In the discussion thread: National Review says it is impossible to end routine gun massacres, given 2nd amendment [View all]
Response to white_wolf (Reply #15)
Wed Dec 19, 2012, 10:43 PM
X_Digger (16,145 posts)
16. An individual? Nope. "the public"? Yes.
In multiple states, at the local, state, and federal level, police have not been held accountable for failing to protect individuals.
South v. Maryland (1858)
Cocking v. Wade (1896)
Riss v. City of New York - 1967
Brief Fact Summary
Plaintiff was harassed by a rejected suitor, who claimed he would kill or seriously injure her if she dated someone else. Plaintiff repeatedly asked for police protection and was ignored. After the news of her engagement, the plaintiff was again threatened and called the police to no avail. The next day, a thug, sent by the rejected suitor, partially blinded the plaintiff and disfigured her face.
Rule of Law and Holding
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.
Keane v. Chicago, 98 Ill. App.2d 460, 240 N.E.2d 321 (1st Dist. 1968)
Silver v. Minneapolis, 170 N.W.2d 206 (Minn. 1969)
Antique Arts Corp. v. City of Torrance (1974)
Hartzler v. City of San Jose, 46 Cal. App.3d 6 (1st Dist. 1975)
The first amended complaint alleged in substance: On September 4, 1972, plaintiff's decedent, Ruth Bunnell, telephoned the main office of the San Jose Police Department and reported that her estranged husband, Mack Bunnell, had called her, saying that he was coming to her residence to kill her. She requested immediate police aid; the department refused to come to her aid at that time, and asked that she call the department again when Mack Bunnell had arrived.
Approximately 45 minutes later, Mack Bunnell arrived at her home and stabbed her to death. The police did not arrive until 3 a.m., in response to a call of a neighbor. By this time Mrs. Bunnell was dead.
(1) Appellant contends that his complaint stated a cause of action for wrongful death under Code of Civil Procedure section 377, and that the cause survived under Probate Code section 573. The claim is barred by the provisions of the California Tort Claims Act (Gov. Code, § 810 et seq.), particularly section 845, which states: "Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service."
Sapp v. Tallahassee, 348 So.2d 363 (Fla. App. 1st Dist.), cert. denied 354 So.2d 985 (Fla. 1977); Ill. Rec. Stat. 4-102
Jamison v. Chicago, 48 Ill. App. 3d 567 (1st Dist. 1977)
Wuetrich V. Delia, 155 N.J. Super. 324, 326, 382, A.2d 929, 930 cert. denied 77 N.J. 486, 391 A.2d 500 (1978)
Stone v. State, 106 Cal.App.3d 924, 165 Cal Rep. 339 (1980)
Warren v. District of Columbia, 444 A.2d 1 (D.C.App 1981)
The Court, however, does not agree that defendants owed a specific legal duty to plaintiffs with respect to the allegations made in the amended complaint for the reason that the District of Columbia appears to follow the 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. This uniformly accepted rule rests upon 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.
Chapman v. Philadelphia, 290 Pa. Super. 281, 434 A.2d 753 (Penn. 1981)
Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982)
Davidson v. Westminster, 32 Cal.3d 197, 185, Cal. Rep. 252; 649 P.2d 894 (1982)
Morgan v. District of Columbia, 468 A.2d 1306 (D.C.App. 1983) (Only those in custody are deserving of individual police protection)
Morris v. Musser, 84 Pa. Cmwth. 170, 478 A.2d 937 (1984)
Calogrides v. Mobile, 475 So. 2d 560 (Ala. 1985); Cal Govt. Code 845
Ashburn v. Anne Arundel County (1986)
In 1986, the Maryland Court of Appeals was again presented in Ashburn v. Anne Arundel County with an action in civil liability involving the failure of law enforcement to enforce the law. In this case, a police officer, Freeberger, found an intoxicated man in a running pickup truck sitting in front of convenience store. Although he could have arrested the driver, the police officer told the driver to pull the truck over to the side of the lot and to discontinue driving that evening. Instead, shortly after the law enforcement officer left, the intoxicated driver pulled out of the lot and collided with a pedestrian, Ashburn, who as a direct result of the accident sustained severe injuries and lost a leg. After Ashburn brought suit against the driver, Officer Freeberger, the police department, and Anne Arundel County, the trial court dismissed charges against the later three, holding Freeberger owed no special duty to the plaintiff, the county was immune from liability, and that the police department was not a separate legal entity.
The Court of Appeals further noted the general tort law rule that, "absent a 'special relationship' between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not rely against police officers." Using terminology from the public duty doctrine, the court noted that any duty the police in protecting the public owed was to the general public and not to any particular citizen..
DeShaney v. Winnebago County, 489 U.S. 189 (1989)
Castle Rock v. Gonzales, 545 U.S. 748 (2005)
During divorce proceedings, Jessica Gonzales, a resident of Castle Rock, Colorado, obtained a restraining order against her husband on June 4, 1999, requiring him to remain at least 100 yards from her and their three daughters except during specified visitation time. On June 22, at approximately 5:15 pm, her husband took possession of the three children in violation of the order. Gonzales called the police at approximately 7:30 pm, 8:30 pm, 10:10 pm, and 12:15 am on June 23, and visited the police station in person at 12:40 am on June 23, 1999. However, the police took no action, despite the husband's having called Gonzales prior to her second call to the police and informing her that he had the children with him at an amusement park in Denver, Colorado. At approximately 3:20 am on June 23, 1999, the husband appeared at the Castle Rock police station and instigated a fatal shoot-out with the police. A search of his vehicle revealed the corpses of the three daughters, whom the husband had killed prior to his arrival.
The Court's majority opinion by Justice Antonin Scalia held that enforcement of the restraining order was not mandatory under Colorado law; were a mandate for enforcement to exist, it would not create an individual right to enforcement that could be considered a protected entitlement under the precedent of Board of Regents of State Colleges v. Roth; and even if there were a protected individual entitlement to enforcement of a restraining order, such entitlement would have no monetary value and hence would not count as property for the Due Process Clause.
Justice David Souter wrote a concurring opinion, using the reasoning that enforcement of a restraining order is a process, not the interest protected by the process, and that there is not due process protection for processes.
Gonzales v City of Bozeman (2009)
On the evening of April 3, 2005, Gonzales was the lone clerk at a Town Pump store on East Main Street in Bozeman, Montana. At 9:55 p.m. a man later identified as transient Jose Mario Gonzalez-Menjivar entered the store wearing a ski cap. He held a knife to Gonzales' throat and demanded money. Gonzales was able to surreptitiously dial 911 on her cell phone shortly after Menjivar entered the store but could not talk to anyone and never knew whether the call went through. In the meanwhile, Gonzales began removing money from the safe, which was limited by a security device to dispensing $100 every two or three minutes.
Meanwhile, Leah will no doubt be dumbfounded by the Court's decision. During the course of a robbery, she managed surreptitiously to call 911. The call went through, the dispatchers ascertained what was occurring and where, and the police were sent to Leah's location. Upon arriving, they established a perimeter around the Town Pump, determined that the door was unlocked, and observed two individuals inside. They ascertained that one of the individuals (Menjivar) was directing the other individual (Leah). When the call from Leah's cell phone was dropped, the dispatchers established a connection on the store's land line. They told the officers that the male (Menjivar) was "threatening" the female (Leah) and that she was "crying" and "very frightened." The police saw Menjivar and Leah enter the restroom, where it turns out Leah was then raped. They arrested Menjivar when he left the store of his own volition. They then threatened Leah with a dog, at which point she exited the store, barefoot and wearing her Town Pump apron. They forced her to the ground and handcuffed her—although she was six months pregnant and one of the officers had recognized who she was.
Leah claims the officers acted negligently and unreasonably, but the Court holds that the officers owed her no duty to exercise reasonable care when they responded to her distress call. The Court explains that because the officers owed all members of the public a duty to protect and preserve the peace, they did not owe this duty to any members of the public. Opinion, ¶ 20. If Leah is confused by this, I, for one, do not blame her. Indeed, the Court's decision makes no sense. We have now ruled, as a matter of law, that when the police respond to a crime in progress, they have no duty to protect the victim of the crime because they have a duty to protect everybody. Thus, the victim is simultaneously entitled and not entitled to reasonable police protection. We have also ruled, as a matter of law, that regardless of expert evidence that the police breached the appropriate standard of care, they are nonetheless immune from liability for such breach.
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An individual? Nope. "the public"? Yes.
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