groups are the ones carrying out disappearances, the growing size of these groups and the impunity they receive is a clear indication that the state is failing to take reasonable measures to ensure the human rights to the vast majority of its residents.

The Threshold for Inaction

Working Group on Enforced or Involuntary Disappearances states that collusion and corruption that allow the existence of organized crime groups in Mexico may be an authorization or support for state officials to become bystanders during acts of violence and imminent danger.

The Inter-American Court states that the failure of the state to investigate the atrocities carried out in the country, the disappearances by private actions, and the impunity are all forms of “assistance” to those carrying out or instigating the crimes. Violence perpetrated by bad cops is also a consideration here.

The European Court of Human Rights (ECtHR) emphasizes the need to take proper investigative measures by the authorities to prevent any appearance of state collusion with criminal groups or their tolerance of acts of violence as well as suppression of voting rights.

Article 3 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) establishes the state’s obligation to investigate and prosecute perpetrators who carry out crimes, including disappearances, without the support of state agents. The failure to investigate the disappearances by the state does not indicate support but the violation of obligations mentioned in the ICPPED.

There is a lack of knowledge by the state agents of the act in question. However, this further raises questions about distinguishing knowledge as a catalyst to take preventive measures or a trigger for acquiescence.

Whether there are elements to establish acquiescence or not, the state should be responsible for failing to prevent acts of violence from materializing. The Cotton Field case is a perfect example whereby the Inter-American Court noted that the absence of a general policy is the state’s failure to comply with its obligation of prevention.

However, the court found that it could not hold the state responsible for failing to comply with its obligation of prevention because widespread “private” violence, even if there is a general risk, is not enough to create grounds for human rights violations. The court held that the general risk raises the protection obligations once the state is aware of the risk to specific individuals.

In Mexico, there is a need to take a different approach where it is clear that the perpetrators of the crime are non-state actors. So far, only a few cases have come before the ECtHR, and the majority of them are pertaining to human trafficking. This scenario correlates with the arguments made by the Mexican state as part of their defense in the case of Alvarado Espinoza and Others v Mexico.

Alvarado Espinoza and Others v Mexico: First Case on Mexico Military Abuses

Three years after the start of the war on drugs, in 2009, a group of armed forces barged into two houses where three members of the Alvarado family resided. They detained three members of the same family by throwing them in the back of the truck, with no whereabouts of the people to date. No jail staff ever came forward as to their whereabouts either.

The family pursued all legal options to exercise their rights and find out about the disappearance of their missing family members. After the Mexican state did not comply with the recommendations sent by the Inter-American Commission, the case reached the Inter-American Commission on Human Rights in 2016 as the only way to attempt to provide protection to the victims.

The Mexican advocacy group, the Center for Women’s Human Rights, which legally represented the Alvarado family, stated that different investigations into the case revealed that the military forces were behind the disappearance.

The state maintained the position that the state forces had no hand in the abduction of the victims but that the criminals who dressed in fake military clothes did. However, the Inter-American Court found sufficient evidence to show that the Mexican military engineered the disappearances, making the case an “enforced disappearance” case.

In 2018, the court recognized that the disappearance of the three family members had members of the military involved and that the state failed to carry out investigations into the matter adequately.

The court established that the state moved the case to the military jurisdiction, highlighting the lack of audit carried out on military operatives. It also established that the state was responsible for failing to conduct a prompt investigation into the disappearance.

The question remains if the evidence did not indicate a direct military involvement, how would the court approach the scenario then?

Civil Rights Claims

In 1871, the Fourteenth Amendment of the United States became enforceable in all states after the United States Congress passed the law. The Civil Rights Act is the remedy for state-sponsored infringement of an individual’s constitutional rights. The law provides a way for the residents to take action against state and local authorities if they abuse their position of power and deprive the residents of their constitutional rights, including public accommodations, educations and economic opportunity.

It is clearly mentioned under the United States Code, 42 U.S.C. § 1983, that any person that deprives another United States citizen of their constitutional rights and privileges is liable for any injuries caused to the other person due to their actions. Most states have their own civil rights laws that provide protection in additional circumstances.

The plaintiff’s attorney must be able to give a solid reason for why they’re filing a suit in a particular court. In many cases there is a difference when pursuing legal action in federal and state courts.

Juries in federal court are from a larger pool of candidates, which means that local political attitudes are less likely to influence them as compared to state juries. Even the federal judges are more familiar with handling these cases than state judges. A federal jury consists of 6 people, while a state jury consists of 12.

Do State Laws Affect Federal Civil Rights Cases?

Some states implement certain laws that make it quite challenging for a distressed person to pursue a suit in a state court against government institutions, agencies, or their employees. For example, in Wisconsin statute § 893.8, there are several hurdles for victims looking to pursue legal action in the courts, such as the 120-day notice, the $50,000 limit of damage provisions, and more.

However, according to the US Supreme Court decision in Felder v. Casey, the court decided that any federal constitution claims or civil rights actions preempt the Wisconsin 120-day notice requirements. The feds go out of their way to protect black people and have imposed strict sanctions for failing to look out for their safety while in custody of the police who enforce local laws.

When rights are violated, Ehline Law Firm can file a civil rights case for a black man, Latino, or even a white parent who is having their rights violated by an activist school administrator or other child groomer. We have the education and charisma to win big for most people. We will make the at fault party pay!

Do Police Owe Prisoners the Right to Protection?

The Eighth and Fourteenth Amendments are pretty straightforward when it comes to prisoners’ rights. Under these amendments, prison officials must not abuse prisoners under their care and must also provide them with protection against other prisoners and, in some cases, from the prisoners themselves.

When a prison official takes a prisoner into custody, they strip them of their ability to protect themselves. In such situations, it is the responsibility of the prison officer to take reasonable care and ensure the protection of those under their custody. The prison staff may be responsible for the damage if someone suffers injuries or dies while in prison.

There is also the state or federal qualified immunity that some states have to shield the defendant from liability. However, that too, depends on whether there is a clear indication of constitutional violation by the defendant.

This immunity provided by the state can lead to cases of increased police brutality or the use of excessive force by people in positions of power. Acting lawfully while using excessive force does not qualify as a liability and can result in immunity for the state official.

Let’s look at Saucier v. Katz, a case on excessive force.

Saucier v. Katz: Immunity for State Officials for Acting Lawfully

In 1994, the vice president, Albert Gore, Jr., decided to convert the Presidio Army Base into a national park. The event drew hundreds of military and civilian observers. In fear that scientists would use the Army’s Letterman Hospital for animal testing, Elliot Katz, president of In Defense of Animals, carried a concealed banner condoning animal torture at National Parks.

In the past, demonstrations that included distributing handbills or displaying protests at a military base would result in the officers requiring the protestors to leave the event. Knowing this, Katz hid the banner under his jacket, and when Vice President Gore started to speak, Katz took the banner out and started displaying it as he walked toward the speaker’s platform.

Donald Saucier, a military officer on duty, and another officer grabbed Katz as he reached the fence and took him outside of the event area. According to Katz, the police officers dragged him outside even though he was wearing a knee-high leg brace. Katz claimed that the military officers threw him in the back of a military van. Still, fortunately, he was able to cushion the impact to prevent any injuries as he fell on the floor of the vehicle.

The officers then transported Katz to a military police station, where they questioned him for a while before releasing him later that day. Katz sued Saucier, alleging that the officer violated the Fourth Amendment by using excessive force to arrest him.

The court stated that the law surrounding excessive force claims was explicitly established when the officer arrested Katz. The petitioner, in this case, Saucier, did not receive a summary judgment.

The Court of Appeals stated that if the law surrounding excessive force claims had not been established, then the matter would’ve immediately settled and Saucier would have received immunity for his actions. However, if the law is clearly established, then the court must determine whether the officer believed he was acting lawfully.

The court found that the second step where the officer believed he was acting lawfully and the merits of a Fourth Amendment excessive force claim were similar. Hence, the judgment entitled Saucier to qualified immunity.

Do You Have a Valid Civil Rights Lawsuit?

For a federal civil lawsuit to stand, the plaintiff must prove that they were deprived of the rights promised to them in the constitution and the laws.

There are a lot of questions raised as to what the Civil Rights Act is trying to remedy. Does the defendant carry out a wrongful act against the plaintiff, something that a civil rights act would remedy?

A lawsuit is only allowed if there is clear evidence of the defendant depriving a person of their rights, as mentioned in the federal laws or the constitution.

Does the Civil Rights Act Create Substantive Rights?

There should be a clear indication of the violation of a federal right for a civil rights claim to be valid. The Civil Rights Act does not create substantive rights, as is evident from the Weber v. City of Cedarburg case.

Donald T. Weber alleged that his former wife and two Cedarburg police officers hatched a conspiracy against him and that the officers would conduct surveillance on Weber using their authority and power.

Weber claimed that the officers would follow him, take notes, and check the cars around his vehicle in parking lots. He stated that the officers mischaracterized him as a drug user to justify their activities. Weber argued that the officers violated his constitutional rights to be free from any enforced seizures and searches and stripped him of his Fourth Amendment due process rights.

After hearing Weber, the trial court dismissed his complaint, stating that there was no indication of deprivation of a federal right to the plaintiff and no specific harm to the plaintiff. The judgment stated that the Civil Rights Act does not create substantive rights.

When Does the Due Process Clause Offer Protection?

The Due Process Clause of the Fourth Amendment restricts the federal government as the government cannot deprive an individual of their life, liberty, or property without carrying out the fair procedure.

Many plaintiffs try to find protection under the Due Process Clause of the Fourteenth Amendment without realizing that the clause kicks in when there is a clear violation of the constitutional protection of life and property.

Let’s look at Penterman v. Wisconsin Electric Power Co., a case about a plaintiff believing that the defendant, a state employee, violated his rights to procedural due process.

After acquiring a farm which they converted to a dairy farm, Penterman and Kamnik started to experience electrical problems. Penterman reached out to the Public Service Commission’s Stray Voltage Analysis Team (SVAT), who would contact Penterman’s electrical company, Wisconsin Electric Power Company (WEPCO), on his behalf and advise them on the electrical problem.

However, WEPCO representatives conducted a few tests and claimed that the issue was related to the farm and not WEPCO. Penterman claimed that the tests had irregularities and reported his concerns to Daniel Dasho, Program Manager of SVAT. Dasho visited the farm with WEPCO representatives and found that it was a utility problem. He advised the WEPCO representative to deep ground the distribution lines on which WEPCO placed grounding rods. But the excess voltage issue continued.

Penterman reached out to PSC and Dasho again to conduct further testing, but Dasho claimed that the issue was now resolved from the utility side and that the excess voltage was coming from farm sources.

Fourteen months later, Dasho oversaw a limited SVAT analysis of the farm’s excess voltage and reported no severe stray voltage. However, Penterman believed that the report Dasho presented was inconsistent with the findings of the tests conducted on the farm and decided to file a suit against WEPCO.

Penterman claimed that WEPCO deprived him of his rights to procedural due process. Among many allegations, Penterman alleged that Dasho, working together with WEPCO, failed to ensure PSC procedures for identifying and measuring stray voltage. In retaliation, Dasho filed a motion to dismiss the complaint, stating that the complaint failed to mention any claim on which relief could be granted.

After assessing the facts of the case, the court found that there was no claim against Dasho and that Dasho was also entitled to qualified immunity from Penterman’s constitutional claims. The protection offered by the due process clause is only triggered if state action violates the constitutional protection of life and property.

Another important case establishing grounds for state officials’ sovereign immunity is Daniels v. Williams. A corrections officer left a pillow on a staircase, which resulted in an inmate, Roy Daniels, slipping on it and suffering injuries. Daniel alleged that the defendant, the corrections officer, violated his Fourteenth Amendment, negligently depriving him of his liberty interest in freedom from bodily injury. Daniel also claimed that the officer stated that he would receive a defense of sovereign immunity.

The District Court found that even if the officer received a defense of sovereign immunity, it would not deprive Daniel of the opportunity to present his case. The court also stated that the injuries resulting from the officer’s negligence do not translate to a deprivation of liberty under the due process clause of the Fourteenth Amendment.

The two different cases mentioned above and the judgment passed by the respective courts highlight the complexities of a civil rights lawsuit. The plaintiff must prove the actions of the defendants were intentional or reckless, which is quite difficult to do so.

Does Reckless Action by State Officials Violate Civil Rights?

Reckless action carried out by state officials does not violate civil rights. State officials can receive qualified immunity even if they intentionally violate the law.

In the case of County of Sacramento v. Lewis, the deliberate or reckless action by a law enforcement officer aimed at catching a suspected offender does not violate any civil rights.

Although the officer chasing a suspected offender in a high-speed car chase resulted in the death of the suspect, the court stated that there was no evidence that the chasing officer had a purpose to cause the suspected offender any harm.

Is the Government Agency Vicariously Liable for its Employee’s Misconduct?

A key thing to remember regarding civil rights cases is that the government agency is not vicariously liable for any wrongdoings carried out by its employees.

In the case of Monell v. Dept. of Social Services, the plaintiff must prove municipal liability if they wish to pursue claims against a government employer. The employer’s right to control employees is not grounds for municipal liability.

Does Inaction by a Government Body Create Grounds for Liability?

Sometimes an individual might suffer due to a government’s lack of action, but that does not create a liability.

In 1986, the court gave a decision in the Pembaur v. City of Cincinnati case where they held that municipal liability arises when a government body that is responsible for creating an “official policy” decides to follow a course of action.

Inaction by a government body is not enough under §1983 for deprivation of rights to constitute a liability unless those responsible for making the policies deliberately decide not to take action against misconduct.

State officials can be liable when they put someone in a dangerous position, one that they would not otherwise have faced. In 1989, the Court of Appeals concerning City of Canton v. Harris stated that a municipality or government is liable for failing to properly train their police force where there is clear evidence presented by the plaintiff that the municipality or government acted recklessly and negligently in training their police force, resulting in the plaintiff’s deprivation of constitutional rights.

However, in the case of Davidson v. Cannon, the Federal District Court held that the respondent’s negligence deprived the petitioner of his liberty interest in personal security and that it was without due process. But the Court of Appeals reversed the decision, stating that the due process clause is not triggered by a lack of due care by state officials.

In civil rights cases, there is a lot of debate over acting “under color of,” a phrase that refers to the misuse of power carried out by state authorities. The law remedies the wrongdoings committed by government employees and agents against citizens. The law guarantees protection to the citizens from scenarios when the government misuses its power or authority.

If the supervisory officials and governmental agencies fail to train or control the individual employees who deprive a plaintiff of their civil rights, the court must decide on the liability. However, if there is no direct link between the actions of the individual employees and their supervisors, there will be no liability under the Civil Rights Act.

For example, in the case of City of Canton v. Harris, the Supreme Court held that there is only liability when the failure to train police officers results in indifference to constitutional rights.

Can the Plaintiff Receive Judgement Against a Governmental Employer?

Since there is no vicarious liability in civil rights law, it can be very challenging to prove that the governmental employer is responsible for the wrongdoings of a governmental employee. In the majority of these cases, the plaintiff can receive a judgment against the employee but not the employer.

However, suppose the plaintiff proves that the governmental employee was abusing their power while also acting within the roles and responsibilities assigned to them. In that case, the court can hold the government responsible even if the judgment is not directly against the government.

In such situations, the government must reimburse the employee and compensate the plaintiff by paying the full judgment.

The court may award punitive damages after considering several factors, such as:

  • How bad the defendant’s misconduct is.
  • The difference between the actual or possible harm suffered by the plaintiff and the jury’s punitive damage amount.
  • The disparity between the jury’s punitive damages and the civil penalties authorized.

Can the Court Award Attorney Fees?

Civil rights lawsuits can be expensive, but they may be the only legal option to resolve a dispute. Those pursuing a civil rights lawsuit may be wondering whether the court has the authority to award attorney fees just like it does punitive damages.

A plaintiff may receive an attorney fee award in their civil rights claim. Under the Civil Rights Attorney’s Fees Award Act of 1976, the trial court can award reasonable attorney’s fees to parties who prevail in a §1983 civil action.

In some cases, the attorney fee award may exceed the total damages awarded by the jury. In the case of City of Riverside v. Rivera, the jury awarded $46,650 for federal claims and $20,050 for state claims for the city and its state forces violating the federal civil rights statute of the plaintiffs.

The District Court then awarded $245,456 in attorney fees, but the Supreme Court returned the case for reconsideration. After further hearings, the District Court again concluded the award of $245,456 in attorney fees to the plaintiff, stating that the attorney fees award could exceed the damages awarded.

Is There Any Liability for Failure to Protect?

The federal civil rights statute allows an arrested person to sue federal officers for violating their Fourth Amendment rights because the amendment protects everyone from unreasonable arrests.

Due Process and Civil Liability

The Constitution does not hold law enforcement officers accountable for protecting citizens upon exposure to danger. That said, the person cannot file a lawsuit against the police officer on the grounds that the officer failed to protect the person from receiving injuries.

However, two separate doctrines provide grounds for a lawsuit, which include:

  • Special relationship
  • State-created danger.

When Does a Special Relationship Liability Exist?

There is a special relationship between a person and a law enforcement officer when the state assumes custody of the person, triggering the duty to protect. For example, the state has control over the prisoners in public jail, and therefore it becomes their responsibility to provide them protection.

Special relationship liability claims are often pursued against correctional officers by prisoners or their surviving family members. However, other individuals in the custody of a local police officer or those under arrest can also file claims against the relevant law enforcement officer.

For example, suppose a police officer handcuffs an individual, arrests them, and places them in the back of their police car to transport them to the police station but fails to secure the person with a seat belt. In that case, any accident at the time causing injuries to the individual may make the agency or officer liable due to a process violation. This is because the prisoner is unable to put their seat belt on, which means that the police officer has the responsibility to secure the prisoner to prevent any foreseeable danger to them.

When Does a State-created Danger Liability Exist?

State-created danger liability is more common than special relationship liability as it pertains to a person who is not in police custody but suffers injuries or even death due to a police officer or another human or natural hazard, either because of the actions of the police or the failure of the police to take the right action during an obviously dangerous circumstance.

When the action of the state places an individual in danger, it creates grounds for liability. If an officer gets involved in an accident and their involvement or action results in direct danger to another person, they could face liability for creating a dangerous situation.

Let’s look at some “state-created danger” cases to help illustrate how this doctrine works.

Wood v. Ostrander

In Washington, a couple of troopers stopped a car at around 2:30 am and arrested the driver for DUI. They left the driver’s wife on the road alone in a high-crime area to walk back to her home since the troopers impounded the car. On the way back, she came across a man in a car who agreed to safely drop her off at home. However, the man took her to a secluded place where he raped her.

The Court of Appeals ruled that the actions of the troopers created grounds for liability based on the state-created danger since their actions put the passenger (driver’s wife) in grave danger and she wouldn’t have experienced the assault if it weren’t for the police intervention.

Kniepp v. Tedder

A police officer in Philadelphia detained a man walking home with his drunk wife at night during the winter. Since the home was close by, the police officers allowed the man to go back home to take care of his child while they detained and questioned the wife. After a while, the officers released the woman, knowing that she was completely intoxicated and could not walk straight. The released woman fell down an embankment, resulting in a serious brain injury.

The court decided that she had the constitutional right to sue the police officer who detained her and let her go, knowing fully well that she could not take care of herself due to intoxication. The police officers had also separated her from her husband, who was already assisting her on their way back home. Releasing the drunk woman alone increased the risk of accidents and injuries.

Munger v. Glasgow

A bar called in a couple of police officers to eject Lance Munger, an aggressive drunk man. The police escorted the drunk man outside of the bar and did not let Munger re-enter the bar or get into his truck. Munger had no other option but to walk in the chilly weather back home while wearing jeans and a T-shirt.

On his way back home, just a couple of blocks away from the bar, Munger froze to death. Munger’s parents decided to sue the police, and the court stated that since it was the police that placed Munger in a more dangerous situation than they found him in, it created grounds for liability.

Kennedy v. Ridgefield Federal Court Case

A 13-year-old unstable neighbor molested Kennedy’s 9-year-old daughter, and due to fear that the kid was unstable, the Kennedy’s requested the police investigating the case to let them know before interviewing the boy so that they would take broad, but necessary precautions to meet the challenges.

However, the police failed to do so and contacted the boy directly without letting the Kennedy’s know. The Kennedy’s expressed their fear to the officer, who guaranteed their protection by offering extra patrols around their house. That night, the 13-year-old boy entered his neighbor’s home and shot Mr. Kennedy dead and wounded his wife.

The Court of Appeals stated that the police gave assurances that they did not keep which prevented the Kennedy’s from taking any precautions putting them in grave danger than they otherwise would have faced.

“we conclude that, on this summary judgment record, Shields unreasonably violated Kennedy’s clearly established constitutional right. Under the state-created danger doctrine, a police officer may be liable for actions that create or increase a known or obvious danger to an individual that he or she would otherwise not face. Because we hold that this doctrine was clearly established at the time the events of this case took place, and that Shields’s actions both created and aggravated the risk Plaintiff faced from Burns on the night of September 24, 1998, the district court’s denial of Shields’s motion for summary judgment based on qualified immunity is AFFIRMED.” (Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006.)

When Do Police Officers Owe a Duty?

Individuals in the custody of the police have a “special relationship” that creates the police’s responsibility to protect and reasonably care for them. Failing to do so could result in liability.

In the majority of states, the police have immunity against tort damage resulting from the failure to protect residents.

When a Police Officer Gets Involved, They Can Assume a Duty

However, in situations where the police get involved, their actions or inability to take action could place others in danger, creating grounds for state-created danger liability.

Schedule a Free Consultation with Ehline Law Civil Rights Lawyers

When a serious constitutional violation occurs, we feel our responsibility is to protect our clients and commit to achieving justice. Many civil rights cases require expert opinions from medical and correctional experts. Civil litigation costs, including the costs of these experts, can often reach tens of thousands of dollars. This does not include attorney fees. Fortunately, all our attorneys work on a contingency fee basis, allowing our clients to secure top legal representation without any upfront costs.

If you were a victim of a civil rights violation and suffered injuries, contact us at + (833) LETS-SUE for a free consultation with our legal experts. Contact us now or visit any of our law offices to learn about your civil rights and your legal options.


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Michael Ehline

Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients. We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.