MULTI SERIES ARTICLE: CAN AMERICANS TRULY RELY ON THE POLICE TO PROTECT THEM?
A FURTHER LOOK AT THE QUESTION OF POLICE DUTY IN THIS PRESENT ERA OF SENSELESS, INCESSANT, REPREHENSIBLE ATTACKS ON THE POLICE AND UPON THOSE AMERICANS WHO, UNHINDERED, WISH TO TAKE RESPONSIBILITY FOR THEIR OWN PHYSICAL SAFETY AND WELL-BEING THROUGH EXERCISE OF THEIR NATURAL, FUNDAMENTAL, UNALIENABLE, GOD-GIVEN RIGHT TO KEEP AND BEAR ARMS.
WHAT IS THE DUTY OF A COMMUNITY’S POLICE FORCE TOWARD A CITIZEN WHOSE LIFE IS IN IMMINENT THREAT OF ATTACK?
Do the police have a legal duty to come to the immediate assistance of an innocent American whose life is in imminent danger if the police are notified of that imminent danger? We had asked this question in a previous article, and ask it once again in light of present Leftist attacks on both the police and upon those American civilian citizens who wish to exercise their natural and fundamental right to keep and bear arms.
Although the responses to the aforesaid question will be varied, as we noted, we expect that many people—perhaps most—would respond with the following: “that’s a silly question; of course, the police have a duty, and that is their job, to come to the immediate assistance of an innocent American whose life is in imminent danger.” For many people, the answer to the question may seem so obvious as to make the question itself rhetorical. But is it? For those people who are unarmed, and who choose not to possess firearms, the police, who are armed, are in the best position to secure the physical safety of unarmed civilian citizens, and such people fully expect the police to come to their assistance if they notify the police of an imminent threat to their life and safety.
But take a closer look at the question. Focus on the word, ‘legal duty.’ The question posed is distinct from another question we might have asked: Would you expect the police to come to the immediate assistance of an innocent American whose life is in imminent danger if the police are notified of that imminent danger?
Many Americans, certainly those who abhor firearms and who would never think of possessing a firearm, conflate the two questions. And, that is understandable, if presumptuous, as many Americans, even those who do exercise the natural right of self-defense through possession of a firearm would invariably expect the police to respond immediately to a “911” emergency.
But, even if that expectation seems reasonable, is that expectation misplaced? Suppose the police don’t timely respond to an emergency, or, for one reason or another, the police do not respond at all. And, suppose the failure to protect results in injury or death to that person.
Does the injured party have a cause of action in negligence against the police? And if death results, does the deceased’s estate have a cause of action for wrongful death, against the police? To answer these questions, we must pose another, but a more basic question that we had begun to deal with in our previous article. So——
WE AGAIN ASK: HAS SOCIETY PLACED THE BURDEN OF PROTECTING THE LIFE AND WELL-BEING OF EACH AMERICAN, ON THE POLICE?
The answer is “unequivocally, and demonstrably no.” The police do not have a legal duty to come to the assistance of any American even if notified of an imminent threat to the life and well-being of that individual. And that legal position is true today, as it was true decades—even centuries—ago, at the birth of our Nation. Yet the mainstream media and Leftist politicians routinely keep the public in the dark about this. That is bad. But worse, they lie to the public about this. That is despicable. Here and there, however, the truth does come out but only if the American people pay close attention. Unfortunately, most Americans do not pay attention to the import and purport of our laws, and the public must dig deep to learn the truth. So——
Thirty years ago, Stephen L. D’Andrilli, co-founder of the Arbalest Quarrel, and David B. Kopel, writer, attorney, and Constitutional law expert provided an answer to this question. They laid out the unblemished truth. They co-authored an article, titled, “Personal Safety: Individual Responsibility.” The article appeared in the May 1989 issue of “Women and Guns.” In the article the authors made clear both the state of the law and the dire consequences of the law, notably where the lives of women are endangered and the police do nothing to protect them. What Messrs. Kopel and D’Andrilli said in 1989 is as true today, as it was then. The law pertaining to the matter of police duty remains the same. Nothing at all has changed.
Two seminal Court cases on the matter of police duty stand out as mentioned in the Kopel and D’Andrilli article. Both cases, curiously enough, come out of jurisdictions that frown on civilian possession of firearms for self-defense and both cases establish the essence of the issue of “duty” as it relates to the police in communities around the Country. One is a New York case; the other comes out of California. The state of the law, today, as set forth in those two cases, remains unchanged; and the law in jurisdictions around the Country mirrors the law of California and New York.
The 1989 Kopel and D’Andrilli magazine article discusses both cases, and the Arbalest Quarrel provides additional commentary in our follow-up article.
From the two Court cases that the Kopel and D’Andrilli magazine article mention, we learn that the onus of protection of one’s life and well-being rests upon one’s self. That duty does not and cannot reasonably, rationally be relegated to the Government, even as Radical Left Marxists, Socialists, and Communists, and those so-called New Progressive Leftists proclaim vociferously, hypocritically, disingenuously, and erroneously that the health, safety, and continued well-being of Americans do rest safely, securely, and firmly in the hands of Government. They don’t and never did.
TWO DECADES OLD COURT CASES LAY BARE THE SAD TRUTH: POLICE HAVE NO DUTY TO SECURE THE LIFE OF AMERICANS FROM THREAT OF PHYSICAL HARM EVEN UPON NOTICE OF IMMINENT HARM
In the New York case, the police responded to the imminent threat posed to a young woman, but did so too late. In the California case, the police did not respond to the call for immediate protection at all; blatantly shrugging it off.
Consider, first, the facts of the 1968 case, as laid out in detail by the dissenting judge, in Riss vs. New York:
“Linda Riss, an attractive young woman, was for more than six months terrorized by a rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if she did not yield to him: ‘If I can’t have you, no one else will have you, and when I get through with you, no one else will want you’. In fear for her life, she went to those charged by law with the duty of preserving and safeguarding the lives of the citizens and residents of this State. Linda’s repeated and almost pathetic pleas for aid were received with little more than indifference. Whatever help she was given was not commensurate with the identifiable danger. On June 14, 1959 Linda became engaged to another man. At a party held to celebrate the event, she received a phone call warning her that it was her ‘last chance’. Completely distraught, she called the police, begging for help, but was refused. The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda’s face. Linda was blinded in one eye, lost a good portion of her vision in the other, and her face was permanently scarred. After the assault the authorities concluded that there was some basis for Linda’s fears, and for the next three and one-half years, she was given around-the-clock protection.”
A little late in the day for police protection, no? Linda’s life was forever ruined.
Two members of the Court of Appeals, the Majority, sided with the police, affirming the decision of the trial court, against Riss even though the Court acknowledged that New York had removed application of the doctrine of sovereign immunity through which the government is immune from liability to individual members of a community. No matter. The Court inferred the State was still immune from liability under straightforward tort principles because, as the Court majority opined, the duty to protect the New York public does not extend to protection of individual members of the public, in the absence of an exception, carved out by the Legislature. And the Court’s Majority found none.
The Dissenting Judge took strong exception to the Court Majority’s ruling, saying the ruling was nothing more than a “question-begging conclusion,” grounded on mere policy matters. “It is not a distortion to summarize the essence of the city’s case here in the following language: ‘Because we owe a duty to everybody, we owe it to nobody’ [emphasis my own]. Were it not for the fact that this position has been hallowed by much ancient and revered precedent, we would surely dismiss it as preposterous. To say that there is no duty is, of course, to start with the conclusion. The question is whether or not there should be liability for the negligent failure to provide adequate police protection.”
The Dissenting Judge said the case should have been remanded to the trial Court. He opined that, since the police had “actual notice of danger and ample opportunity to confirm and take reasonable remedial steps, a jury could find that the persons involved acted unreasonably and negligently. . . . Linda Riss is entitled to have a jury determine the issue of the city’s liability.” But Riss never received that opportunity.
The second seminal case, a 1975 California case, Hartzler vs. City of San Jose, involved a wrongful death action. These are the facts of the case, as set forth verbatim by the Court:
“In a wrongful death action against a city, it was alleged that decedent telephoned the main office of the city police department and reported that her estranged husband had called her, saying that he was coming to her residence to kill her. Decedent requested immediate police aid, but the department refused to come to her aid at that time, and asked that she call the department again when her husband had arrived. Approximately 45 minutes later, the husband arrived at decedent’s home and stabbed her to death. Some time later, the police arrived in response to the call of a neighbor. The trial court entered a judgment of dismissal, following the sustaining of the city’s demurrer without leave to amend.
The police told the decedent to call the police when her husband arrived? What good would that have done? The blasé attitude of the San Jose police borders on reckless disregard for the life and well-being of an innocent American the police could have secured, but didn’t. Nonetheless, the Court ruled in favor of the City against the decedent’s estate. Why did the Court of Appeals find against the decedent’s estate?
In the California Official Reports Summary, we learn that “the claim was barred by the provisions of the California Tort Claims Act, particularly Gov. Code, § 845, providing that neither a public entity nor public employee is liable for failure to provide police protection service or for failure to provide sufficient police protection service, and concluded that the police department enjoyed absolute, not merely discretionary, immunity.”
The California Court of Appeals held that, in the absence of a “special relationship” owing between the police, as a governmental entity, and an individual, the State enjoys “absolute immunity” from liability. The Court, having found no special relationship existing between the deceased woman and the police, affirmed the dismissal of the suit for wrongful death. So, where does that leave us, average, law-abiding, responsible, rational Americans?
IF THE POLICE DON’T HAVE THE LEGAL DUTY TO PROTECT INNOCENT, LAW-ABIDING AMERICANS, IT IS IRRATIONAL TO ARGUE AMERICANS OUGHT NOT HAVE FIREARMS FOR THEIR OWN DEFENSE.
It is mind-boggling that jurisdictions like New York and California would frown on civilian ownership of firearms for self-defense and yet find, as a matter of law, that the police have essentially no duty to provide that protection to innocent members of a community even when the police are on notice of a real and imminent threat to human life and well-being and fail to provide that protection.
Leftist Antigun governments and antigun proponents hide from the public that police have essentially no legal duty to protect individual members of a community even when placed on notice of imminent threat to human life.
Instead Leftists perpetrate a myth that police do provide a community with all the safety the members of a community need and, so, the individual members of a community don’t need guns for self-defense.
When Leftists argue they wish to rid the Nation of civilian ownership and possession of firearms, they claim they only wish to do so for the sake of public safety and public order. And the compliant, seditious Press consistently, incessantly, repetitively, and nauseatingly drums this nonsense into the ears of the public.
That, then, is what Leftists and their friendly travelers in the Press say, but what do they really mean? Simply this: they are referring to the public as a Collective, a Hive. Leftists don’t give a damn about the life, safety, and well-being of individuals who comprise the public.
If Leftists did give a damn, they would either encourage civilian ownership of firearms for self-defense, as the police have no duty to safeguard the life of individual Americans, or these Leftists would amend the laws of their jurisdiction, concerning police duty, making clear that police do owe a duty of care to the individual members of a community, to protect the life, safety, and well-being of those members of a community. Leftists, if they truly gave a damn about the life and welfare of the American citizenry, would make clear that police and other Government officials are wholly accountable to the individuals of a community—that is to say, they will be held legally liable—for such injury or death resulting from the breach of that duty. But we see no such thing happening on either account.* So, who are these Leftist scoundrels kidding?________________________________________
*Recent Bail reform measures in Leftist jurisdictions, like New York and California, together with the election or appointment of Soros financed activist Leftist prosecutors who refuse to prosecute crime, further complicate efforts by police to provide even a modicum of protection for the welfare of the public, the Collective. And, since the police do not have, and never did have, a legal duty to protect any individual member of a community, even when on notice of imminent threat to the life and well-being of that individual, means that the onus of personal protection, now more than in the previous century, rests upon each American. Yet, Leftists still bizarrely argue for constraining average, law-abiding, responsible, rational Americans from possessing firearms for their own defense and for the defense of their families.
So where does this leave Americans since police have absolutely no duty, except in extraordinarily few, extremely rare instances, to provide personal protection to individual Americans—apart from the personal protection they routinely provide to certain Government officials, like Mayors and Governors—and where average, law-abiding, innocent American citizens who cannot afford the services of a licensed and armed personal bodyguard are discouraged by Radical Left Marxists, Socialists, and Communists, and by the New Progressive Left, from providing for their own armed defense?
Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.