E-Newsletter Online Legal Questions Answered:

Question Title: Failure to protect

E-Newsletter Edition: June 6, 2007

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:
My question is about failure to protect. My Town is very adamant about officers leaving town corporations. If there is a violent crime or injury accident just outside of town they don't want us to respond due to not our jurisdiction. Any law in Indiana on failure to protect?

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ANSWER:
Failure to act or protect is governed by two different rules in Indiana. First, there is state statute under Indiana Code Section 34-4-16.5-3. This provides, in pertinent part:

A government entity or an employee acting with the scope of employment is not liable if a loss results from: …(6) the performance of a discretionary function or (7) the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations) unless the act of enforcement constitutes false arrest or false imprisonment.

Therefore, in accordance with number 7 above, it appears that a government entity and its employees are not liable for a failure to enforce a particular law. Whether or not this is related to a “failure to protect” depends upon the specific facts of an incident.

Further, Indiana recognizes a difference between a public duty and a private duty. If the governmental duty is one owed to the public at large (public duty), then there is no liability on the government for failure to protect a specific individual. To give rise to a duty to protect a specific individual, the plaintiff must prove that a special relationship exists between the government and the particular individual in order to recover damages against the government. If the special relationship exists, then there is a said to be a private duty to the particular individual that is harmed. Indiana has adopted a three part test to determine whether this special relationship, and thus a private duty, exists. Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind. 1994). Therefore, to establish that the government owes a private duty to a particular individual, that individual must satisfy the following three part test:

(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party;

(2) knowledge on the part of the municipality that inaction could lead to harm; and

(3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking. Id.

Therefore, to establish liability for failure to protect, the plaintiff must show that the government gave them an explicit assurance that it would act on behalf that plaintiff, that the government was aware that inaction would harm the plaintiff and that the plaintiff relied upon the government’s explicit promise to their detriment. Merely not responding to an emergency that is outside of your jurisdiction would probably not subject you or your agency to liability for failure to protect as long as you or your agency did not meet the three criteria listed above. This is a high standard to meet in order to hold the government liable for a “failure to protect” but it is fact specific.

The United States Supreme Court has also held that, under most circumstances, the government has no obligation to protect citizens from harm caused by a third party. Deshaney v. Winnebago County, 489 U.S. 189 (1989). In Deshaney, the Supreme Court stated that “the Due Process Clause does not require the state to provide its citizens with particular protective services, it follows the state cannot be held liable under the Clause for injuries that co uld have been averted if it had chosen to provide them. Thus, even in federal court, it is difficult to prevail for failure to protect, as long as the victim is not in police or government custody.

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