Police Protection

By Hubert Plummer posted 03-16-2023 11:51 AM


Let’s talk about the police for a moment.  There are many civil rights issues involving the police, from police brutality to discrimination in many forms.  What is a police force for?  Why have them?  Law enforcement, of course.  You might think that they are there to protect you, the public.  Many people may not know that the police have no duty to protect you.

According to their own website, “The mission of the New York City Police Department is to enhance the quality of life in New York City by working in partnership with the community to enforce the law, preserve peace, protect the people, reduce fear, and maintain order.”[i]

The Los Angeles Police Department’s motto is “To Protect and Serve”[ii]

But guess what?  That “protect” word is just that, a word.  There is no legal backing to it.

Let’s start in 1981, in Washington, D.C.  Carolyn Warren and Joan Tallafaro shared a room on the 3rd floor of a rooming house.  Miriam Douglas shared a room with her 4 year old daughter on the 2nd floor.  In the early hours one morning Warren and Tallafaro heard a noise, which turned out to be 2 men breaking into the house.  They called the police and the dispatcher promised the police were on their way. At this point, the bad guys had entered Douglas’ room and were sexually assaulting her.

Warren and Tallafaro saw several police cars arrive and drive around the building apparently looking for some evidence of entry.  One of the officers knocked on the door of the building, but getting no answer, returned to their car and drove away.

Warren and Tallafaro still heard Douglas’ screams and called the police back.  The police never responded.  Warren and Tallafaro tried to call down to their friend, which alerted the bad guys who then forced all three women to an apartment where they were robbed, beaten and sexually assaulted for the next 14 hours.

In a separate incident, Mr. Nichols was in his car and was rear ended at a stop light.  The two people in the other car approached and began beating him, breaking his jaw.  The police officer that responded, somehow, did not get the identification of the two assailants before letting them go, and Mr. Nichol was unable to bring legal process against his assailants.

The two cases against the City and the individual police officers were dismissed, the DC Court of Appeals holding that the police owed a duty to the public at large and not to any specific individual.[iii]

Our story continues in 1989 when the Winnebago County, Wisconsin Social Services failed to protect a young boy from a beating that caused brain damage.  The department had noted and reported multiple incidents of abuse by the father in 1983 and 1984.  Eventually the father beat the child so bad he caused permanent brain damage.  The child had suffered brain damage and was profoundly mentally disabled.  He lived until 2015 when, at age 36, he died.  His father was subsequently tried and convicted of child abuse and served less than 2 years in prison.[iv]

In 1987 the boy’s mother, as his guardian, brought an action against the department alleging that they failed a constitutional duty to protect the child from his father.  Since the department knew of the abuse and had placed the child in the father’s custody, they should bear responsibility for a situation they partially created.

The case made its way to the US Supreme Court who held, in a 6-3 decision, that the department did not violate the boy’s civil rights.  It was not a violation of the Fourth Amendment.  They said that while the Due Process Clause imposes a duty to not take away a person’s life or liberty without proper due process, it does not impose an affirmative obligation to protect those rights from attack by other means.[v]

In other words, the government can’t kill you, but it doesn’t have to stop someone else from killing you.

 We now move on to 1999, in Castle Rock, Colorado.  Jessica and Simon Gonzales were going through a divorce.  Mrs. Gonzales had custody of their three daughters and a son from another father.  She had gotten an order of protection from the Family Court requiring Simon to remain at least 100 yards from her and the children. The court order had language requiring the police to arrest Simon if he violated the order.[vi]

Simon managed to abduct the three girls and whisked them away.  Jessica contacted the Castle Rock Police Department four times, at 7:30pm, 8:30, 10:10, and 12:15am asking the police to find Simon and the girls.  The police did nothing.  They claimed that at other times Jessica had allowed Simon to spend time with the girls, so this was nothing to worry about.

At 3:20am, Simon showed up at the Police Department and got into a shoot-out with the Police in which he was killed.  The police found the three girls, ages 7, 9, and 10, dead in his car.[vii]

Jessica brought an action against the Castle Rock Police Department alleging that they violated her and her children’s 14th Amendment Due Process rights by failing to enforce the order of protection.  Once again the case made its way to the Supreme Court.

The Court ruled, 7-2, that the Police Department was not required to enforce the protective order, stating that there was a long standing tradition of police discretion in enforcing these orders and that Colorado law did not create a requirement to enforce the order.  Finally, the order only creates a right for the protected person to bring a civil action against the offender or “request” a criminal investigation against the offender.[viii]

This policy is part of the reason why officers did not face discipline in the Uvalde School shooting for waiting over an hour before confronting the shooter.[ix]

For example, the NYPD Patrol Guide recites the motto I quoted above. It contains a section devoted to people who are protected by a protective order,[x] it doesn’t mention any affirmative duty to protect anyone.  Neither does the LAPD.  I was not able to find any duty to protect the public.[xi]

I also undertook a search of various oaths of office for police officers when they are formally sworn in.  Again, I did not find any that contained the word “protect”, unless it was in reference to the Constitution.

So, where does this leave us?  There are some situations where the police have to protect you, like when they take you into custody, or take on some other affirmative duty to protect you.  But, there is no duty otherwise.  Until there is some sort of legislation better defining the duties of the police, we have no standard.

In the general sense, you are on your own out there.


The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.