This article was originally published in the United States Department of the Interior's "SERO ROLL CALL" Bulletin, March 14, 2007, Vol. 85-07.
LEO’s Duty to Protect Persons from 3rd
By Jack Ryan
What is the law enforcement duty to protect citizens from harm caused by third parties? This type of claim arises in a variety of circumstances. For example, police fail to protect a spouse from their violent partner; a hostage is killed by the hostage taker while the police are trying to negotiate a peaceful end to a hostage situation; an informant is killed while trying to make a drug buy; or a witness is killed in an effort to prevent their testimony. These are just some examples of how these cases arise. The only clear cut case of a duty to protect relates to prisoners who are in government custody. The reason for this duty is that the person who is involuntarily held cannot protect themselves.
The common thread in all duty to protect cases is the fact that the law enforcement officers are not the cause of the harm. Instead, some other person causes the harm and the allegation is that law enforcement should have acted to stop that person from causing the harm. In many of these cases the allegation is that if law enforcement had followed the generally- accepted practices of the profession then the harm would not have occurred. For example, if the negotiator had followed generally-accepted practices of negotiation then the hostage-taker would not have killed the hostage.
The question that is frequently asked is Under what circumstances does the state or municipal entities have a constitutional duty to protect citizens from violence at the hands of private actors? The general answer to this question is that there is no constitutional duty to protect free citizens. The only clear case of a duty to protect is when a citizen is in the custody of a state or municipality.
In DeShaney v.s. Winnebago County, the Supreme Court held that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." The DeShaney case involved a tragic case of child abuse. Joshua DeShaney first came to the attention of the Winnebago County Department of Social Services (DSS) in January of 1982. After receiving a report that 2-year-old Joshua may be the victim of abuse, the DSS interviewed his father who denied the allegation. The DSS received numerous other reports over the next two years including reports by emergency room personnel who believed that Joshua’s numerous, suspicious injuries were the result of child abuse. During this time Joshua’s father had entered an agreement with the DSS. However, he failed to comply with the conditions of this agreement. Though there were numerous reports of suspected abuse in the DSS files, no action was ever taken. In March of 1994, Joshua’s father beat him so severely that he fell into a life-threatening coma. It was later determined that Joshua had suffered numerous head injuries over a long period of time and as a result would have to be institutionalized for the remainder of his life. Joshua, through his mother, brought a 1983 action alleging that the county had deprived him of liberty without due process by failing to intervene and protect him from his father’s abuse.
The U.S. Supreme Court held that the Constitution is not a source of any affirmative obligation on the state or its subdivisions to protect its citizens. Since "the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." The Court did note that when "the State takes a person into custody and holds him there against his will, the Constitution imposes on it a corresponding duty to assume some responsibility for his safety and general well-being…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 limitation which it has imposed on his freedom to act on his own behalf." In Joshua DeShaney’s case the Court noted that the county had done nothing to create Joshua’s predicament or to make him more vulnerable to it. This note by the Court left an opening which some courts have used to find liability based on a violation of due process.
The Deshaney case, decided in 1989, remains the controlling law on the duty of government actors to protect citizens who fall prey to harm by third parties. While the law seems clear, there have been some cases where court’s have found that law enforcement agencies have breached a duty of care to person’s who have been injured or killed at the hands of third parties. These cases fall into two categories that are closely aligned, specifically the case involve those where law enforcement personnel have done something to enhance the danger to the third party or where law enforcement personnel have done something which has created the danger to the third party. Cases from several circuit courts provide a good example of how the courts are interpreting the law enforcement duty to protect.
Rivera v. City of Providence involved the murder of a witness. Jennifer Rivera, a fifteen year old, was a witness in the murder of Hector Feliciano, who was shot and killed on August 28, 1999. Jennifer had observed a notorious criminal, Charles Pona, flee the scene of the homicide. At the request of the police, Jennifer went to the police station and gave a witness statement. On August 31, 1999, Jennifer made a second trip to the police station at the request of the murder victim’s family and made a second witness statement in which she identified Charles Pona.
Jennifer’s testimony at a grand jury was helpful in indicting Charles Pona for the murder of Hector Feliciano. Jennifer also testified in preliminary hearings in which she was subjected to cross- examination by Pona’s counsel. According to her family, the testimony, which was given under the duress of police and prosecutors, led to numerous death threats. Jennifer’s family claimed that police and prosecutors were made aware of these threats and promised that Jennifer would be safe.
On May 21, 2000, Dennard Walker, Pona’s half-brother, stepped out of the shadows in front of Jennifer Rivera’s house and shot her in the head causing her death. Ironically, though Jennifer was not available to testify at trial, her testimony at the prior hearings that was subject to cross-examination was introduced and aided in the conviction of Charles Pona for the death of Hector Feliciano. Dennard Walker was convicted for the murder of Jennifer Rivera. Rivera’s family filed a lawsuit in federal court alleging that the prosecutors and police officers involved in the prosecution of Pona had failed to protect her from the harm caused by Pona.
The federal trial court dismissed the lawsuit after concluding that there was no duty on the part of law enforcement to protect Jennifer from harm even if the police were made aware of the threats and had promised some level of protection. That prompted an appeal to the United States Court of Appeal for the 1st Circuit.
The Court of Appeal began by recognizing the conclusions of the Supreme Court in Deshaney. "The Supreme Court has stated that as a general matter, ‘a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause’….That is because the purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other." It was further recognized that law enforcement may have an obligation to protect persons from third party violence when there is a special relationship; however, citing Deshaney, the court noted that a special relationship is founded in a state depriving someone of the liberty to take care of themselves as with a prisoner. The court concluded that even if the police did make promises of protection and fail to keep those promises, they did nothing to restrain Jennifer’s liberty and thus there could be no liability based upon a duty to protect under the United States Constitution.
An opposite result may be reached when a person is being held in a jail or prison and suffers harm at the hands of a third party. In Merriweather v. Marion County, a federal trial court examined a lawsuit that resulted from assaults on a seventeen year-old in the Marion County Jail. The juvenile, Ryan Merriweather was sexually assaulted by several other inmates while in his cell. The assault which occurred over a forty-five minute period was halted as a guard approached. Ryan notified officials when he was removed for a court appearance, having been afraid to report the assault while still in the jail.
In evaluating the case, the court noted that Ryan would have to establish some level of notice of the propensity for violence by these other inmates. The jail had 15 documented incidents of violence by the inmates involved in the assault and Merriweather also alleged two other incidents of violence against inmates by these individuals. While the sheriff cited policies of constant rounds and the ability of inmates to use phones as cutting against liability, Merriweather argued that guards routinely violated these policies.
The court concluded that the one time that government officials have an obligation to protect persons from third party violence is when the person’s liberty is restrained and they are unable to care for themselves. The court asserted that Merriweather had alleged enough evidence that the Sheriff was on notice regarding violence in that area of the jail by citing the 15 documented incidents of violence involving the very same assailants. Further the court noted that Merriweather was assaulted a second time, although not sexually, in the presence of guards during recreation. Finally the court refused to dismiss the case against the sheriff since a jury could conclude that the sheriff was on notice and had failed to properly respond in protecting Ryan Merriweather from third party harm in the jail setting.
Government Actors have a greater duty to protect persons from third party violence when the person to be protected is in government custody and cannot protect themselves.
DeShaney v. Winnebago County, 489 U.S. 189 (1989).
Rivera v. City of Providence, 402 F.3d 27 (1st Cir. 2005).
Merriweather v. Marion County, 2005 U.S. Dist. LEXIS (Indiana Southern Dis
Warren v. District of Columbia is one of the leading cases of this type. Two women were upstairs in a townhouse when they heard their roommate, a third woman, being attacked downstairs by intruders. They phoned the police several times and were assured that officers were on the way. After about 30 minutes, when their roommate's screams had stopped, they assumed the police had finally arrived. When the two women went downstairs they saw that in fact the police never came, but the intruders were still there. As the Warren court graphically states in the opinion: "For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of their attackers."
The three women sued the District of Columbia for failing to protect them, but D.C.'s highest court exonerated the District and its police, saying that it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." - Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
There are many similar cases with same results.
Davidson v. City of Westminister, (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252
Westbrooks v. State, (1985) 173 Cal.App.3d 1203, 219 Cal.Rtr. 674
Ne Casek v. City of Los Angeles, (1965) 233 Cal.App.2d 131, 43 Cal.Rptr. 294
Susman v. City of Los Angeles, et al (1969) 269 Cal.App.2d 803, 75 Cal.Rptr. 240
Antique Arts Corp. v. City of Torrence, (1974) 39 Cal.App.3d 588, 114 Cal.Rptr. 332
Bowers v. DeVito, (1982) 686 F.2d 616. (No federal constitutional requirements that police provide protection.)
Calgorides v. Mobile, (1985) 475 So.2d 560.
Davidson v. Westminister, (1982) 32 Cal.3d 197, 185 Cal.Rep. 252.
Stone v. State, (1980) 106 Cal.App. 3d 924, 165 Cal.Rep. 339.
Morgan v. District of Columbia, (1983) 468 A.2d 1306.
Warren v. District of Columbia, (1983) 444 A.2d 1.
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.App.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. Philadelphia, (1981) 290 Pa.Super. 281, 434 A.2d 753.
Morris v. Musser, (1984) 84 Pa.Cmwth. 170, 478 A.2d 937.
Weiner v. Metropolitan Authority, and Shernov v. New York Transit Authority, (1982) 55 N.Y. 2d 175, 948 N.Y.S. 141.
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