The sudden recurrence of a spate of police shootings of black people has once again raised the question of the relationship between the police and the public. The slogan of many police departments in the US consists of variations on “To Serve and Protect”. So you would think that if you were being threatened or attacked by someone and the police were called, they would be obliged to come to your defense. But I learned recently that that is not the case. The duty of the police is to protect only the public at large and that may or may not include protecting you as an individual.
One case that was referred to me was Warren v. District of Columbia (1981) where the DC Circuit Court of Appeals issued a 4-3 ruling in a case where three women were brutally raped in their homes and the police officers who were called twice during the crime by two of the people hiding from the attackers did nothing more than knock on the door of the house and then leave within five minutes when there was no response. You can read the appalling facts of the case in the above link.
The police were sued for “negligent failure to provide adequate police services” but the majority opinion ruled against the women.
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.
In 2005, the US Supreme Court similarly ruled 7-2 in a different case.
The Supreme Court ruled on Monday that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.
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 Colorado. The appeals court had permitted a lawsuit to proceed against a Colorado town, Castle Rock, for the failure of the police to respond to a woman’s pleas for help after her estranged husband violated a protective order by kidnapping their three young daughters, whom he eventually killed.
The issue in the Colorado case was whether in the Fourteenth Amendment’s statement that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”, the inaction of the police constituted a deprivation of the victim’s ‘property’.
In writing the majority opinion, justice Antonin Scalia said:
As the Court of Appeals recognized, we left a similar question unanswered in ., 489 U. S. 189 (1989), another case with “undeniably tragic” facts: Local child-protection officials had failed to protect a young boy from beatings by his father that left him severely brain damaged. Id., at 191–193. We held that the so-called “substantive” component of the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors.”
One might think that by paying taxes that go towards supporting the police force, there was an implicit contract that the police would have to protect you. But while a contract with a private security company would be legally enforceable and the company sued for being negligent in providing the required protection, the court said that there was no similar contract, implied or otherwise, between a member of the public and the police.
Even in his dissent, justice John Paul Stevens said “It is perfectly clear, on the one hand, that neither the Federal Constitution itself, nor any federal statute, granted respondent or her children any individual entitlement to police protection.” His point seemed to be that the court should have considered whether the state of Colorado had laws on the books that seemed to suggest such a contract, and whether the protective order could be construed as such.
If a Colorado statute enacted for her benefit, or a valid order entered by a Colorado judge, created the functional equivalent of such a private contract by granting respondent an entitlement to mandatory individual protection by the local police force, that state-created right would also qualify as “property” entitled to constitutional protection.
Opponents of gun control have used these rulings to argue that this is why each person needs to be able to protect themselves because, contrary to common belief, the police have no duty to protect you as an individual but can use their discretion. Hence you have to assume that you are on your own.