Over the past few weeks, I’ve been seeing clip after clip of cops beating protesters, shooting rubber bullets and beanbags at people’s faces, pepper spraying indiscriminately, antagonizing peaceful protesters, firing pepper rounds at medics. It always begs one to ask, is this protecting and serving? Unfortunately, that question is irrelevant, because constitutionally speaking, the Police do not have an obligation to protect someone from harm. Basically, they don’t have a duty to protect and serve. We just have accepted this false premise that protecting and serving is their purpose when it’s not.
I know that sounds like crazy talk, but unfortunately it’s law that has been affirmed as recently as 2005. The phrase ”Protect and Serve” was actually the motto adopted by the Los Angeles police department in 1955. It has been adopted with some variation by many more departments across the country, but that is it, a motto. It’s the legal equivalent to a bumper sticker or a t-shirt design.
According to the Constitution of the United States and repeat affirmed rulings by the United States Supreme Court, police officers do not have a legal obligation to protect anyone in the public from harm.
Yes, you read that correctly. The police…have no legal duty to protect you from harm, and that comes straight from the absolute top. Let me walk you through some of those cases.
Warren v. District of Columbia (1981)
Three women that resided together in Washington D.C. had their house broken into by two men early one morning. To the sounds of screams from downstairs, two of the women hide in their room upstairs and call the cops. The cops respond and do a brief little drive-by investigation and then leave. After waiting for few more minutes, the two women upstairs make a second call to the police and the call is never forwarded. They call out downstairs thinking the police were there and it alerted the intruders that they were upstairs. For the next fourteen hours the captive women were raped, robbed, beaten, forced to commit sexual acts upon one another, and made to submit to the sexual demands of the intruders. I’m not sure how the situation ended, but the women ended up suing the District of Columbia and the Metropolitan Police Department on the 3 main claims on negligence.
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.
“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”
DeShaney v. Winnebago County (1989)
In 1980, a divorce court in Wyoming awards Randy DeShaney custody of his 1 year old son, Joshua. After being reported for child abuse 3 years later, the Department of Social Services take Joshua out of his father’s custody for 3 days and then enters into an agreement where they will regularly visit and document anything they suspect may indicate child abuse. Five times throughout 1983, they visited and documented suspected child abuse and that Randy was not complying with the agreement’s terms and still, no action was taken.
Following a 1984 visit, it was reported that “Randy beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua suffered brain damage so severe that he was expected to spend the rest of his life confined to an institution for the profoundly mentally disabled.”
He was charged and served less than two years in jail for child abuse. When Joshua’s mother filed a lawsuit claiming that the Department of Social Sevices failed to intervene and protect him from violence which they already were aware of, she lost too.
“The 7th Circuit Court’s decision to uphold the District Court’s dismissal in summary judgment was affirmed. A state or county agency does not have an obligation under the Due Process Clause of the 14th Amendment to prevent child abuse when the child is 1) in parental, not agency custody, and 2) the state did not create the danger of abuse or increase the child’s vulnerability to abuse. Failure to prevent child abuse by a custodial parent does not violate the child’s right to liberty for the purposes of the 14th Amendment."
Town of Castle Rock v. Gonzales (2005)
A town’s police station fails to enforce a restraining order a woman files against her husband which eventually leads to him kidnapping and eventually killing their three children. The children’s mother sued the police station and she also lost.
“The town of Castle Rock, Colorado and its police department cannot be sued under 42 U.S.C. § 1983 for failure to enforce a restraining order against respondent’s husband, as enforcement of the restraining order does not constitute a property right for 14th Amendment purposes."
This really makes restraining orders seem worth their weight in gold doesn’t it?
These are only three cases, but there plenty more where the Supreme Court has ruled against the idea that police have a legal obligation to protect someone. More recently, don’t forget the cop who cowered outside of Stoneman Douglas High School in 2018 where he was assigned while 17 high school students were being murdered inside. Scott Peterson was eventually charged with multiple counts of child neglect with bodily harm, but it looks as though his lawyers are very ware of the previous cases that touch on this. Don’t think anyone should be surprised if the state doesn’t find him at fault because many of the arguments that Peterson’s lawyers are making flow right through these same cases. Also, one of the other cops who sued after getting fired, just got his job back.
As uncomfortable as this precedent is, it’s meant to be practical. If citizens were allowed to sue police departments for not protecting them, police departments would entirely run out of money. The problem here is that most of us are living with a false assumption of the exact, constitutional role police officers have in our cities and we’re probably budgeting with that same mindset as well.
Operationally, police officers investigate crime and arrest people who commit crime, that’s it. Until we as a society decide to properly outline new standards and functions that police officers need to adhere to in order to properly convey that “Protect and Serve” ethos to all citizens equally in its operation, we should not be surprised that when the police are used like a hammer every problem is viewed as if it’s a nail.
When that’s the case, we shouldn’t be surprised when we send multiple militarized police officers to someone with a mental health condition having an episode, that the cops end up beating him to death. It shouldn’t surprise us that protests about police brutality are connected to a higher number of incidents of police brutality than other comparable protests. If you only have a hammer, you’re going to be extremely disappointed if you ever need to sand, screw, or glue things together.
“Protect and serve” is propaganda, it’s the shitty extended warranty thrown onto the end of a mediocre sales pitch made to make you feel more comfortable. However, after buying and reading the fine print later, you see how it’s actually full of fluff and not actually followed. Hey, don’t worry, they’re protecting and serving! Hey don’t worry, I got a warranty, I’m fine, they said it’s extended!
Until the Supreme Court of the United States rules that officers have a duty to protect and serve, we should stop saying it and expecting it. Just think about it, police departments themselves have defended themselves in these federal court cases from having to adhere to it, so why on earth do we expect them to follow it?
- Lozito v. New York City
- Duty of care
- United States tort law
- People with mental illness 16 times more likely to be killed by police
- Protesting the police: anti-police brutality claims as a predictor of police repression of protest
- NYTimes Article: Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone