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Public Safety. . . . Fact or Fiction?
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This is an
independent work by
John D. Brophy
P.O. Box 245036
Attorney at Law
State Bar No. 047520
PUBLIC SAFETY
Fact or Fiction?
"Do you believe that law enforcement
officers have a duty to protect you from harm?" Ask yourself that
question, and, your answer is . . . . ?
That is a question I have frequently asked. The
overwhelming majority of answers have been affirmative; ranging from
"Yes." to "That's what they are paid to do!" The next
logical question is "How can we be certain we know the correct answer?".
The correct answer is found in appellate court
decisions. The following summaries of a few appellate court decisions will
provide some insight into this area of the law.
The administrator of the estate of Ruth Bunnell who had been killed by her estranged husband
brought a wrongful death action against the city whose police department
refused to respond to her call for protection some 45 minutes before her death.
Mrs. Bunnell had called the police to report that
Mack Bunnell had called saying he was on his way to
her home to kill her. She was told to call back when Mack Bunnell
arrived. The police had responded 20 times to her calls in the past year, and
on one occasion, arrested her estranged husband for assaulting her. The Court
of Appeal held that the police department and its employees enjoyed absolute
immunity for failure to provide sufficient police protection. The allegations
that the police had responded 20 times to her calls did not indicate that the
police department had assumed any special relationship or duty toward her such
as would remove its immunity.
Hartzler v. City of
- - - - -
A husband and wife who
were assaulted in a laundromat while the assailant
was under surveillance by officers, brought legal action against the city and
the officers for intentional and negligent infliction of emotional distress and
for negligent investigation, failure to protect and failure to warn. The
Supreme Court held that: (1) the mere fact that the officers had previously
recognized the assailant from a distance as a potential assailant because of
his resemblance to a person suspected of perpetrating a prior assault did not
establish a "special relationship" between officers and assailant
under which a duty would be imposed on officers to control assailant's conduct;
(2) factors consisting of officer's prior recognition of assailant as likely
perpetrator of previous assault and officer's surveillance of assailant in laundromat in which victim was present did not give rise to
special relationship between officers and victim so as to impose duty on
officers to protect victim from assailant; and (3) victim could not maintain
cause of action for intentional or reckless infliction of emotional distress,
in view of fact that it was not alleged that officers failed to act for the
purpose of causing emotional injury, and that in the absence of such an intent
to injure, officer's inaction was not extreme or outrageous conduct.
Davidson v. City of
- - - - -
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.
Westbrooks v. State (1985) 173 Cal.App.3d 1203, 219
Cal.Rtr. 674
- - - - -
In an action against police officers and city
for personal injuries sustained by Kathryne Ne Casek when she was knocked
down on a sidewalk by two suspects who had been arrested by the officers, the
Court of Appeal held the amount of force or method used by a police officer in
attempting to keep an arrested person or persons in custody is a discretionary
act for purpose of application of doctrine of immunity of government officials
from civil liability for their discretionary acts, and therefore Ms. Ne Casek who was injured by two
escaped suspects who had been handcuffed together could not maintain an action
against the arresting officers based on the officer's alleged negligence in
using insufficient force to keep the prisoners in custody.
Ne Casek v. City of
- - - - -
An action was brought by several landowners
against the City of Los Angeles and the State pleading eleven separate causes
of action for damages arising out of the ‘Watts' Riots' of 1965. The Court of Appeal
held that none of the allegations presented was sufficient to show any duty
owed by any of the officials named as defendants to act to prevent or avoid the
harm suffered by the plaintiffs.
Susman v. City of
- - - - -
A silent burglar alarm installed on the premises
of the store operated by the plaintiff was, during the course of a robbery by
two armed men, activated at
Antique Arts Corp. v. City of
- - - - -
I believe that an accurate statement of the law
regarding whether or not law enforcement officers have a duty to protect an
individual from harm is: Law enforcement officers do not have a duty to protect
an individual from harm, unless a special relationship exists between the law
enforcement agency and the individual. Most of the cases in which a special
relationship was found to exist involved a person suffering an injury while in
custody; or, shortly after being released from custody by officers who knew, or
should have known, that the person was unable to exercise ordinary care. If a
law enforcement officer, or other public employee, does go to the aid of a
person in jeopardy or distress, they are performing an act outside the scope of
their official duties, and they assume the duty of using reasonable care.
The six cases listed above are only a few of the
If you are not already familiar with the way law
book publishers print the appellate court opinions, ask the librarian to show
you the case summary, and the "head notes", all of which are added by
the publisher, and where the court's opinion that was written by the court
begins. Only the language in the court's opinion is "official", the
case summary and the "head notes" are not. Not all opinions of the
courts are unanimous decisions, and some opinions include dissenting opinions.
Its
hard to believe - there are 28 court cases, all of which showing
" the Police have no obligation
to protect any individual person from harm "
DeShaney v. Winnebago County Social Services (1989) 489 US 189
Bower v. DeVito
(1982) 686 F.2d 616
Calgorides v. Mobile (1985) 475 So.2d
560
Warren v. District of Columbia (1983) 444 A.2d
1
Morgan v. District of Columbia (1983) 469 A.2d
1306
Sapp v. Tallahassee (1977) 348 So.2d 363, cert.denied 354 So.2d 985
Keane v. Chicago (1968) 98 Ill.App.2d 460, 240
N.E.2d 321
Jamison v. Chicago (1977) 48 Ill.3d 567
Simpson's Food Fair v. Evansville 272 N.E. 2d
871
Silver v. Minneapolis (1969)) 170 N.W.2d 206
Wuetrich v. Delia (1978) 155 N.J.Super. 324, 382 A.2d 929
Chapman v.
Morris v. Musser, (1984) 84 Pa.Cmwth. 170, 478 A.2d 937
Weiner v. Metropolitan Authority, and Shernov
v.
55 N.Y.2d 175, 948 N.Y.S. 141
Who does have a duty to protect a person from
harm? Parents have a duty to protect their children, but other than that, the
short answer is no one has that duty. The ultimate responsibility for your
protection is self protection, should you care to undertake that
responsibility. Is there any legal authority to justify exercising the right of
self protection in
Article I, Section
1 of the Constitution of the State of
All people are by nature free and independent
and have inalienable rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing safety, happiness,
and privacy.
(The present language was adopted November 5,
1974, and changed the original version, which was adopted in 1849, by
substituting the word "people" in place of "men", and by
adding the word "privacy" at the end of the sentence.)
California Civil Code, section 50 provides:
Any necessary force may be used to protect from wrongful injury the person
or property of oneself, or of a wife, husband, child, parent, or other
relative, or member of one's family, or of a ward, servant, master, or guest.
(Enacted in 1872. Amended by Code Am. 1873-74, extending
the right to use force to protect a relative without reference to degree, a
member of one's family, and a guest.)
Lawful resistance to the commission of a public offense may be made:
1. By the party about to be injured;
2. By other parties.
(Enacted in 1872.)
Resistance sufficient to prevent the offense may be made by the party about
to be injured:
1. To prevent an offense against his person, or his family, or some member
thereof.
2. To prevent an illegal attempt by force to take or injure property in his
lawful possession.
(Enacted in 1872.)
California Penal Code, section 694 provides:
Any other person, in aid or defense of the person about to be injured, may make
resistance sufficient to prevent that offense.
(Enacted in 1872.)
Civil Code section 50, and Penal Code sections
692, 693 and 694 as quoted above are still in effect. I find those code
sections, enacted in the early 1870's, to be straight forward and easy to
understand. They recognize the realities of life. Not all people are law
abiding; and, law abiding people have the right to protect themselves and their
property, and to come to the aid of others in need of assistance and protection
from individuals committing the public offenses.
Today, unfortunately, that is not the current
state of the law. Thousands of laws have been enacted since 1872 that
have effectively denied any truly effective means of exercising the
"inalienable rights" recognized in Article I, Section 1 of the
Constitution of the State of
There are some people who are unwilling to
accept the responsibility for protecting themselves from harm or injury, and
advocate the philosophy of pacifism. However. pacifism has never been shown to deter crime. Exercise of
your inalienable rights in Article I, Section 1, is not mandatory. You may
refuse to defend yourself and exercise your right to be a victim.
I believe the correct answer to my original
question is: Law enforcement officers do not have a duty to protect an
individual from harm. That raises more questions that should be considered. Why
is the public so misinformed about such a fundamental issue involving public
safety? What can be done to educate the public to the true facts on this issue
to enable them to make informed decisions about their personal protection? The
writer invites ideas from the readers regarding this article.
John D. Brophy
Editor’s
Note: John D. Brophy,
a private attorney who championed citizens' rights to own guns, died in his
