The Duty To Protect

I’ll let the news article tell the story. Here’s the first paragraph:

A 15-year-old Marjory Stoneman Douglas shooting survivor and his family have put Broward County authorities on notice that they will sue to seek money damages to help cover the cost of his recovery.

While the question of whether police are obligated to enforce a restraining order were resolved in Town of Castle Rock v. Gonzales and the question of whether police owe a specific duty to provide police services to citizens based on the public duty doctrine were answered in Warren v. District of Columbia (trigger warning on both of those… awful, awful cases), the question of the obligations of police at the scene of a crime taking place have not, to by knowledge, been addressed by the courts.

Both of those cases found that the police did not have positive obligations to provide police services to citizens based on public duty doctrine nor that they were obligated enforce a restraining order.

It seems to me that this is a case likely to make it all the way to the top. I am interested in hearing arguments for why this case will be decided differently than those other two cases.

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96 thoughts on “The Duty To Protect

  1. Getting an answer to this question is very, very important for the current 2nd Amendment debate.

    I know that Castle Rock and Warren are both used in debates on gun control.
    If this case makes it all the way to the SCotUS, how it is decided will have a *HUGE* impact on the debate as well.

    If that happens and the court finds for the police? The 2nd Amendment ain’t *NEVER* gonna go away.

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  2. This seems to be a good time to complain (again) about qualified immunity, which is a dumb doctrine that seems to exist primarily to protect bad people who make bad decisions.

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    • Disagree unless that is, umm qualified, a bit more. I have quasi judicial immunity in my job. Without it no one would ever do the job. Some job entail doing things that people will deeply hate even when everything has been done correctly and well. We already have very litigious society which creates problems. Lawsuits against cops are going to be blunt instrument at best. There are times to sue cops and PD’s but it should be a high bar.

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        • 1) What is the department training on how to deal with active shooters? Can the shooter be identified? Are there hostages the shooter is threatening to kill?

          2) Yeah it could be something that does clear the bar.

          3) Lawsuits are not going to make cops rush into a building to confront a shooter. If a cop is scared of getting killed fear of a lawsuit is not going to make that go away. If they are that scared they will take their chances with a lawsuit over getting shot.

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          • According to this, the police are, in fact, trained to go in.

            “We teach that the first priority when you come on scene is to stop the killing,” said Pete Blair, executive director of the Advanced Law Enforcement Rapid Response Training Center at Texas State University and one of the nation’s top experts on active shooter training. “The number one driving force is gunfire. If there’s gunfire, we teach the officers to isolate, distract and neutralize. We want people to go directly to the sounds of the gunfire.”

            As for #3, there are a surprising number of articles talking about the deputies pushing back at the accusation that they were “cowards”. Here’s one from NPR so you know it’s even-handed.

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            • I’m not sure what you are arguing against or for. Those deputies may have screwed up but my original comment wasn’t about them. I havn’t followed that story closely which i’m fine with.

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              • My argument is that if qualified immunity is broad to the point where the argument is that the Broward County Sheriff’s department shouldn’t be on the hook for the hospital bills of some of the shot kids even though the deputies were there on the site, then the arguments about the 2nd Amendment being important because the citizen cannot count upon law enforcement just got really, really, really, really, really good.

                Like even better than they were when there were only Castle Rock and Warren to point to.

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                • Oh it seemed more like you were picking one recent case to hammer against a more general point.

                  Cops not aggressively “protecting” doesn’t seem to be the biggest issue we face. Most of the problems seem to be cops going being overly active, intrusive, belligerent. Cops not intervening when something is happening seems less common. Sure it happens, that just doesn’t seem to be the most common thing.

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                  • It’s perfectly possible to see cops being overly aggressive where there’s no threat, and overly passive when there is a real threat, as part of the same pattern. It’s called being a bully, in schoolyard parlance.

                    (Of course, there are also many, many cops who are pretty good cops and who are brave – but people doing their jobs don’t make case law….)

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                  • Cops not intervening when something is happening seems less common. Sure it happens, that just doesn’t seem to be the most common thing.

                    What we have here is a situation where that happened and the question is whether they should be held liable for that to the point where they should pay for the hospital bills of the kids who were shot.

                    So that’s the question.

                    Should the cops be held liable?

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                • then the arguments about the 2nd Amendment being important because the citizen cannot count upon law enforcement just got really, really, really, really, really good.

                  I don’t see the logic to support that.

                  I agree qualified immunity may be applied too broadly, but even so, that doesn’t support a conclusion that we “the lack of a duty means an inability to rely” and further, that an inability to rely means unfettered right to possess a weapon.

                  I suspect this case turns on a much more finely detailed niggle over “duty” than a sweeping support for the 2nd Amendment would need.

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                  • Well, if the trade-off of giving up a right to vigorous self-defense is that you can rely on the authorities to protect you, having the authorities openly state that they are under no obligation to protect you undercuts the value provided by the trade-off.

                    I suppose pointing out that the authorities fighting against the position that they have a duty should not have me jump to the conclusion that I cannot therefore rely on them is an option, of course.

                    I don’t think it’s as persuasive as you seem to think it is, though.

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                    • Is this a killer argument against banning all guns? Not only is “get rid of all guns” not on the table i don’t’ think it’s in the same county as the building where the table exists.

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                      • Yes, yes. Nobody is arguing that we should ban all guns. Just the rapid-fire high magazine clips.

                        In any case, I stand by my position that any gun control argument will be weakened substantially by the argument on the part of the authorities that they have no duty to protect.

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                            • The argument for gun regs has nothing to do with cops protecting people, it has to do with protecting people from guns.

                              Add: I mean, I get that you’re really excited about this decision being a silver bullet against gun control, but I think you’re projecting a bit.

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                              • Sure,
                                But the counter argument is:

                                If the cops can’t or won’t protect me, I’m going to damn well protect myself. And the VAST majority of the people that have this view do not need to be feared by the people who believe in “protecting people from guns.”

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                                • You mean their relationships don’t become abusive or violent, they don’t contemplate suicide during low points in their lives, etc.?

                                  I guess in the strict sense your statement that “the VAST majority of the people that have this view do not need to be feared by the people who believe in “protecting people from guns” may technically be true – it’s not the vast majority of them, it’s just that the ones who do need to be feared are impossible to separate out from the vast majority.

                                  There’s also the fact that the vast majority of people who hold those views are mistaken in those views – as borne out time after time in study after study, revealing (duh) that having a gun in the home increases one’s risk of both homicide and suicide.

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                                  • It is possible to separate the dangerous people out, since they rarely come out of the blue. However, most police departments can not be bothered to do it, because reasons.

                                    I’ve mentioned this before, but local to me, the police have dedicated actual resources to seizing weapons from people with POs against them. They are also dedicating resources to follow up on failed NICS checks. This is news because most PDs in the country fail to do either.

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                • then the arguments about the 2nd Amendment being important because the citizen cannot count upon law enforcement just got really, really, really, really, really good.

                  No, the arguments won’t change, as you’ve conceded by saying that the court siding with the cops would be a continuation of the status quo. What I think you mean is that the SHOUTING will get LOUDER. And you’re probably right. I mean, you’re already shouting about it.

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                  • Here is my basic assumption:

                    Most people think that the police have a duty to protect.

                    It’s a reasonable assumption, I think.

                    However, I think that if the Supreme Court confirms that they do not, that assumption can no longer stand. (Though I think that the assumptions will take worse damage from the arguments given by the authorities as they stand in front of the Justices, though).

                    Of course, this is all just speculation on my part.

                    Maybe the lawsuit will get settled out of court and it won’t even make it to state-level.

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                    • This argument seems to be based on that extremely hyperbolic edge of gun rights talk, where its not about sober hunters and cautious target shooters, but at the fringes of “Anarchy! Zombies! Cats & Dogs Living Together!” imagery.

                      Again, it would be great if one of the legal minds were to chime in here, but I think this word “duty” is being debated only in its most detailed legal form.

                      I really don’t think the government’s argument is going to be “Y’all are on your own, we’re buggin’ out!”

                      I’m thinking of those cases where someone’s car gets broken into in a parking structure, and the case involves the degree of “duty” the property owner had to provide a reasonable level of safety.

                      My memory of this is that it never comes down to some absolute binary one way or the other.

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                      • I really don’t think the government’s argument is going to be “Y’all are on your own, we’re buggin’ out!”

                        You mean with words or if there’s, like, a situation where someone is shooting children in a high school that they’re just going to be outside just creating and keeping a perimeter and then, after the fact, arguing that they have no positive duty to protect?

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                        • That take on things seems rather extreme to me.
                          It makes it sound like the cops just stood around nonchalantly chatting while a slaughter was going on.

                          Plenty of criticism is warranted about the response, I am sure!

                          But to frame it in such dark terms, especially if the intent is to mount an argument that puts the American citizen as an isolated figure surrounded by chaos and danger is really what I push back on.

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                        • You mean with words or if there’s, like, a situation where someone is shooting children in a high school that they’re just going to be outside just creating and keeping a perimeter and then, after the fact, arguing that they have no positive duty to protect?

                          As I see it, they’re making that argument in the context of a lawsuit charging them with not fulfilling a duty to protect. They’re using legal language in a legal arena because such language has specialized meanings in that arena.

                          They’re not saying, as far as I can tell, that there ought to be no expectation for a cop to protect citizens. I suspect if you asked most cops/sheriffs, outside a courtroom, they’ll say that’s their duty. None of this is to suggest that cops can’t err or that some might not be brave or that police forces and sheriffs offices might lack in proper training or might have very poor incentives when it comes to encouraging their officers to make difficult decisions.

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                          • To elaborate a little more and to reinforce what I take to be one of Greginak’s excellent points: let’s say the courts determine that police departments have duty to protect and therefore can be sued in civil court for not honoring that duty. I don’t see how the 2d amendment argument got substantially weaker. To my knowledge, even with a duty to protect doctrine, it’s not individual cops, but the department or county that will have to pay up. That by itself won’t change much, in my amateur’s view.

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                            • let’s say the courts determine that police departments have duty to protect and therefore can be sued in civil court for not honoring that duty.

                              The precedents to this point are not in line with that.

                              If this case holds to precedent, we’ll be talking about how the courts determine that police departments do *NOT* have duty to protect.

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                        • I believe you are telling the truth, I just find it baffling.
                          I read the news every day, I think I am well informed, but a home invasion very month??

                          Seriously, I live 2 blocks from Skid Row, and yet we walk late in the evening unarmed, we leave our apartment door unlocked, and I am unaware of any home invasions near me.

                          I just don’t get this constant drumbeat of FEAR! TERROR! CHAOS! where people are so vehemently insisting that the world is a dark dangerous place.

                          Its like the desire to be afraid is the motivating factor, and the actual evidence is sought out as a justification.

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                          • I read the news every day, I think I am well informed, but a home invasion very month??

                            Last summer I had 18 chickens killed overnight in my backyard. I assume “fox” but over the years I’ve had issues with aggressive dogs and even deer. I’ve also seen a possum who acted like he had rabies (yes, I know it’s rare in possum), skunks, etc. Currently we handle these issues less aggressively, i.e. we have a dog, but I could fit a gun-as-a-lifestyle-tool into my household.

                            And none of this is “news”, even locally.

                            Shifting entirely to human-on-human stuff, the bulk of I-need-a-gun issues are still not going to be “news”. There are millions of domestic-violence restraining orders in force on the typical day. Every stalked woman doesn’t get a restraining order. Both of these are so common they’re not “news”.

                            Shifting to “home invasions”, *An estimated 3.7 million burglaries occurred each year on average from 2003 to 2007. *A household member was present in roughly 1 million burglaries and became victims of violent crimes in 266,560 burglaries. https://www.bjs.gov/content/pub/ascii/vdhb.txt

                            So roughly 300,000 home invasions a month. You never hear about it because it’s not news even on a slow day.

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                            • No wonder we never hear about them.

                              In 7% of all household burglaries, someone was home at the time and experienced a violent victimization (figure 1, table 15).
                              This translates to about 266,560 household burglaries out of
                              about 3.7 million taking place each year on average.

                              Say 300K out of 126 million households works out to about 2 households out of a thousand that experience such terror.

                              Each year.

                              I mean, really how many people reading these comments have experienced this? Had someone in your immediate family? Known someone who did?

                              See, this is what I am not getting. This drumbeat of “I gotta defend myself” isn’t coming from people relating personal testimony of fear.

                              Its always like the heroin needle in the Halloween candy, something that we just know happens all the time but just enough steps removed so it can’t be personally experienced.

                              There is something going on here, where the desire to get a gun comes first, and everything else is a pretext.

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                              • @dark-matter I’ve experienced non-violent home invasion when I wasn’t at home and I know people very close to me who have experienced both the non-violent and the violent kinds when they were at home. (Not the same people, and no one was killed, thank goodness.) In all cases, no matter how much I might claim intellectually the risk was low, it was scary as hell and very personal-from-the-point-of-view-of-the-people-being-invaded. It’s not a drumbeat of media-generated fear, it’s the very visceral holy-shit-who-is-this-person-in-my-space-and-how-did-they-get-here reaction that, once experienced, is pretty hard to shake.

                                Of course, I do live in the wild wild (lacking in services to help homeless people and poor people generally) west… and none of the me-or-close-to-me instances I’m thinking of happened anywhere but in Colorado. (It’s possible if I thought harder I’d think of more – I don’t experience home invasion as that “rare” of a thing, to my way of knowing – certainly not like the heroin needle in the Hallowe’en candy at all.)

                                That said, none of the people who’ve had those experiences decided to buy a gun because of it. Only one of my friends who has experienced home invasion owns a gun, in fact he has multiple guns, but given that it was the non-violent type of invasion, and the dude was simply a) poor/shady and b) mixed up about whose house he was making breakfast in, my friend never even went for his gun safe.

                                That’s not what he has guns for, random stupid guys who are unlikely to prove violent / draw on him, nor is it related to why he bought them in the first place.

                                I’d be curious as to the geographic distribution of those home invasions. If they’re geographically clustered, that could explain the difference in how common they seem to people in different parts of the country without having to pull in media scare tacticts.

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                              • People overstate the dangers of home invasions somewhat, and I think the stats at the link provides show that the risk isn’t that great, in part because the more serious violent crimes are a pretty small fraction of a pretty small fraction.

                                And the number of people killed in home invasion burglaries is small, comparable to the numbers killed in mass shootings annually. (It’s higher by something like 50% IIRC.)

                                So it’s not an incredibly likely thing to have happen. It’s probably not a risk that would justify having a gun for the modal household [1], and, well, most households don’t.

                                And I think there is definitely a thing that happens were people overestimate the risks they’re in and buy a gun as a result, as well as engage in some post hoc reasoning to rationalize the investment made in a gun they’ve already bought.[2]

                                But I really don’t feel comfortable saying categorically that everybody is misjudging the risks, and some people have perfectly sensible reasons to believe they’re at greater risk than the typical person. I get a very bad feeling stepping in and overriding their judgment about circumstances that they are in a position to understand much better than I do.

                                This is a pretty limited basis for defending gun rights, and if anything I am more opposed to gun control than just this belief would entail on its own. But it’s still a real concern, one that’s not so far removed from the reasons for most of my socially liberal policy preferences, and one that is aligned with the Second Amendment as it’s currently viewed by the Courts.[3]

                                [1] Guns cost money, you need to learn how to use them, and having them around presents its own set of dangers.

                                [2] Our brains are bad at estimating probabilities and good at motivated reasoning.

                                [3] I think Heller is a pretty loopy decision, but it is the law of the land, and the end result is pretty reasonable IMO.

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                                • And I think there is definitely a thing that happens were people overestimate the risks they’re in and buy a gun as a result, as well as engage in some post hoc reasoning to rationalize the investment made in a gun they’ve already bought.[2]

                                  Sure, but I think the reverse happens a lot too.

                                  In the news a few years ago was a College girl who had a serious stalker. She had a restraining order, he’d served jail time, he’d been arrested close to her with a “kidnap and rape kit” in his car.

                                  University security supposedly would walk people around or home if they’re feeling nervous, but they said they don’t have the manpower to walk her everywhere all the time so she should stop calling them.

                                  So she asked the University if she could Concealed Carry in their gun free zone, and they refused.

                                  I thought the most interesting part was the comments in the news article. Lots of mental backflips, “she’s being paranoid”, “she’ll be killing people”, “she’s dangerous”. The majority of people commenting didn’t want to admit she might actually need a gun so they couldn’t admit she had a much higher risk profile than most.

                                  As far as I can tell, that’s the mindset driving the gun debate.

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                                  • Now I’m thinking a bit utilitarian about this…

                                    Let’s use the example cited: college girl with a stalker who wants a gun.

                                    College Girl’s risk factor of being harmed by Stalker is A.
                                    Random Student’s risk factor of being harmed by Stalker is B.
                                    B is much, much, much, much, much less than A.
                                    Random Student’s risk factor of being harmed by College Girl is C and is effectively 0.

                                    If College Girl gets a gun…
                                    How does A change?
                                    How does B change?
                                    How does C change?
                                    If C changes enough and/or the Random Student population is large enough that the total change of C is greater than the change in A… that is to say that her having a gun reduces her own risk by quite a bit but increases lots of other people’s risks by a tiny bit that, taken together, outweighs her own risk reduction… are the objections you noted beside “She’s being paranoid”* entirely without merit?

                                    * This one stands our as markedly different from the other two, which remain focused on actual risk factors.

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                                    • If C changes enough and/or the Random Student population is large enough that the total change of C is greater than the change in A…

                                      You’re assuming as the population increases their risk C remains the same. That’s not true on the face of it, we’re looking at a situation where she has the chance of injuring someone with her gun “C”, and it’s divided up among all students.

                                      Their individual chances go down and their collective chance remain the same.

                                      The sum of an infinite series can still be a finite number. For example 1 + 1/2 + 1/4 + 1/8… will be “2”. We’re taking half of “2”, adding to that half of the remains, then half of the remains, and so forth.

                                      If we give her normal CC “injures other person” odds then “C” is extremely small while the odds her stalker injures her are extremely large.

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                                      • If we give her normal CC “injures other person” odds then “C” is extremely small while the odds her stalker injures her are extremely large.

                                        This is what I meant about people mis-estimating very small odds and seeing them as FAR larger than they should.

                                        There are three million people who CC every day (google). One more, even if on a campus, shouldn’t give us pause.

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                                      • Perhaps. We’d need more data to complete the analysis.

                                        But the concern that her carrying a gun increases the risk to others is not meritless and shouldn’t be treated as such.

                                        The claim she’s being paranoid seems unsupported by the facts.

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                                        • But the concern that her carrying a gun increases the risk to others is not meritless and shouldn’t be treated as such.

                                          I suspect it is completely meritless.

                                          He is a dangerous person, not only to her but to others in general and (especially) anyone around her. He shouldn’t be allowed to have a gun, but that being illegal hasn’t stopped him in the past and we shouldn’t expect it to stop him in the future.

                                          Even if we totally (and heinously) ignore the risk assessment to her, I think we-as-a-society are safer with her having a gun just because society-in-general’s risk from him is decreased. That guy should have an armed guard following him around making sure he stays out of trouble. We can’t have that, but when he gets in trouble it’s highly likely she will be right there.

                                          Clearly she’s not the armed guard I’d prefer, ideally we’d have Arnold from one of his movies, but some protection for society is better than no protection, which is what we have if we seriously expect him to follow the law.

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                                          • Is there a chance she hurts someone other than this guy? Or that her gun is used by someone else to hurt someone other than this guy?

                                            Again, I’m not arguing that these concerns should win out. But you’re doing the same thing to these folks that you are criticizing them for doing to her: completely dismissing their position.

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                                            • Is there a chance she hurts someone other than this guy? Or that her gun is used by someone else to hurt someone other than this guy?

                                              My expectation is this is lower, by several orders of magnitude, than the chances that this guy will hurt people.

                                              That is not “dismissing” concerns, that’s evaluating them… and that’s even doing so in the context of valuing her life as nothing.

                                              What they are doing is pretending it’s acceptable to tell her it’s her duty to let herself be raped and killed because her having a gun is unacceptable. This matches the whole “it’s best if the active shooter is the only armed person because more guns only increases the danger” line of argument.

                                              These are not sensible arguments, much less evaluations of risk, so much as signalling a phobia of guns. The line of thought seems to be anyone picking up a gun instantly transforms into a potential school shooter.

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                                    • “her having a gun reduces her own risk by quite a bit but increases lots of other people’s risks by a tiny bit that, taken together, outweighs her own risk reduction…”

                                      Interesting. Tell me more about how women should not be permitted to do a thing that reduces the risk of them being raped.

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                                      • You left off an “if” and added a conclusion I never offered.

                                        I didn’t say that analysis should be applied to whether or not she should be allowed a weapon; I took no stance on the matter. I took a particular lens to evaluate the legitimacy of the opposition and, under certain conditions, think their position is not as meritless as presented.

                                        I appreciate how disingenuously you interpretted my comment.

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                                        • Okay so how am I supposed to interpret “her having a gun…increases lots of other people’s risks by a tiny bit that, taken together, outweighs her own risk reduction” as anything other than a statement that someone should not be allowed to carry a gun? When you started out the post with “I’m thinking a bit utilitarian”, suggesting that you’re going to engage in a balancing effort to identify the best possible course of action?

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                                          • Because here is the full statement:
                                            “If C changes enough and/or the Random Student population is large enough that the total change of C is greater than the change in A… that is to say that her having a gun reduces her own risk by quite a bit but increases lots of other people’s risks by a tiny bit that, taken together, outweighs her own risk reduction… are the objections you noted beside “She’s being paranoid”* entirely without merit?”

                                            My discussion was not about the decision to allow her to have a gun but the degree of merit her opponents’ arguments carry. From a utilitarian perspective, they are not meritless.

                                            Thankfully, utilitarianism is not the only frame we have for analyzing situations like this.

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                                    • I think the utilitarian analysis is worth doing, and I largely agree with Chip’s perspective that paranoia about crime is totally divorced from reality. However when it comes to individuals I don’t think it can end there.

                                      Your chances of being framed up in the criminal justice system for most people is very low. There’s also a social cost of giving everyone a lawyer and some due process. But when it’s your ass on the docket, you’re very glad you have these things.

                                      I have a bark at the moon crazy neighbor who owns the condo below me. He has entered my home once and tried to enter it another time. I’ve gone through the process, gotten restraining orders, got him convicted of a misdemeanor. I’m not in a position to move, he hasn’t done anything to warrant serious jail time, and when we called the police they took over 90 minutes to arrive. One politely explained that my wife didn’t use the right buzz words with the 911 operator to get them there faster. I like to think I’m not particularly paranoid about crime. But when she was alone on maternity leave with my son, I was very glad a firearm that she knows how to use was among the measures available.

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                                      • I was applying the utilitarian analysis to determine the legitimacy of the objection, not to make an actual determination of what ought to be done.

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                              • Say 300K out of 126 million households works out to about 2 households out of a thousand that experience such terror.

                                Each year.

                                No, every month. Per year that’s about 3%.

                                Over 25 years you have slightly more than a 50% chance.

                                I mean, really how many people reading these comments have experienced this?

                                Me, last summer. He took a new chainsaw still in the box, no one was home.

                                And no, we didn’t arm up because of this. My estimation of my odds of needing a gun haven’t changed because of this.

                                There is something going on here, where the desire to get a gun comes first, and everything else is a pretext.

                                Clearly I don’t currently want a gun in the house because I don’t have one. I can deal with my current situation(s) via other means. However I do want the ability to change my mind and be able to arm up with a week or two’s notice if my risk assessment changes.

                                I’ve come very close to making that choice and the lifestyle changes that come with it, but not from a missing chainsaw.

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                                • No, every month. Per year that’s about 3%.

                                  Of which less than 10% involve a member of the household being a victim of a violent crime. FTM, the majority of burglaries happen when no one’s home (which make sense when you think about it).

                                  So I’m not sure is wrong on the numbers.

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                                  • So I’m not sure Chip Daniels is wrong on the numbers.

                                    If the issue is narrowly limited to home invasion, i.e. “burglary ending in homicide” then sure, that’s unlikely.

                                    However “crime” covers far more. Taylor Woolrich is worried about rape/kidnap/murder, any of which would be a crime. The criminal legal system is already involved and not working real well from her point of view.

                                    In terms of public perception, the war on drugs has led to dark places, and much more importantly, these school shootings shouldn’t be national news.

                                    If all local news is also national news, then we should expect distortions on people’s perceptions. This manifests irrationally both as people wanting to arm because of school shootings but also as people wanting to disarm because of school shootings.

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                                    • In terms of public perception, the war on drugs has led to dark places, and much more importantly, these school shootings shouldn’t be national news.

                                      If all local news is also national news, then we should expect distortions on people’s perceptions.

                                      Definitely agreed.

                                      A lot of rare outcomes (school shootings, violent home invasions by strangers) loom really large in the minds of both pro- and anti-gun people. Probably the best thing that can happen is having people less seized by generalized fear and anxiety over crime, which will mean that fewer people will get guns which make them less safe [1], fewer people without guns would want to take away other people’s guns, and everybody, no matter what their view on guns, would be less stressed about things that are very unlikely to happen to them.

                                      I want people to be able to make good decisions about how to best keep themselves safe. This means both ensuring that they have real freedom to make those decisions, and an environment that supports making those decisions in a careful, well-informed way.

                                      [1] Unlike, say, Ms Woolrich, who would be responding to a very real and specific danger.

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                                      • Exactly this.
                                        It is this fear, that is the problem more so than the actual crime itself.
                                        Putting it in conservative terms, the freedom and liberty that conservatives advocate become impossible in a climate of fear and anxiety.

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                                • HotCha has a point here. Mass shootings are still a drop in the bucket when it comes to violence.

                                  You can’t say this statistically unlikely violent event is insufficient to justify an action, while this other statistically unlikely violent event is, just because it gets more play in the media and happens to tug at a emotional string more effectively.

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                                  • I dunno about that last one, actually. The idea that all violent crime is worthy of an equally vigorous response is… one that isn’t consistent with any aspect of how we react to violent crime.

                                    I mean in this particular instance I favor letting people make their own choices to arm themselves, but the general argument bugs me.

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                                    • But the opposite is true as well, you can’t discount ‘this’ violent crime as not enough of a problem to justify allowing people their own options, while saying ‘that’ violent crime is a serious issue we need to do something about, especially when A) both are statistically unlikely & B) the reaction to ‘that’ violence impacts the ability to respond to ‘this’ violence.

                                      The smarter argument is, in most cases of home invasion, the perpetrators are part of the drug trade and often the victims are as well. The number of cases where the victims are completely innocent/not connected to some manner of black market barely rise above noise levels. Ergo, if we ended the war on drugs, a vast number of violent home invasions would disappear (including the ones the police conduct) and what we’d be left with is truly random crime and known issues (i.e. stalkers & crazy neighbors). That’s not nothing (and people should have some kind of affordable self-defense option), but it’s a lot harder to drum up fear inducing stats from that.

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                    • I think the people who are likely to be swayed by this argument are already very likely to have been swayed by it already. There’s a (seemingly) fundamental disconnect over how anti- and pro-guns partisans tend to think about safety, crime, and violence.

                      Decisions like Warren horrify a lot of people. But the people they terrify? Probably already have guns, or are at least profoundly protective of their right to get them in the future should their circumstances change.

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                      • I think that’s a good point, but Castle Rock and Warren both took place in a world that didn’t have social media.

                        All the more reason to suspect that this will be settled out of court, I guess.

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                • I understand where you’re going with the 2nd amendment question, but I suggest that “then the arguments about the 2nd Amendment…just got really, really, really, really, really good” would more accurately be rendered as “then the arguments about the 2nd Amendment…just got a little more support.”

                  All I know about this case is from the article you linked to and a few other things I’ve heard that may or may not be true. Whether the sheriffs were protecting people adequately or not is the real issue, not whether they were engaging in protection. The most common 2d amendment argument about cops I’ve heard isn’t that when the cops show up, they be cowards, but that the cops won’t show up.

                  In this case, the cops showed up. They were, as far as I can tell, on the scene trying to protect, e.g., by securing the area or waiting for a window of opportunity to take down the shooter or trying to assess how to take down the shooter more smartly than just charging in.* To me, a failure to fulfill a duty to protect is more like an officer not responding at all.

                  Now, I said the 2d amendment argument “got a little more support” and not “didn’t get any support whatsoever” because I can see how the specter of allegedly pusillanimous cops might serve the 2d amendment argument a little bit. But I just don’t see the needle moving all that much.

                  *For all I know, the sheriffs were all wrong and the right thing to do was indeed what they’re accused of not doing. Not being a sheriff, not knowing anything about law enforcement training, not having been under fire myself, and not having been at that particular shooting….I feel poorly equipped to judge.

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                  • The most common 2d amendment argument about cops I’ve heard isn’t that when the cops show up, they be cowards, but that the cops won’t show up.

                    There is no effective difference between those two things.

                    And it’s not even “cowards” (although that is a thing). It’s reasonable that the police show up and think they’ll just make things worse, or that they need intel, or whatever.

                    But this still brings us to the reality that the police’s interests and actions may not align with my own interests. I might be personally safer if the person next to me has a gun than if he doesn’t. My house might be safer if there’s a gun in it.

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                    • I see what you mean, but choosing to use one’s firearm (for self-defense) when the police are present is a different kind of choice than when they haven’t shown up yet.

                      But this still brings us to the reality that the police’s interests and actions may not align with my own interests. I might be personally safer if the person next to me has a gun than if he doesn’t. My house might be safer if there’s a gun in it.

                      I’m wary of this argument, but I can’t deny it’s an argument and a reason. I do believe in a “right” to self-defense and also that in a gun-heavy society, like ours, one has the “right” to own certain kinds of firearms for self-defense. I use scare quotes because I don’t believe that right exists on its own against government regulation. I’ll concede that with a 2d amendment, that right might exist.

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                  • There is a reason the training (and policy) for police is to seek and engage the shooter. To date, TTBOMK [1], no mass shooter has actually engaged any armed response once it made itself known. They either surrendered, ran, or suicided [2]. This means, statistically, the police are unlikely to shot at, and if they are, chances are pretty good the shooter will miss because they aren’t actually trying to kill a cop.

                    Also, police should understand cover and concealment, and how to move through a building so as to not leave yourself seriously exposed. That goes double for any school resource officer, who would be the obvious first responder to a school shooting.

                    As for the OP, I think the 2A question is kinda weak. But if the court holds to precedent, it will further erode trust in the police, as well as continue to damage the hero warrior image a lot of departments like to wear for the public.

                    [1] & [2] I could be wrong, but if I am, the number who have seriously tried to engage police is in the single digits and I am betting most were going for suicide by cop.

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                    • I’ll take your word for it on the first two paragraphs. I’m still not sure we have enough information about the Florida shooting to decide what the cops ought to have done. Or, maybe “we” have enough info, but I don’t.

                      I agree with your penultimate paragraph.

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                      • Please. Don’t take my word for it. The links for Castle Rock and Warren are in the original post. Be mindful that both cases refer to really horrible events and if you’re ready to ready about these horrible events, gird your loins and read about the court cases.

                        DTA. Don’t Trust Anybody.

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                    • Exactly.

                      As far as I’m concerned, my tax money goes to pay for people to “run to the gunshot” not “contain and secure perimeter.” That needs to be done too, but if there is an active shooter, a cop’s is to go in, and to sacrifice his life for another’s if necessary. If a cop can’t or won’t do that, GTFO.

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                      • I am still of the mind that if police want to play soldier and maintain the hero warrior image, they need to be under the UCMJ (or something very like it). Then we could drag these guys up on charges of cowardice.

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                          • Oh, so many things.

                            Honestly, if a person is in a job where they are expected to go about armed as part of their duties and they have the legal authority to use lethal force, they should be under something like the UCMJ.

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                            • I see where you guys are going but I respectfully dissent. Yes we have a double standard right now where the police get to dress up and talk like they’re going into Fallujah but then aren’t subject to anything like the accountability of people who actually went into Fallujah. I’d be worried that subjecting them to something like the UCMJ would only further entrench the idea that police are a different breed, and an occupying force. It could help justify the militarization instead of pull it back. And it’s not like the 4th Amendment and tort law aren’t capable of setting standards. The policy decisions we’ve made not to can be changed without resorting to a separate standard of conduct. They’re supposed to be citizens like everyone else and the law should reflect that.

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                              • That is kind of my point. If the police insist on holding themselves separate from the citizenry, then they need to be under the UCMJ. I suspect that if such a thing actually happened, the ranks of the police would empty out dramatically. They already enjoy so many double standards that we might as well put them under the other standard we’ve already formerly codified and that we know works well.

                                Ideally, I’d like them to revert to “citizens who are employed to put their attention toward crime full time” and lets do away with both the egregious double standards and the ridiculous hero worship.

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                                • We’re in agreement. I too would find police behavior a lot easier to understand if they were subject to the UCMJ. I’d still disagree in principle but I’d get the logic. Really its sad we even have to have the conversation.

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  3. The only claim I am aware of would be under the state-created danger doctrine:

    First, in order for the Due Process Clause to impose upon a state the duty to protect its citizens, the state, by its affirmative acts, must create or increase a danger faced by an individual.

    Second, the failure on the part of the state to protect an individual from such a danger must be the proximate cause of the injury to the individual.

    Third, because the right to protection against state-created dangers is derived from the substantive component of the Due Process Clause, the state’s failure to protect the individual must shock the conscience.

    The case I linked to involved a house party in Chicago where a bunch of people were fighting each other. The police arrived at the scene, and told someone to drop their weapon (a wooden board). Subsequently, someone appeared out of nowhere and beat the unarmed man twice in the head with a metal baseball bat, killing him.

    I became aware of this case because the judge refused to dismiss the case without discovery, and Chicago PD complained that they were damned if they do, damned if they don’t. The gist of the ultimate ruling seemed to be that the situation differed from that in which two people are poised to harm each other and the police only take action to disarm one.

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    • Overall, good call.
      This is mostly correct. The “shock the conscience” standard is not applicable in all cases.

      From the Third Circuit Pattern Jury Instructions, beginning on p. 186 (bracketing in original):

      4.14 Section 1983

      State-created Danger

      Model

      [Plaintiff] claims that [he/she] was injured as a result of [describe alleged conduct of defendant official or officials]. Under the Due Process Clause of the Fourteenth Amendment, state officials may not deprive an individual of life, liberty, or property without due process of law. The Due Process Clause generally does not require the state and its officials to protect individuals from harms [caused by persons who are not acting on behalf of the government][that the government did not cause]. However, the Due Process Clause does prohibit state officials from engaging in conduct that renders an individual more vulnerable to such harms.

      In this case, [plaintiff] claims that [defendant] rendered [him/her] more vulnerable to harm by [describe the particular conduct]. To establish this claim, [plaintiff] must prove all of the following four things by a preponderance of the evidence:

      First: [The harm to [plaintiff]] [describe harm to plaintiff] was a foreseeable and fairly direct result of [defendant’s] conduct.

      Second: [Defendant] acted with [conscious disregard of a great risk of serious harm][deliberate indifference].

      Third: There was some type of relationship between [defendant] and [plaintiff] that distinguished [plaintiff] from the public at large.

      Fourth: [Defendant’s] action made [plaintiff] more vulnerable to [describe the harm].

      The first of these four elements requires [plaintiff] to show that [the harm to [plaintiff]] [describe harm to plaintiff] was a foreseeable and fairly direct result of [defendant’s] conduct. This element includes two related concepts: foreseeability and directness. Foreseeability concerns whether [defendant] should have foreseen [the harm at issue] [that [describe harm]]. Directness concerns whether it is possible to draw a direct enough connection between [defendant’s] conduct and [the harm at issue] [describe harm]. To consider the question of directness, you should look at the chain of events that led to [the harm at issue] [describe harm], and you should consider where [defendant’s] conduct fits within that chain of events, and whether that conduct can be said to be a fairly direct cause of [the harm at issue] [describe harm]. In appropriate cases, the sufficient directness requirement can be met even if some other action or event comes between the defendant’s conduct and the harm to the plaintiff.

      Then follows conditional instructions for deliberate indifference and gross negligence with respect to the second element.
      The positive act requirement is essentially a formality of pleading; e.g.:
      That Defendant ________ acted to willfully neglect . . . ”

      Now, the caveats:
      1) This concerns civil liability, and not criminal liability.
      2) Most Americans have no enforceable rights whatever under the U.S. Constitution (or any other) anyway, due to: a) The fact that most Americans are judgment-proof, and b) inability to sustain suit is effectively the obverse of being judgment-proof.

      In consideration of #2:
      Bringing more people into the courts for vindication of rights (as opposed to drive-by shootings, or some other popular method) necessarily entails ensuring fewer people are judgment-proof.
      As the saying goes, you can’t squeeze blood out of a turnip, but you can sure kick the living hell out of one.
      The question is: How are we going to kick the living hell out these turnips in lieu of squeezing blood from them?
      Whatever the answer is, that is the price of maintenance of rights.

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  4. A state is supposed to protect its citizens. However, accountability for this is almost always political, rather than legal. I realize none of these opinions really reference that, but it really seems to be what’s going on. As such, I see the new lawsuit as a political act, not merely a legal one.

    Which is in line with another principle, which is that the rule of law is superseded by politics. That is, the ultimate accountability in this country is political. If we get to a place where we collectively decide we don’t care about rule of law, then lawsuits don’t matter at all. With reference to Andrew Jackson, this is euphemistically known as “popular sovereignty”.

    And, by the way, I note that a better universal health care system would render claims against money costs of recovery from injuries mostly non-existent.

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  5. Incentives.

    MIRAMAR, Fla. – Two South Florida police officers who responded to last month’s school shooting from a neighboring city have been temporarily suspended from the SWAT team.

    Miramar Police Department spokeswoman Tania Rues said in an email Wednesday that the officers didn’t advise supervisors that they were going to Marjory Stoneman Douglas High School in Parkland.

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  6. New Information.

    Roundly vilified for not entering a Parkland high school during a mass shooting, Broward Deputy Scot Peterson insisted publicly that he believed that gunfire was happening outside on campus — not from inside the building.

    But internal radio dispatches released by the sheriff’s office Thursday show Peterson immediately fixated on Building 12 and even radioed that gunfire was happening “inside.”

    And, just as school shooter Nikolas Cruz was fleeing the building after killing 17 people, Peterson warned his fellow officers to stay away — even as wounded students and staff lay inside.

    BSO policy calls for deputies to engage an active shooter and eliminate the threat.

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  7. I’ve been thinking a lot about how to talk to children about cops in light of recent events and my work with the little ones, as both a dad and an educator. The police are often a topic of interest for young kids for a host of reasons.

    My current landing spot for this is to tell kids that it’s the police’s job to help people. I avoid saying, “The police help people,” because, well, not all police do help all people. I want them to grow up with the expectation that the police are supposed to help so that when this isn’t the case, they will stand up for change.

    This case may have me going back to the drawing board.

    On a semi-related note: as we walked back from the bakery today, a police car with its lights and sirens on zoomed passed on. LMA noticed and I asked him where he thought they were going. “To help someone.” I’m glad that this was his answer instead of, “To get bad guys,” or something to that effect. In addition to what I said above, I think we also need to steer clear of the narrative that the police “get bad guys”… for whatever definition of “get” and “bad” and “guys” those kids (or adults) are holding on to.

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    • This is where the damage is really being done.

      The fact that teachers are changing how they talk about cops to kids?

      My current landing spot for this is to tell kids that it’s the police’s job to help people. I avoid saying, “The police help people,” because, well, not all police do help all people.

      Dude. That should be posted on every single police message board in the country.

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      • I plan on telling my son that they’re like the people who work at the MVA. They’ve got an important job, and sometimes you might have to work with them for things you need, but always remember they take care of themselves first and foremost. Rely on yourself, not them.

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        • That’s probably a good message for an older set, though I’d have to think it through a bit more. I’m largely talking about the under 5 set (LMA is about to turn 3).

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          • I know what you mean. Mine isn’t even 1. I have no idea what I’ll tell him between the time he knows what the police are but isn’t capable of understanding the above. At least I have some time to think about it.

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      • And that’s before we think about what messaging we might want to send to the groups who are much less likely to get their help. What should we be telling kids of color? Women?

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  8. New Information.

    They have footage of one of the deputies from after the shots start being fired.

    From the article:

    It begins shortly after gunfire erupted, with Peterson and civilian security monitor Kelvin Greenleaf walking with purpose outside an administration building, clearly alarmed by sounds. When the fire alarm is triggered — apparently by the smoke of the gunfire — the two begin running, get into a golf cart and speed toward Building 12.

    The angle of the remaining footage shows the two pull up to the southeast corner of Building 12 as what appears to be a group of students – the images are blurred under orders from the judge – appear to be moving about frantically on a lawn. Peterson and Greenleaf can be seen waving, then the school officer assumes a position that is partially obstructed by a pole.

    The footage apparently shows Peterson remaining in that area for the next 20-plus minutes of the clip. Greenleaf appears to leave the view. Other officers show up, though it is not clear from the video whether they are BSO or Coral Springs officers, and students are eventually led out of the building.

    The footage does not show Cruz, who shot up the inside of the school for about six minutes. It took officers 11 minutes to finally enter the building from the time the shooting was first reported.

    Broward Sheriff Scott Israel publicly condemned Peterson, who resigned but has insisted he followed his training. The longtime campus cop, through his lawyer, said he believed the gunfire was coming from outside Building 12; police radio dispatches, however, suggest Peterson knew gunfire was happening inside and he even ordered fellow cops to stay away.

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