Posted on 08/12/2002 6:43:51 PM PDT by IronJack
Apologies for the vanity, but I'm trying to research the Supreme Court cases that ruled the police have no obligation to protect individual citizens, that their duty is to society as a collective, rather than to the individual elements.
Can any of our more scholarly inclined (and archivally unchallenged) FReepers cite those cases?
In 1856, the U.S. Supreme Court (South v. Maryland) found that law enforcement officers had no duty to protect any individual. Their duty is to enforce the law in general. More recently, in 1982 (Bowers v. DeVito), the Court of Appeals, Seventh Circuit held, "...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... but it does not violate... the Constitution." Later court decisions concurred: the police have no duty to protect you.
Go to Jews for the preservation of firearms site ; there used to be other such cases listed there, re : Dial 911 and Die!. Also check out Keep and Bear Arms, and maybe Sierra Times. If you search the archives at those sites for (eg) self defense law, etc, you should find other cases cited.
It's not just that the police cannot protect you. They don't even have to come when you call. In most states the government and police owe no legal duty to protect individual citizens from criminal attack. The District of Columbia's highest court spelled out plainly 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." 5
In the especially gruesome landmark case the "no-duty" rule got ugly. Just before dawn on March 16, 1975, two men broke down the back door of a three-story home in Washington, D.C., shared by three women and a child. On the second floor one woman was sexually attacked. Her housemates on the third floor heard her screams and called the police.
The women's first call to D.C. police got assigned a low priority, so the responding officers arrived at the house, got no answer to their knocks on the door, did a quick check around, and left. When the women frantically called the police a second time, the dispatcher promised help would come - but no officers were even dispatched.
The attackers kidnapped, robbed, raped, and beat all three women over 14 hours. When these women later sued the city and its police for negligently failing to protect them or even to answer their second call, the court held that goverment had no duty to respond to their call or to protect them. Case dismissed.
The law is similar in most states. A Kansas statute precludes citizens from suing the government or the police for negligently failing to enforce the law or for failing to provide police or fire protection. A California law states that "neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service." 6 As one California appellate court wrote, "police officers have no affirmative statutory duty to do anything.'' 7
The state legislatures and courts protect government entities and police departments from civil liability for failing to provide adequate police protection. Some states invoke the "sovereign immunity" defense, a throwback to the days when the subjects were forbidden to sue the king. Other states have statutes that prevent legal challenges to police "discretionary" functions. Courts preclude lawsuits in those states by holding that answering emergency calls or providing police protection are "discretionary" functions.
Many states evade liability by relying on the ironically named "public duty" doctrine.
Like a George Orwell slogan, that doctrine says: police owe a duty to protect the public in general, but not to protect any particular individual.
Police Advice: "Get a Gun"
A Massachusetts statute spells out the rule there: the government has no legal duty "to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law." 8 That "no-duty" rule brings tragedy, as one Massachusetts woman learned in the worst way.
James Davidson had been abusing and harassing his wife, Catherine Ford, after their separation. 9 Catherine got a court order against James to stop his misconduct. The Grafton police knew about James, and told her that they couldn't provide protection around the clock. One officer frankly advised her to "buy a gun because the only way to deal with violence is violence."
Catherine did not take that advice. Over the next 15 months James continued to harass and stalk Catherine, and he repeatedly threatened to kill her and her family. James terrorized Catherine and her family at their homes. He attacked her at her workplace. James's own psychiatrist warned Catherine that James had plans to kill her. Despite all of his vicious and unlawful behavior, the police never arrested James for violating the court order.
James issued his final death threat on January 16, 1986. Catherine reported this threat to the police. At about 6 o'clock the next evening, James started kicking down Catherine's back door. When she ran out the front door, James spotted her and chased her even as she charged through moving traffic on the street. She pounded on a neighbor's door, but no one would let her inside. As she ran to the next house, James caught her and shot her three times in the face and neck. He then shot himself. Miraculously Catherine survived, but was totally paralyzed for life.
Catherine sued the town of Grafton for failing to protect her. Her lawyers argued that the police owed a legal duty to stop James, and thus the police owed a legal duty to protect Catherine. A Massachusetts statute required the police to arrest James for his repeated violations of the court order, but the police had failed to arrest him.
The Massachusetts court in Ford v. Town of Grafton held the city was not liable. The court order that was supposed to restrain James and protect Catherine did not amount to an "assurance of safety or assistance" from the police department. According to the court, when the police advised Catherine "to get a gun for protection , " that was a warning to her that the police were unable to assure her safety or protect her. Because she got no assurances of safety from the police, she had no legal right to rely on the police to protect her. Case dismissed.
Catherine Ford might have escaped James's murderous intentions unharmed if she had taken the police officer's advice to "get a gun" and had received a basic course in defensive firearms handling and safety. Studies show that Americans use firearms successfully up to two million times each year to stop criminals. 10 Tragically, she chose instead to rely on a court order and the police.
These two cases are not legal oddities. The general rule of law in the United States is that government owes a duty to protect the public in general, but owes no legal duty to protect any particular person from criminal attack. Neither the U.S. Constitution nor the federal civil rights laws require states to protect citizens from crime. As a federal appeals court bluntly put it, ordinary citizens have "no constitutional right to be protected by the state against being murdered by criminals or madmen." 11
Exceptions to the no-duty rule apply when the police have expressly promised to protect a specific person from an identifiable danger. Informers in a witness protection program, for example, might have an enforceable right to protection. Yet it will make little difference to a dead victim if a court some years later decides that the police did owe a duty but failed to protect him, and then awards damages to next of kin.
Picture the situation: government establishes a police force and installs 911 emergency call service. Then the government announces to the world that "you don't need a firearm for self-defense , " and so enacts "gun control" laws to make it difficult or impossible legally to get and use a gun. Meanwhile violent criminals remain illegally armed with guns and other weapons.
Now imagine you are snapped awake one night by the sounds of your door breaking in. You reach for the telephone to dial 911. The 911 emergency operator never answers. Or the police answer, take your frantic report, but don't come. Or they come too late. In any of these scenarios, the burglar gets in, knifes you, and steals your VCR.
Crouching behind a chair with a telephone in your hand, you were defenseless because the government took away your private defense tools and handed you a telephone number to call for emergency help. You relied on that telephone number, and the help never came. The government's policy made you a crime statistic.
Government lulls the public into trusting it to provide everything, takes away the people's means of providing for themselves, and then claims it has no duty to provide after all. Noting the fatal irony in the "gun control" context, James Bovard has written that "government has a specific, concrete obligation to disarm each citizen, but only an abstract obligation to defend the citizen." "Gun control , " Bovard notes, "is one of the best examples of laws that corner private citizens-forcing them either to put themselves into danger or to be a lawbreaker." 12
Laying Bare the State Protection Myth
The drive to prohibit private firearms ownership highlights the statists' goals in a way everybody can understand. They aim to disarm ordinary nonviolent citizens, even those who face high risk of criminal attack, and substitute police protection in place of self-defense. Meanwhile the police will not be held liable to individual citizens for failing to defend them.
Government "social programs" and various mandatory "insurance" programs operate in the same way. First, the government programs distort the market forces that provide housing, food, medical care, transportation, and other goods and services. People shift to depending on the government programs instead of taking individual decisions and action.
When the government programs fail, however, the people relying on those programs have little or no effective recourse. At best, dissatisfied people can file bureaucratic appeals to the very agencies that harmed or cheated them. There can be judicial review of bureaucratic decisions in some cases also, but the judges are usually part of the same government, and they typically defer to the original government agency's decision anyway.
In nearly all cases the citizen bears the stress and expense of pursuing appeals of bureaucratic decisions. The cost of appealing a government decision is already high. The effect of high appeal costs is to stop people from appealing-which gives results just like the "no duty," "sovereign immunity," and "public duty" rules. Government grabs power but sheds accountability.
The problem with government programs is not just that citizens have only narrow and costly avenues for appeals of decisions. While a government social program is operating, it is likely making worse the very problem it was trying to "solve." People cannot get out of a government program and return to private action or free-market solutions because of the effects of the program itself. Legislators point to the "failure" of the market, whine about the problems with the government program, and then prescribe more government. The voters reward those legislators by re-electing them.
Government power ratchets up the same way under a "gun control" regime. As laws discourage innocent citizens from defending themselves, the violent criminals remain undeterred. Absent some other, overweening factor, violent crime cannot possibly decrease in that environment; it more likely must increase. The statist response will naturally be to restrict firearms ownership even more, and to enhance the police presence. Greater police presence means more police, more surveillance, more reporting to government what citizens are doing. Nearly 170 million citizens lost their lives to their own governments in the twentieth century. 13 There is little reason to celebrate a police state.
Revealing the lie underlying the "gun control" agenda strengthens the case against socialism and the welfare state on many levels. If the argument advances the cause of individual liberty, then it is an argument worth making.
At the time of the original publication, Richard Stevens was a lawyer in Washington, D.C., and author of Dial 911 and Die (Mazel Freedom Press, 1999).
1. Federal Bureau of Investigation, Uniform Crime Reports for the United States (1997), pp. 9, 22, 19.
2. Ibid., pp. 14, 25.
3. Gordon Witkin, Monika Guttman, and Tracy Lenzy, "This is 911 ... Please Hold," U.S. News & World Report, June 17, 1996, p. 30.
4. Ibid., quoting Northeastern University Professor George Kelling and lawyer Catherine Coles.
5. Warren v. District of Columbia, 444 A.2d 1, 4 (D.C. 198 1), quoting the trial court decision.
6. California Government Code, § 845.
7. Souza v. City of Antioch, 62 California Reporter, 2d 909, 916 (Cal. App. 1997).
8. Mass. Gen. Laws Ann. Ch. 258 § 10(h).
9. The facts and law of this case are set forth in Ford v. Town of Grafton, 693 N.E.2d 1047 (Mass. App. 1998).
10. See Gary Kleck and Marc Gertz, "Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun," Journal of Criminal Law and Criminology 164 (1995), p. 86.
11. Bowers v. DeVito, 686F. 2nd 616, 618 (7th Cit. 1982).
12 . James Bovard's introduction to Richard W. Stevens, Dial 911 and Die (Hartford, Wise.: Mazel Freedom Press, 1999).
13. R. J. Rummel, Death By Government (New Brunswick, N.J.: Transaction Publishers, 1994), pp. 1-25.
Reprinted with permission from The Freeman, a publication of The Foundation for Economic Education, Inc., April 2000, Vol. 50, No. 4.
Now to move it to my "Plagiarized" folder ...
Thanks a million!
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