All today's blogsite entries by herein are relevant to this issue; .....rule of law that the police owe no duty of protection to individual citizens.....
Warren v DC
Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981)
Back in October 2008, I read a piece about this issue in the excellent firearms blog LearnAboutGuns.com. Eric Puryear, an attorney and gun owner, wrote in his blog:
A couple court cases illustrate this longstanding rule of law that the police owe no duty of protection to individual citizens, even when the police royally mess up and fail to respond for hours after being called several times.
In the blog post, Puryear mentioned two court cases, Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981) and Riss v. New York (22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897). Earlier that year, Wayne LaPierre, Executive President of the National Rifle Association, talked about the infamous Warren case on the NRA’s Institute for Legislative Action’s website. LaPierre wrote in April 2008:
The story of the plight of disarmed D.C. residents really begins on the night of March 16, 1975, when three women, sharing a townhouse, were awakened by the sound of their door being kicked in. This was no ordinary burglary or home invasion; this was a horrific, unspeakable crime.
Two of the three roommates had rooms upstairs. They were awakened by the screaming of their friend downstairs who was being beaten, raped and sodomized by two men.
Carolyn Warren called the police and was told help was on the way. She and her other upstairs roommate watched in horror as a police car passed their home, merely slowing down. They called the police a second time. This time, there was no response at all. After an hour, hearing no sounds from the floor below, they called down to their friend, but merely alerted the rapists to their presence.
After that, all three women were forced to endure 14 unspeakable hours of sexual torture.
The women sued the District of Columbia and after two years-during which time D.C. instituted its gun ban-they lost. The case is Warren v. District of Columbia.
The D.C. Superior Court ruled, “ … a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.” (Emphasis added.)
Thus the rule that the District had no duty to protect its individual citizens was in place when, in July 1976, the D.C. City Council enacted its draconian gun ban.
If the lower court ruling in Ms. Warren’s case was devastating to her and every law-abiding resident of the District of Columbia, the ruling of the D.C. Court of Appeals, 444 A.2d 1(D.C App. 1981), was worse:
“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.” (Emphasis added.)
It begs the basic question: If the police have no duty to protect individuals in their homes, who does?
Then there’s Riss v. New York. In New York City in 1959, Linda Riss was harassed by an ex-boyfriend, who claimed he would kill or severely injure her if she dated someone else. Riss repeatedly asked for police protection, without success. When her ex learned of her engagement to another man, he threatened her. Once again, Riss called the police for help- to no avail. The next day, Linda Riss was attacked by a thug sent by the ex-boyfriend, a caustic chemical leaving her partially-blind and with a permanently-disfigured face.
In the ensuing lawsuit, the New York Court of Appeals ruled that the municipality does not have a duty to provide police protection to an individual. It has a duty to the public as a whole, but no one in particular.
Puryear commented in his blog:
These rulings, and countless others, make clear that the police do not have a duty to protect a citizen, even when that citizen has done everything in their power to summon the police for help. Given that fact, I would urge my fellow law abiding citizens to have a gun so that they can defend themselves, rather than being a victim.
More next time.
(Editor’s note: Readers can access Part 2 here.)
Two cases examined as part of that discussion were Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981) and Riss v. New York (22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897), which showed the police has the duty to protect the public as whole- but not the individual. Today, I’d like to wrap things up by talking about a legal article by Jack Ryan, J.D., a Rhode Island attorney with 20 years law enforcement experience as a police officer with the Providence (RI) Police Department. Ryan wrote “LEO’s Duty to Protect Persons from 3rd Party Harm,” which appears on the Legal Liability & Risk Management Institute (LLRMI) website, a division of the Indianapolis-based Public Agency Training Council (PATC). From the piece:
The question that is frequently asked is: Under what circumstances does the state or municipal entities have a constitutional duty to protect citizens from violence at the hands of private actors? The general answer to this question is that there is no constitutional duty to protect free citizens. The only clear case of a duty to protect is when a citizen is in the custody of a state or municipality.
Ryan talked about DeShaney v. Winnebago County, 489 U.S. 189 (1989), which entailed a tragic case of child abuse. In 1980, Winnebago County, Wisconsin, resident Randy DeShaney gained custody of his son, Joshua DeShaney (born 1979), through a Wyoming divorce court. In January 1983, a hospital visit and police report of child abuse prompted the Winnebago County Department of Social Services (DSS) to obtain a court order to keep Joshua in the hospital’s custody. Juvenile court dismissed the case and the boy was returned to the custody of his father. The DSS entered an agreement with the boy’s father, and five times throughout 1983, a DSS social worker visited the DeShaney home and recorded suspicion of child abuse and that the father was not complying with the agreement’s terms. However, no action was taken. In addition, the DSS took no action to remove the boy from his father’s custody after a hospital reported child abuse suspicions to the agency in November 1983. By March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but suffered from brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded.
Joshua DeShaney’s mother filed a lawsuit on his behalf against Winnebago County, the Winnebago County DSS, and DSS employees under 42 U.S.C. § 1983. The lawsuit claimed that by failing to intervene and protect him from violence about which they knew or should have known, the agency violated Joshua’s right to liberty without the due process guaranteed to him by the Fourteenth Amendment to the United States Constitution.
The United States District Court for the Eastern District of Wisconsin issued a summary judgment against Joshua and his mother, who appealed to the Seventh Circuit Court of Appeals. In an opinion authored by Judge Richard Posner, the appellate court affirmed the summary judgment, and the Supreme Court granted certiorari on March 21, 1988. The court ruled 6-3 to uphold the appeals court’s grant of summary judgment. Ryan explained:
The U.S. Supreme Court held that the constitution is not a source of any affirmative obligation on the state or its subdivisions to protect its citizens. Since “the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.” The Court did note that when “the State takes a person into custody and holds him there against his will, the Constitution imposes on it a corresponding duty to assume some responsibility for his safety and general well-being…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.” In Joshua DeShaney’s case the Court noted that the county had done nothing to create Joshua’s predicament or to make him more vulnerable to it. This note by the Court left an opening which some courts have used to find liability based on a violation of due process.
The Deshaney case, decided in 1989, remains the controlling law on the duty of government actors to protect citizens who fall prey to harm by third parties.
What can be taken away from all this? Warren v. District of Columbia and Riss v. New York demonstrate that the police have a duty to protect the public as a whole, but not the individual (unless a special relationship exists). In DeShaney v. Winnebago County, the highest court in the land confirmed there is no constitutional duty to protect the individual citizen (except when that citizen is in the custody of a state or municipality).
None of this should be taken to mean that law enforcement, in its entirety, is somehow “bad” or even useless. Police have an important role to play in American society protecting the general public. And I, for one, remain grateful and supportive of their efforts. However, the question still remains:
If the police have no duty to protect individuals, who does?
That answer should be all too obvious by now.
