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What is the law enforcement duty to protect
citizens from harm caused by third parties? This type of
claim arises in a variety of circumstances. For example,
police fail to protect a spouse from their violent partner;
a hostage is killed by the hostage taker while the police
are trying to negotiate a peaceful end to a hostage situation;
an informant is killed while trying to make a drug buy;
or a witness is killed in an effort to prevent their testimony.
These are just some examples of how these cases arise. The
only clear cut case of a duty to protect relates to prisoners
who are in government custody. The reason for this duty
is that the person who is involuntarily held cannot protect
themselves.
The common thread in all duty to protect
cases is the fact that the law enforcement officers are
not the cause of the harm. Instead, some other person causes
the harm and the allegation is that law enforcement should
have acted to stop that person from causing the harm. In
many of these cases the allegation is that if law enforcement
had followed the generally-accepted practices of the profession
then the harm would not have occurred. For example, if the
negotiator had followed generally-accepted practices of
negotiation then the hostage-taker would not have killed
the hostage.
The question that is frequently asked is:
Under what circumstances does the state or municipal entities
have a constitutional duty to protect citizens from violence
at the hands of private actors? The general answer to this
question is that there is no constitutional duty to protect
free citizens. The only clear case of a duty to protect
is when a citizen is in the custody of a state or municipality.
In DeShaney v. Winnebago County, the Supreme
Court held that “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 DeShaney case involved a tragic
case of child abuse. Joshua DeShaney first came to the attention
of the Winnebago County Department of Social Services (DSS)
in January of 1982. After receiving a report that 2-year-old
Joshua may be the victim of abuse, the DSS interviewed his
father who denied the allegation. The DSS received numerous
other reports over the next two years including reports
by emergency room personnel who believed that Joshua’s
numerous, suspicious injuries were the result of child abuse.
During this time Joshua’s father had entered an agreement
with the DSS. However, he failed to comply with the conditions
of this agreement. Though there were numerous reports of
suspected abuse in the DSS files, no action was ever taken.
In March of 1994, Joshua’s father beat him so severely
that he fell into a life-threatening coma. It was later
determined that Joshua had suffered numerous head injuries
over a long period of time and as a result would have to
be institutionalized for the remainder of his life. Joshua,
through his mother, brought a §1983 action alleging
that the county had deprived him of liberty without due
process by failing to intervene and protect him from his
father’s abuse.
The U.S. Supreme Court held that the constitution
is not a source of any affirmative obligation on the state
or its subdivisions to protect its citizens. Since “the
Due Process Clause does not require the State to provide
its citizens with particular protective services, it follows
that the State cannot be held liable under the Clause for
injuries that could have been averted had it chosen to provide
them.” The Court did note that when “the State
takes a person into custody and holds him there against
his will, the Constitution imposes on it a corresponding
duty to assume some responsibility for his safety and general
well-being…The affirmative duty to protect arises
not from the State’s knowledge of the individual’s
predicament or from its expressions of intent to help him,
but from the limitation which it has imposed on his freedom
to act on his own behalf.” In Joshua DeShaney’s
case the Court noted that the county had done nothing to
create Joshua’s predicament or to make him more vulnerable
to it. This note by the Court left an opening which some
courts have used to find liability based on a violation
of due process.
The Deshaney case, decided in 1989, remains
the controlling law on the duty of government actors to
protect citizens who fall prey to harm by third parties.
While the law seems clear, there have been some cases where
court’s have found that law enforcement agencies have
breached a duty of care to person’s who have been
injured or killed at the hands of third parties. These cases
fall into two categories that are closely aligned, specifically
the case involve those where law enforcement personnel have
done something to enhance the danger to the third party
or where law enforcement personnel have done something which
has created the danger to the third party. Cases from several
circuit courts provide a good example of how the courts
are interpreting the law enforcement duty to protect.
Rivera v. City of Providence involved the
murder of a witness. Jennifer Rivera, a fifteen year old,
was a witness in the murder of Hector Feliciano, who was
shot and killed on August 28, 1999. Jennifer had observed
a notorious criminal, Charles Pona, flee the scene of the
homicide. At the request of the police, Jennifer went to
the police station and gave a witness statement. On August
31, 1999, Jennifer made a second trip to the police station
at the request of the murder victim’s family and made
a second witness statement in which she identified Charles
Pona.
Jennifer’s testimony at a grand jury
was helpful in indicting Charles Pona for the murder of
Hector Feliciano. Jennifer also testified in preliminary
hearings in which she was subjected to cross-examination
by Pona’s counsel. According to her family, the testimony,
which was given under the duress of police and prosecutors,
led to numerous death threats. Jennifer’s family claimed
that police and prosecutors were made aware of these threats
and promised that Jennifer would be safe.
On May 21, 2000, Dennard Walker, Pona’s
half-brother, stepped out of the shadows in front of Jennifer
Rivera’s house and shot her in the head causing her
death. Ironically, though Jennifer was not available to
testify at trial, her testimony at the prior hearings that
was subject to cross-examination was introduced and aided
in the conviction of Charles Pona for the death of Hector
Feliciano. Dennard Walker was convicted for the murder of
Jennifer Rivera. Rivera’s family filed a lawsuit in
federal court alleging that the prosecutors and police officers
involved in the prosecution of Pona had failed to protect
her from the harm caused by Pona.
The federal trial court dismissed the lawsuit
after concluding that there was no duty on the part of law
enforcement to protect Jennifer from harm even if the police
were made aware of the threats and had promised some level
of protection. That prompted an appeal to the United States
Court of Appeal for the 1st Circuit.
The Court of Appeal began by recognizing
the conclusions of the Supreme Court in Deshaney. “The
Supreme Court has stated that as a general matter, ‘a
State's failure to protect an individual against private
violence simply does not constitute a violation of the Due
Process Clause’….That is because the purpose
of the Due Process Clause is to protect the people from
the state, not to ensure that the state protects them from
each other.” It was further recognized that law enforcement
may have an obligation to protect persons from third party
violence when there is a special relationship; however,
citing Deshaney, the court noted that a special relationship
is founded in a state depriving someone of the liberty to
take care of themselves as with a prisoner. The court concluded
that even if the police did make promises of protection
and fail to keep those promises, they did nothing to restrain
Jennifer’s liberty and thus there could be no liability
based upon a duty to protect under the United States Constitution.
An opposite result may be reached when a
person is being held in a jail or prison and suffers harm
at the hands of a third party. In Merriweather v. Marion
County, a federal trial court examined a lawsuit that resulted
from assaults on a seventeen year-old in the Marion County
Jail. The juvenile, Ryan Merriweather was sexually assaulted
by several other inmates while in his cell. The assault
which occurred over a forty-five minute period was halted
as a guard approached. Ryan notified officials when he was
removed for a court appearance, having been afraid to report
the assault while still in the jail.
In evaluating the case, the court noted that
Ryan would have to establish some level of notice of the
propensity for violence by these other inmates. The jail
had 15 documented incidents of violence by the inmates involved
in the assault and Merriweather also alleged two other incidents
of violence against inmates by these individuals. While
the sheriff cited policies of constant rounds and the ability
of inmates to use phones as cutting against liability, Merriweather
argued that guards routinely violated these policies.
The court concluded that the one time that
government officials have an obligation to protect persons
from third party violence is when the person’s liberty
is restrained and they are unable to care for themselves.
The court asserted that Merriweather had alleged enough
evidence that the Sheriff was on notice regarding violence
in that area of the jail by citing the 15 documented incidents
of violence involving the very same assailants. Further
the court noted that Merriweather was assaulted a second
time, although not sexually, in the presence of guards during
recreation. Finally the court refused to dismiss the case
against the sheriff since a jury could conclude that the
sheriff was on notice and had failed to properly respond
in protecting Ryan Merriweather from third party harm in
the jail setting.
Key Point:
Government Actors have a greater duty to
protect persons from third party violence when the person
to be protected is in government custody and cannot protect
themselves.
References:
DeShaney v. Winnebago County, 489 U.S.
189 (1989).
Rivera v. City of Providence, 402 F.3d 27 (1st
Cir. 2005).
Merriweather v. Marion County, 2005 U.S. Dist.
LEXIS (Indiana Southern Dist. 2005).
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TARGET AUDIENCE:
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