From: Don Kates [DBKATES@peoplepc.com]
Sent: Monday, June 27, 2005 12:25 PM
To: KATES, Don
Subject: SUPREME COURT REAFFIRMS POLICE HAVE NO DUTY TO PROTECT YOU


If you have read my previous posts and law review articles you know that police have no duty to protect individuals. The police exist to do two things only: (a) patrol to deter crime; (b) after crime occurs to investigate and apprehend the perpetrators.

In other words, if you want to protect yourself and your family you must do it yourself -- which is to say you must get a gun. The police owe you no duty in that respect.

Here is a brand new SCOTUS case reaffirming that police may not be sued for failure to protect individuals. In addition I herewith supply some other caselaw and my old discussion of the issues (sans footnotes because I don't know how to put them in an email.



http://www.lasvegassun.com/sunbin/stories/bw-scotus/2005/jun/27/062708395.html>;


Today: June 27, 2005 at 8:13:34 PDT

Cops Can't Be Sued for Restraining Orders
By GINA HOLLAND
ASSOCIATED PRESS

WASHINGTON (AP) - The Supreme Court ruled Monday that police cannot be sued for how they enforce restraining

orders, ending a lawsuit by a Colorado woman who claimed police did not do enough to prevent her estranged

husband from killing her three young daughters.

Jessica Gonzales did not have a constitutional right to police enforcement of the court order against her

husband, the court said in a 7-2 opinion.

City governments had feared that if the court ruled the other way, it would unleash a potentially devastating

flood of cases that could bankrupt municipal governments.

Gonzales contended that police did not do enough to stop her estranged husband, who took the three daughters

from the front yard of her home in June 1999 in violation of a restraining order.

Hours later Simon Gonzales died in a gun fight with officers outside a police station. The bodies of the three

girls, ages 10, 9 and 7, were in his truck.

Gonzales argued that she was entitled to sue based on her rights under the 14th Amendment and under Colorado

law that says officers shall use every reasonable means to enforce a restraining order. She contended that her

restraining order should be considered property under the 14th Amendment and that it was taken from her without

due process when police failed to enforce it.

"The restraining orders are not worth anything unless police officers are willing to enforce them. They are

just paper," said Brian Reichel, the attorney for Gonzales. "If nothing else this case has shined the spotlight

on a very important issue."

Castle Rock, Co., police contend they tried to help Gonzales. Police twice went to the estranged husband's

apartment, kept an eye out for his truck and called his cellular phone and home phone.

Gonzales reached him on his cell phone, and he told her that he had taken the girls to an amusement park in

nearby Denver. Gonzales contends that police should have gone to the amusement park or contacted Denver police.

The case is Castle Rock, Colo., v. Gonzales, 04-278

---

On the Net:

Supreme Court: http://www.supremecourtus.gov








FROM A 15 YEAR OLD ARTICLE OF MINE

Police protection vs. the capacity to defend oneself--

Perhaps the single most common argument against freedom of choice is that personal self defense has been rendered obsolete by the existence of a professional police force.1

For decades anti-gun officials in Washington, D.C., Chicago, San Francisco and New York have admonished the citizenry that they don't need guns for self-defense because the police will defend them. This advice is mendacious: when those cities are sued for failure to provide police protection, those same officials send forth their city attorneys to invoke

[the] 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.2

Even as a matter of theory (much less in fact), the police do NOT exist to protect the individual citizen. Rather their function is to deter crime in general by patrol activities, and by apprehension after the crime has occurred. If circumstances permit, the police should and will protect a citizen in distress. But they are not legally duty bound even to do that, nor to provide any direct protection -- no matter how urgent a distress call they may receive. A fortiori the police have no duty to, and do not, protect citizens who are under death threat, e.g. women threatened by former boyfriends or husbands.

An illustrative case is Warren v District of Columbia in which three rape victims sued the city under the following facts: Two of the victims were upstairs when they heard the other being attacked by men who had broken in downstairs. Half an hour having passed and their roommate's screams having ceased, they assumed the police must have arrived in response to their repeated phone calls. In fact, their calls had somehow been lost in the shuffle while the roommate was being beaten into silent acquiesence. When her roommates went downstairs to see to her, as the court's opinion graphically describes it, "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.

Having set out these facts, the District of Columbia's highest court exonerated the District and its police, because (to reiterate) 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.3

In addition to the caselaw I have cited, this principle has been expressly enunciated over and over again in statute law.4

The fundamental principle that the police have no duty to protect individuals derives equally from practical necessity and from legal history. Historically there were no police, even in large American or English cities, before almost the mid-19th Century. Citizens were not only expected to protect themselves (and each other), but legally required in response to the hue and cry to chase down and apprehend criminals. The very idea of a police was anathema, American and English liberalism viewing any such force as a form of the dreaded "standing army."5 This view yielded only grudgingly to the fact that citizens were unwilling to spend their leisure hours patrolling miles of city streets and incapable even of chasing fleeing criminals down on crowded city streets -- much less tracing and apprehending them or detecting surreptitious crimes.

Eventually police forces were established to augment citizen self-protection by systematic patrol to deter crime and to detect and apprehend criminals if a crime occurs. Historically there was no thought of the police displacing the citizen's right of self-protection. Nor, as a practical matter, is that remotely feasible in light of the demands a high crime society makes on the limited resources available to police it. Even if all 500,000 American police officers were assigned to patrol they could not protect 240 million citizens from upwards of 10 million criminals who enjoy the luxury of deciding when and where to strike. But there are nothing like 500,000 patrol officers: to determine how many police are actually available on any one shift the 550,000 figure must be divided by four (three shifts per day, plus officers on days-off, sick leave etc.). After this calculation, the resulting number must be cut in half to take account of the officers assigned to investigations, juvenile, records, laboratory, traffic etc., rather than patrol.6

Doubtless the deterrent effect of the police helps assure that many Americans will never be so unfortunate as to live in circumstances requiring personal protection. But for those who do need such protection the fact is that police do not and cannot function as bodyguards for ordinary people (though in New York and other major cities police may perform bodyguard services for the mayor and other prominent officials). Consider the matter just in terms of the number of New York City women who each year seek police help, reporting threats by ex-husbands, ex-boyfriends etc.: to bodyguard just those women would exhaust the resources of the nation's largest police department, leaving no officers available for street patrol, traffic control, crime detection and apprehension of perpetrators, responding to emergency calls etc., etc.7

Given what New York courts have called "the crushing nature of the burden"8, the police cannot be expected to protect the individual citizen. Individuals remain responsible for their own personal safety, with police providing only an auxiliary general deterrent. The issue is whether those individuals should be free to choose gun ownership as a means of protecting themselves, their homes and families.

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FROM ONE OF MY RECENT EMAILS

Once again, the law is that police have no duty to protect the public and are not liable for failure to do so, no matter how egregious. My commentary on this horrifying case will follow after the material I am setting out immediately below which is the fact statement from the opinion of the federal court of appeals in Shipp v. MacMahon [you can read the entire opinion which is accessible at http://laws.lp.findlaw.com/getcase/5th/case/9831317cv0&exact=1]

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The appellee, Cherie Shipp (Shipp) was involved in an abusive marriage with her husband, Dalton Shipp ("Dalton") in Shreveport, Louisiana. To escape her husband's abuse, Shipp moved into her sister's house near Minden, Louisiana. When Dalton learned of her whereabouts, he made several threatening phone calls to her, which she reported to deputies of the Webster Parish Sheriff's Office (WPSO). Dalton also on several occasions drove by Shipp's sisters house, which Shipp reported to defendant Steve Cropper ("Cropper"), a Webster Parish deputy. Cropper advised that he would do nothing about Dalton.
Shipp then moved to her cousin's residence in Dubberly, which is also in Webster Parish.
Dalton went to the house in Dubberly, attacked Shipp by beating her with a telephone that he ripped from the wall, and hit her with his fist. He threatened that if she reported the incident to law enforcement, she would "find herself in the hospital." After physically abusing her, Dalton took some items belonging to Shipp and her cousin, placed the items in his automobile, and drove off. Despite Dalton's warning, Shipp called the WPSO. Deputy Cropper came to the scene and took a report, but made no immediate effort to arrest Dalton.
Several days later, Deputy Cropper approached Dalton about returning the items he took from Shipp's cousin's residence, but did not arrest him. Dalton was later allowed to turn himself in, and he was charged with simple criminal damage to property and simple battery, both misdemeanor offenses. As a condition of bail, the court ordered that Dalton stay away from Shipp. Later that day, he pleaded guilty to both offenses, and the court ordered him to seek immediate counseling. The court set sentencing for a later date.
Shipp obtained a temporary restraining order ("TRO") which prohibited Dalton from having any contact with her. After Deputy Cropper served Dalton with the TRO, Dalton made several abusive and threatening phone calls to Shipp, which Shipp reported to the WPSO. She was told that nothing could be done about the phone calls, and despite his violations of the TRO and the bail order, the WPSO did not arrest Dalton.
Dalton failed to appear in court for sentencing on the criminal charges, and a bench warrant for his arrest was issued. Although Dalton subsequently appeared in court to answer other criminal charges at the Webster Parish courthouse, deputies nonetheless failed to arrest Dalton for violating the TRO and conditions of bail.
Approximately four months after Dalton failed to appear at the scheduled sentencing hearing, he tracked down Shipp at her other sister's house and talked Shipp out of the house and into his car. Once in the car, Dalton sped away with Shipp's feet dragging the ground. She attempted to jump out of the car, but Dalton grabbed her by the head. Dalton drove Shipp to a house he had leased in Webster Parish.
Shipp's sister telephoned her mother, Carolyn Gates, who reported the incident to the WPSO. Defendant Betty Shipp(2) was the dispatcher who received the phone call. Apparently, Betty Shipp hung up the telephone without conducting an inquiry into the particulars of the incident. Betty Shipp advised Deputy Cropper of the phone call. He chose to take no action, despite his knowledge of Dalton's propensity for violent behavior. Neither Cropper nor Betty Shipp dispatched information to alert the other deputies.
After having her phone call terminated by the WPSO, Shipp's mother called the Minden Police Department, which dispatched an emergency alert and radioed the WPSO. Shipp's mother then picked up Jerry Gates, Shipp's father, and drove to the Webster Parish courthouse. They observed Deputy Cropper standing idly outside the courthouse. Cropper advised Mr. Gates that he intended to do nothing to apprehend Dalton. After they discussed where Dalton may be located with Shipp, Mr. Gates denounced Cropper's unwillingness to act, and told him that he was heading to the leased house. Deputy Cropper and another deputy pursued Mr. Gates.
Subsequently, Mr. Gates and four deputies arrived at the house. When the deputies made no effort to enter the house, Mr. Gates attempted to approach the house, but was restrained by the deputies. Cropper then knocked on the door, explaining that he had to ascertain whether Shipp was in the house voluntarily with Dalton. No one inside answered Cropper's knock.
Mr. Gates observed what he believed to be a silhouette on the curtain of Dalton with a gun. Mr. Gates again attempted to approach the house, but the deputies ordered him back. A shot rang out from the house and the deputies immediately retreated to their vehicles to put on armored vests. Another shot ranged out as the deputies remained crouched behind their cars.Inside the house, Dalton had raped Shipp. After shooting her in the chest with a 12-gauge shotgun, he shot himself. Shipp staggered to the door and unsuccessfully attempted to open it. She screamed for help, but none of the deputies responded. Shipp eventually staggered out a side door holding her entrails in her hands.
As she exited the house, Shipp's mother and a deputy raced to her aid. Mr. Gates also dashed towards Shipp, but he was abruptly intercepted by Cropper. At Cropper's order, another deputy handcuffed Mr. Gates and removed him from the scene.
Shipp was transported to the hospital, where emergency surgery was performed on her. She was hospitalized for several weeks, followed by rehabilitation, therapy, and follow-up surgery. Dalton recovered from his wounds and was subsequently charged with aggravated rape, aggravated kidnapping, and attempted second degree murder. As of the date of this opinion, he is currently being detained in Webster Parish jail pending trial, but has been permitted on several occasions to leave the jail and roam relatively unfettered throughout Webster Parish. Since the incident, the WPSO has not imposed any discipline on any deputy.
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It will come as no surprise to many of you -- but you will be wrong! -- that the federal court of appeals held that the lower court was correct in not dismissing the lawsuit here. The fact is that the appeals court recognized that the sheriffs were right "that there is no constitutional violation when the most that can be said is that the police stood by and did nothing, see McKee 877 F.2d at 412,"
In short, civilians have absolutely no right to police protection! The case was upheld only because the plaintiffs' artful lawyer wrote into the complaint a peculiar, and almost certainly false, claim which plaintiffs will not be able to prove at trial so they will lose. The lawyer claimed not that Mrs. Shipp had a right to police protection per se, but that she was deprived of her 14th Amendment constitutional right to equal treatment, i.e., that this police agency discriminated against her and all other women by refusing to give them proterction against violent husbands. To defeat this claim all the police agency will have to do is show what is doubtless true -- that in at least some instances it has protected women. It just did not protect Mrs. Shipp probably because her husband and his relatives are friendly w/ the sheriff and the department.

The police exist to patrol the streets and to apprehend criminals after the crime is committed. They do not exist to protect individuals. The law is, and remains, that if you want to be protected you must protect yourself.

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[from Bob Dowlut]There is a practical reason for the right to keep and bear arms. Courts have held that neither the state nor the police owe a duty to protect the individual. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989); Hernandez v. City of Goshen, U.S.C.A. 7th Cir. Mar. 31, 2003; Zelig v. County of Los Angeles, 27 Cal.4th 1112, 119 Cal.Rptr.2d 709, 45 P.3d 1171 (2002); Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986); Everton v. Willard, 468 So.2d 936 (Fla. 1985); Fox v. Custis, 712 F.2d 84 (4th Cir. 1983); Weiner v. Metro Transportation Authority, 55 N.Y.2d 175, 448 N.Y.S.2d 141 (1982); Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981). One federal court even boldly proclaimed that "there is no constitutional right to be protected by the state against being murdered by criminals or madmen." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).