Failure to Protect

Broward Ex-Deputy Sheriff Scot Peterson has been arrested and charged with seven counts of neglect of a child, three counts of culpable negligence and one count of perjury in the aftermath of the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Peterson, a School Resource Officer, declined to intervene in that shooting, instead hiding behind cover for 45 minutes while the shooter killed seventeen and wounded seventeen others.

This is pretty much unprecedented.  Until now, officers of the law have been held not liable for the protection of any individual person or persons, as I explained in detail in my May, 2003 posts, Is the Government Responsible for Your Protection? Part I and Part II.  As I explained in Part I:

Carolyn Warren, Joan Taliaferro, and Miriam Douglas were the appellants in a lawsuit against the District of Columbia and its police department for failing to protect them. Fail them it did, but the court found against them. And here is its reasoning:

A publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order. The extent and quality of police protection afforded to the community necessarily depends upon the availability of public resources and upon legislative or administrative determinations concerning allocation of those resources. The public, through its representative officials, recruits, trains, maintains and disciplines its police force and determines the manner in which personnel are deployed. At any given time, publicly furnished police protection may accrue to the personal benefit of individual citizens, but at all times the needs and interests of the community at large predominate. Private resources and needs have little direct effect upon the nature of police services provided to the public. Accordingly, courts have without exception concluded that when a municipality or other governmental entity undertakes to furnish police services, it assumes a duty only to the public at large and not to individual members of the community. (Emphasis is mine)

Note the quote: “without exception.” This is not the first time someone has sued the government for not protecting them, not by a long shot. It’s one of the most egregious examples, but far from the only one.

So, it isn’t the government’s responsibility to protect “individual members of the community,” that is, you and me specifically.

This has been established for years, most recently in Castle Rock v. Gonzales from 2005. But in Part II of my essay I linked to a different case, Riss v. the City of New York, from 1968 in which a woman got a restraining order against her abusive boyfriend who had told her if he couldn’t have her, no one else would want her – and then carried out his threat by hiring someone to throw lye in her face, blinding her in one eye and disfiguring her face. She begged for police protection before the attack and got nothing. After the attack she received 24-hour protection. She sued. She lost, for the same reason Carolyn Warren, Joan Taliaferro, and Miriam Douglas lost – there is no duty to protect any particular individual or individuals unless they’re in custody or under direct care.

Here’s where it gets interesting. There was a dissent in the Riss case, and here’s the pertinent part of that dissent:

No one questions the proposition that the first duty of government is to assure its citizens the opportunity to live in personal security. And no one who reads the record of Linda’s ordeal can reach a conclusion other than that the City of New York, acting through its agents, completely and negligently failed to fulfill this obligation to Linda.

Linda has turned to the courts of this State for redress, asking that the city be held liable in damages for its negligent failure to protect her from harm. With compelling logic, she can point out that, if a stranger, who had absolutely no obligation to aid her, had offered her assistance, and thereafter Burton Pugach was able to injure her as a result of the negligence of the volunteer, the courts would certainly require him to pay damages. (Restatement, 2d, Torts, § 323.) Why then should the city, whose duties are imposed by law and include the prevention of crime (New York City Charter, § 435) and, consequently, extend far beyond that of the Good Samaritan, not be responsible? If a private detective acts carelessly, no one would deny that a jury could find such conduct unacceptable. Why then is the city not required to live up to at least the same minimal standards of professional competence which would be demanded of a private detective?

So if someone volunteered or was paid to protect her and failed as spectacularly at it as the NYPD did, THEY would be held liable, but the City is not.

Scot Peterson was paid to protect the kids in Marjory Stoneman Douglas High School. It was his JOB. And he failed them. Criminally.

I hope he spends the rest of his life in prison contemplating his failure.

UPDATE:  Gun Free Zone has a different take.

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