Do police have a duty to protect others from harm?
This question is a quick one. An officer says: hey, I took some training a while ago and the presenter talked about how police do not have a duty to protect others. They have discretion. I’m trying to figure out where that case is.
All right. That case is a very, very famous case called DeShaney v. Winnebago County. It’s a case from 1989, and it’s the seminal case in this area.
What DeShaney actually says
Essentially: look, you have a moral obligation. You have a professional obligation, an ethical one, to do your job, to go save people, to protect others from harm.
But when it comes to the law, when it comes to hey, you did not show up in time, or you were negligent in your arrival and you ended up crashing, and if you had arrived I would not have been robbed, or a person’s life would have been saved, all those types of things, at the end of the day, if police failed to protect others from harm and the police were not the cause of it, there’s generally no liability under the Constitution.
Let me read you the quote.
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 Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.
It forbids the State itself to deprive individuals of life, liberty and property without due process of law. But this is not applicable to private actors.
Consistent with these principles, our cases have recognized that the Due Process Clause generally confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests.
Think about what due process actually is. What is due to you from the government? That’s really the question.
So we’ve got a job to do. The firefighters have a job. Ambulances, police and so forth. But when it comes to liability, it just is not that simple. You don’t have a right to have the government protect you.
How this connects to the Second Amendment
Can we also talk about the fact that the U.S. Supreme Court affirmed in Bruen, New York State Rifle and Pistol Association v. Bruen, that people have a fundamental right to carry firearms outside the home for self-protection?
I think to myself, well, this is a perfect example of why.
I know New York City doesn’t like it. They say but we have a 40,000-person police force. Well, if you want your citizens to depend on your police force, then you’d better guarantee them some one-on-one protection.
Are you going to have NYPD walking with everybody? Are you going to assign a personal police officer to every person so they don’t get robbed? Is that what you’re going to do?
If not, then people have a right to be their own first responder.
And isn’t that the case anyway? At the end of the day, aren’t police really second responders in many ways? The first responder is people. They should have some dog in the fight when it comes to their own protection, and how they protect their family.
So I just want to throw that in there. The Due Process Clause and the Second Amendment kind of interweave. The Second Amendment is there for people’s protection.
What this doesn’t mean
Going back to DeShaney, that’s your case.
Of course we don’t want to shirk our duties. That’s not the message here. But in order to be sued for not protecting somebody, it’s very hard.
I’ve got to give you one last example. I remember watching stories during the riots, and how store owners were really upset in Seattle and Chicago and so forth, where police were standing by watching rioters but did not engage for various reasons. They didn’t have enough manpower. Maybe the politicians didn’t want them to get involved. Whatever it was.
Some of those store owners were saying they were going to sue the police for not protecting their property when they could have done something.
And I feel for them. If I was a store owner in Seattle or Chicago I’d be very upset too.
But legally? Almost impossible. Because of DeShaney. There’s no due process right.
Interesting conversation. There’s your answer, my friend, and I hope that helps. Until next time.
Related from Blue to Gold
- SCOTUS Strikes Hawaii’s Private Property Carry Consent Rule
- When Do Police Create a Special Relationship Duty?
- Should Officers be Obligated to Report Suppressed Evidence?
This article is an edited transcript of Roadside Chat Ep. #316. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
