The Police Have "NO AFFIRMATIVE DUTY" TO PROTECT US
This makes it very clear - the burden to defend and or use deadly force, is a RIGHT that lies with you personally to act accordingly and approriately should you fear for your life and/or limb.
Affirmative duty to protect. Cf. Reciprocal obligations;
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 1989 (1989) (There is no merit to petitioner's contention that the State's knowledge of his danger and expressions of willingness to protect him against that danger established a "special relationship" giving rise to an affirmative constitutional duty to protect. While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process [489 U.S. 189, 190] Clause, to provide adequate protection, see Estelle v. Gamble, 429 U.S. 97; Youngberg v. Romeo, 457 U.S. 307, 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 limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.); http://laws.findlaw.com/us/489/189.html
Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982) (There is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment, or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let the people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.); (No duty to protect) = Rule 12(b)(6) Motion to Dismiss;Cf. Reciprocial obligations;
Warren v. District of Columbia (444 A.2d 1, 1981) ((O)fficial 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 citizen ... a publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order.); http://forums.philosophyforums.com/showthread.php?t=6260
Hartzler v. City of
Davidson v. City of
Westbrooks v. State, 173 Cal.App.3d 1203, 219 Cal.Rtr. 674 (1985) (The widow and sons of a motorist who drove into the void where a collapsed bridge had been, brought action against the State, county, and county deputy sheriff. The California Department of Transportation (Cal Trans) was aware that a violent storm with heavy rains had caused a bridge on State route 118 to collapse. A county deputy sheriff had observed the beginning of the collapse, reported it and requested assistance from Cal Trans. A jury award of $1,300,000 was reversed in part by the Court of Appeal which held: (1) the county deputy sheriff had no duty to warn drivers that the state highway bridge had collapsed during the storm, and his efforts to warn drivers did not in any way increase the risk of harm to users of the highway, and therefore the county was not liable to motorist's wife and children; and (2) the judgment was upheld against the state because the Cal Trans was notified at 1:52 a.m. and at 2:35 a.m., but no Cal Trans personnel nor CHP officer appeared at the scene until 5:45 a.m., and that such delay was unreasonable.);
Ne Casek v. City of
Susman v. City of
Antique Arts Corp. v. City of
The dispatch message to the units in the field was at 3:43 p.m., and a police unit arrived at the scene of the robbery at 3:44 p.m. The delay in the transmission of the dispatch enabled the robbers to complete the robbery and escape with jewelry and merchandise in the amount of $49,000. The Court of Appeal held that Govt. Code section 846 provides for immunity if no police protection is provided; or, if police protection is provided, but that protection is not sufficient.. "The statutory scheme makes it clear that failure to provide adequate police protection will not result in governmental liability, nor will a public entity be liable for failure to arrest a person who is violating the law. The statutory scheme shows legislative intent to immunize the police function from tort liability from the inception of its exercise to the point of arrest, regardless of whether the action be labeled ‘discretionary' or ‘ministerial.'");
By LINDA GREENHOUSE
Published: June 28, 2005
The decision, with an opinion by Justice Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader Ginsburg, overturned a ruling by a federal appeals court in
For hours on the night of June 22, 1999, Jessica Gonzales tried to get the Castle Rock police to find and arrest her estranged husband, Simon Gonzales, who was under a court order to stay 100 yards away from the house. He had taken the children, ages 7, 9 and 10, as they played outside, and he later called his wife to tell her that he had the girls at an amusement park in
Ms. Gonzales conveyed the information to the police, but they failed to act before Mr. Gonzales arrived at the police station hours later, firing a gun, with the bodies of the girls in the back of his truck. The police killed him at the scene.
The theory of the lawsuit Ms. Gonzales filed in federal district court in
The district court and a panel of the United States Court of Appeals for the 10th Circuit dismissed the suit, but the full appeals court reinstated it and the town appealed. The Supreme Court's precedents made the appellate ruling a challenging one for Ms. Gonzales and her lawyers to sustain.
A 1989 decision, DeShaney v.
But the majority on Monday saw little difference between the earlier case and this one, Castle Rock v. Gonzales, No. 04-278. Ms. Gonzales did not have a "property interest" in enforcing the restraining order, Justice Scalia said, adding that "such a right would not, of course, resemble any traditional conception of property."
Although the protective order did mandate an arrest, or an arrest warrant, in so many words, Justice Scalia said, "a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes."
But Justices Stevens and Ginsburg, in their dissenting opinion, said "it is clear that the elimination of police discretion was integral to
"The court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding
Organizations concerned with domestic violence had watched the case closely and expressed disappointment at the outcome. Fernando LaGuarda, counsel for the National Network to End Domestic Violence, said in a statement that Congress and the states should now act to give greater protection.
In another ruling on Monday, the court rebuked the United States Court of Appeals for the Sixth Circuit, in
The 5-to-4 decision,
After his conviction and the failure of his appeals in state court, Mr. Thompson, with new lawyers, had gone to federal district court seeking a writ of habeas corpus on the ground that his initial lawyers had been constitutionally inadequate. The new lawyers obtained a consultation with a psychologist, who diagnosed Mr. Thompson as schizophrenic.
But the psychologist's report was not included in the file of the habeas corpus petition in district court, which denied the petition. It was not until the Sixth Circuit and then the Supreme Court had also denied his petition, making the case final, that the Sixth Circuit reopened the case, finding that the report was crucial evidence that should have been considered.
In overturning that ruling in an opinion by Justice Anthony M. Kennedy, the majority said the appeals court had abused its discretion in an "extraordinary departure from standard appellate procedures." Chief Justice William H. Rehnquist and Justices Scalia, Clarence Thomas and Sandra Day O'Connor joined the opinion.
In a dissenting opinion, Justice Stephen G. Breyer said the majority had relied on rules to the exclusion of justice. Judges need a "degree of discretion, thereby providing oil for the rule-based gears," he said. Justices Stevens, Ginsburg and David H. Souter joined the dissent.
The Court's Decision: Appellants Carolyn Warren, Miriam Douglas, and Joan Taliaferro in No. 79-6, and appellant Wilfred Nichol in No. 79-394 sued the
The division unanimously concluded that appellant
Appeal No. 79-6
The Gruesome Facts of the Case: In the early morning hours of March 16, 1975, appellants Carolyn Warren, Joan Taliaferro, and Miriam Douglas were asleep in their rooming house at
Warren and Taliaferro heard
Meanwhile, Warren and Taliaferro crawled from their window onto an adjoining roof and waited for the police to arrive. While there, they saw one policeman drive through the alley behind their house and proceed to the front of the residence without stopping, leaning out the window, or getting out of the car to check the back entrance of the house. A second officer apparently knocked on the door in front of the residence, but left when he received no answer. The three officers departed the scene at 6:33 a.m., five minutes after they arrived.
Warren and Taliaferro crawled back inside their room. They again heard
Believing the police might be in the house,
Appellants' claims of negligence included: the dispatcher's failure to forward the 6:23 a.m. call with the proper degree of urgency; the responding officers' failure to follow standard police investigative procedures, specifically their failure to check the rear entrance and position themselves properly near the doors and windows to ascertain whether there was any activity inside; and the dispatcher's failure to dispatch the 6:42 a. m. call.
Appeal No. 79-394
No Duty to Protect: On April 30, 1978, at approximately 11:30 p.m., appellant Nichol stopped his car for a red light at the intersection of Missouri Avenue and Sixteenth Street, N.W. Unknown occupants in a vehicle directly behind appellant struck his car in the rear several times, and then proceeded to beat appellant about the face and head breaking his jaw.
A Metropolitan Police Department officer arrived at the scene. In response to the officer's direction, appellant's companion ceased any further efforts to obtain identification information of the assailants. When the officer then failed to get the information, leaving Nichol unable to institute legal action against his assailants, Nichol brought a negligence action against the officer, the Metropolitan Police Department and the
The trial judges correctly dismissed both complaints. In a carefully reasoned Memorandum Opinion, Judge Hannon based his decision in No. 79-6 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." See p. 4, infra. 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. Holding that no special relationship existed between the police and appellants in No. 79-6, Judge Hannon concluded that no specific legal duty existed. We hold that Judge Hannon was correct and adopt the relevant portions of his opinion. Those portions appear in the following Appendix.[fn1]
Judge Pryor, then of the trial court, ruled likewise in No. 79-394 on the basis of Judge Hannon's opinion. In No. 79-394, a police officer directed Nichol's companion to cease efforts to identify the assailants and thus to break off the violent confrontation. The officer's duty to get that identification was one directly related to his official and general duty to investigate the offenses. His actions and failings were solely related to his duty to the public generally and possessed no additional element necessary to create an overriding special relationship and duty.[fn2]
Here the effort to separate the hostile assailants from the victims -- a necessary part of the on-scene responsibility of the police -- adds nothing to the general duty owed the public and fails to create a relationship which imposes a special legal duty such as that created when there is a course of conduct, special knowledge of possible harm, or the actual use of individuals in the investigation. See Falco v. City of New York, 34 A.D.2d 673, 310 N.Y.S.2d 524 (App. Div. 1970), aff'd, 29 N.Y.2d 918, 329 N.Y.S.2d 97, 279 N.E.2d 854 (1972) (police officer's Page 4 statement to injured motorcyclist that he would obtain name of motorist who struck the motorcycle was a gratuitous promise and did not create a special legal duty); Jackson v. Heyman, 126 N.J. Super. 281, 314 A.2d 82 (Super.Ct.Law Div. 1973) (police officers' investigation of vehicle accident where pedestrian was a minor child did not create a special legal duty to child's parents who were unsuccessful in their attempt to recover damages because police failed to identify drivers of vehicle). We hold that Judge Pryor did not err in dismissing No. 79-394 for failure to state a claim.
In either case, it is easy to condemn the failings of the police. However, the desire for condemnation cannot satisfy the need for a special relationship out of which a duty to specific persons arises. In neither of these cases has a relationship been alleged beyond that found in general police responses to crimes. Civil liability fails as a matter of law.