The Duty to Protect

The mass murder of nineteen children and two teachers at an elementary school in Uvalde, Texas, on May 24th has generated the usual post-massacre actions: politicians invoke thoughts and prayers for the victims in lieu of addressing the problem; Republicans urge the fielding of more guns to prevent murders using the guns already in use and invoke the need for the mental health care they refuse to fund; Democrats urge increased controls and the banning of certain classes of weapons; and gun enthusiasts and the conservative media wring their collective hands and wail that there's nothing we can do to prevent such mass murders. The general progression of events follows Bilbo's First Law of Temporal Suitability, depicted here:

There is, however, one aspect of the aftermath of the Uvalde massacre that is somewhat different from previous such bloodbaths ... a focus, however fleeting, on the activities of the police who responded to the scene and their delay in taking action to kill the murderer and save at least some of the victims. Some observers have noted that the police were outgunned by the murderer, who was armed with a military-style semiautomatic rifle, and were afraid to rush him until heavier firepower had arrived. The larger story, though, is that the police are not required to protect you.

In 1981, two separate lawsuits were filed against the Washington, DC, Metropolitan Police for "negligent failure to provide adequate police services" in that police officers who responded to a 911 call failed to intervene to stop a brutal sexual assault. In the original decision rejecting the lawsuits, the trial judge relied on "the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen." The general rule, according to the published decision, is that

"The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists."

The final decision in the appeal of this case (Warren v District of Columbia) upheld the original ruling, with the comment that

"notwithstanding our sympathy for appellants who were the tragic victims of despicable criminal acts, we affirm the judgments of dismissal (of the original case)."

But wait ... there's more!

The Supreme Court decided in 2004 in the case of Castle Rock v. Gonzalez that local police were not required to enforce the terms of a restraining order against a man who, ultimately, murdered the children his wife had sought to protect by means of the order. The court's decision included this justification:

"Respondent did not, for Due Process Clause purposes, have a property interest in police enforcement of the restraining order against her husband."

Apparently, in lawyer-speak a mother does not have a "property interest" in the safety of her children.

A federal judge also dismissed a lawsuit filed by 15 students who said they suffered trauma during the 2018 mass murder at Margory Stoneman Douglas High School in Parkland, Florida, where 17 students and staff members were murdered and another 17 were injured. The judge ruled that a "special relationship" did not exist for protection of the students, because schoolchildren are not in a "custodial relationship" with school or law enforcement officials which would require their protection.*

So, riddle me this, Batman: if the police are under no "specific legal duty" to protect you from a crime "absent a special relationship" with you as an individual, why do we have police forces at all? Why does almost every police car in the country have some variation on the slogan "To Protect and Serve" painted on it? 

Are the most extreme zealots of gun rights correct in maintaining that you have to pack maximum iron because only you can protect yourself? Are the "defund the police" zealots of the far left correct in maintaining that the money we spend on heavily-armed police could be better spent on correcting the conditions that make heavily-armed police necessary?

Further, what legally constitutes a "special relationship" between you as an individual and your police department that would establish a "specific legal duty" for that department - paid for by your taxes - to protect you and your family? 

We Americans have always had a tense relationship with our police, because many of us view them almost as an occupying force intent on limiting our rights ... at least until we call upon them for the protection they are not actually obligated to provide. Our black and brown fellow citizens, in particular, have little reason to trust or rely upon police who have all-too-often been guilty of horrific violence and repression against them, often without any significant repercussions.

Do our police have a duty to protect us? The courts say no. I say yes. 

What do you think? I'm anxious in particular to hear the opinion of my friends in the legal profession. I personally think that all the legal hairsplitting in Warren v. DC and Castle Rock v Gonzalez is an indefensible outrage no thinking citizen should accept. But then, what do I know? ... I'm just an outraged, curmudgeonly linguist who thinks that police really should protect us, even at the risk of their own lives. After all, if they're not willing to protect the innocent, perhaps they should seek safer employment.

Have a good day. Be outraged.

More thoughts coming. 

Bilbo

* I can't make this stuff up.