Duty To Protect (Update)

Back in March, we discussed whether the police have a Duty to Protect.

A news article said that:

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.

Well, the lawsuit has moved forward. From the article:

Peterson took shelter rather than confront the killer, but he did not act with malice or bad faith, according to his attorneys, Michael Piper and Christopher Stearns of Fort Lauderdale. Therefore he can’t be held legally responsible for the deaths, they say in court documents.

Allegations against Peterson suggest only that he “opted for self-preservation over heroics,” the attorneys wrote.

Also from the article:

Peterson’s lawyers say police officers are responsible for injury only if the officer takes control of a situation and people are hurt as a result or if the officer creates risk.

A Florida statute gives immunity to officers for injury suffered as a result of what they do while on the job unless they acted in bad faith or exhibited “wanton and willful disregard of human rights, safety, or property, ” the attorneys say.

(For my part, I still suspect that the police will not be found to have a Duty to Protect and the precedents set in  Town of Castle Rock v. Gonzales and Warren v. District of Columbia (trigger warning on both those cases) will be further upheld by this lawsuit.)

Please do be so kind as to share this post.
Share

56 thoughts on “Duty To Protect (Update)

Since Aug 14, 2018 @ 21:20:

  1. I look forward to the NRA, Trump and R’s in congress/ state gov calling cops cowards and going hard after them to give them a positive duty to protect.

    Report

    • Well, there are a handful of theories of government out there that rely rather heavily on the whole thing where police have a duty to protect.

      I suppose it is clarifying to learn that whatever theory of government we’re operating under, it is *NOT* one of those.

      Report

    • The internet right has been calling Peterson a coward since almost day one, and has asserted that a lot of the the Broward County Sheriff’s initial media response was to try to cover up Peterson’s cowardice and the department’s general malfeasance. (It helps that the Broward County Sheriff is a Democrat, so they can make this line of attack cleanly)

      Report

      • Here’s CNN. The headline?

        Parkland school resource officer decried as coward gets princely pension of $8,702 a month

        They also link to Andrew Pollack’s (the father of one of the murdered students) tweet in which he says:

        The coward of broward, Scot Peterson is getting over $8k a month pension! He hid while my daughter and 16 others were slaughtered! How in the hell is he getting this?

        Report

  2. Clearly, this means we need more guns, to protect us when the good guys with guns hide from the bad guys with guns.

    Report

    • I don’t know that it necessarily leads us to *THAT* conclusion.

      But it does sort of falsify a handful of counter-arguments to the argument that people might need guns for self-defense.

      And quite a few assumptions about government in general, actually…

      Report

      • I don’t think that people never need guns for self defence.

        It’s just that, as we arm up “for self defence” we rapidly reach the point where the additional suicides, accidental shootings, and deaths in gunfights between two people armed “for self defence” that, in the absence of guns, might have resulted in someone needing an ice pack, outstrips by a couple orders of magnitude the number of lives saved by good guys with guns.

        I mean, I might need a hand grenade to defend myself at some point. But if I started carrying one around tomorrow, the smart money would bet that if that grenade ever blows anyone up it’ll be me.

        Report

        • Sure.

          But the arguments about how people should call the police if they feel threatened?

          Those arguments deflate in the face of the acknowledgment by the government that the police do not have a duty to protect you.

          Report

          • Maybe?

            In practice, “Don’t have an enforceable legal requirement to protect you,” does not entail, “Are not sufficiently likely to protect you to shift the expected cost/benefit trade-off of owning a firearm.”

            I know I’m being really pedantic here, but it seems like a meaningful difference to me.

            Report

            • In practice, I don’t think the likelihood of an officer who happens to be in the right place at the right time and who is willing to put their life on the line to protect you is a bet one should make. Couple that with stories about officers who are called to help who wind up arresting, injuring, or killing the person who needed help…

              I’d rather spend my efforts teaching people that the possibility that you’ll need a firearm is low (for most people); and that you should take a very critical look at exactly what your actual, versus imagined, threat level is; and that you need to take owning and carrying a firearm very, VERY seriously, because you are not a member of the Blue Gang, and don’t enjoy the structural protections afforded them for being careless with a firearm.

              Report

              • I think it depends on the sort of threats you think you’re likely to deal with.

                My knee jerk is the vast majority of people on any particular side of the guns issue are not assessing the risks in a particularly sensible way. There’s a ton of focus on all sorts of really rare but shocking events.

                Report

                  • Exactly like school shootings.

                    Also accidental firearm deaths, especially ones involving kids.

                    And (perhaps most relevantly for this subthread) violent home invasions. They’re pretty rare, and my understanding is a lot of them involve drug and gang shenanigans. Not that this makes them OK, of course, but it should factor in one’s risk assessment.

                    Report

            • Does it strike you as so self-evidently meaningful a difference that you cannot believe how other people would focus on the “no duty to protect” rather than the legal technicality of it merely referring to liability issues?

              Report

                • Yeah.

                  I think anyone who takes this legal principle and expands it into “I can’t count on the police so I need to arm myself!” is someone who already harbors Lone Gunman fantasies.

                  Report

                  • No, not my argument.

                    It’s more that the argument “You don’t need to arm yourself because you can count on the police!” has a demonstrably false premise in it after the “because”.

                    It doesn’t mean that you do need to arm yourself, of course… But that’s a different argument.

                    Report

                    • No, that doesn’t falsfy it.

                      Its like saying “you can count on airplanes being reliably safe” is falsified by a crash.

                      The argument is never “there is an absolute guarantee of safety” or “the police will always and everywhere protect you”.

                      Report

                      • This isn’t about asking for an absolute guarantee of safety, though.

                        This is about whether police have the duty to protect you if stuff actually goes down.

                        Here’s the opening line to the story I linked to above:

                        Many have called him a coward, but former sheriff’s deputy Scot Peterson had no legal duty to stop the slaughter at Marjory Stoneman Douglas High School, his attorneys say.

                        That’s the question. Do the police have a legal duty to protect?

                        I think that the assumption on the part of the public is that the police do, in fact, have such a duty. That’s why there’s such an outrage that Peterson acted in the way that he did.

                        I also think that a lot of things follow from establishing that there is no legal duty on the part of law enforcement to protect.

                        Some of them might even involve the enforcing of laws involving guns.

                        Report

                        • I think you are confusing the narrow legal duty with the broader requirement the public places on police departments.

                          The public demands a reasonable degree of protection, legal duty or not, and evidenced by the overly aggressive policing we complain about, I don’t think there is any reasonable fear of being let unprotected, even given this incident.

                          Report

                        • Jaybird: This is about whether police have the duty to protect you if stuff actually goes down.

                          That is one of a great many things it could be about. I don’t think it’s reasonable to assert that it’s the only thing it’s about. Heck, it’s not even on the top 5 things it’s about for me.

                          For me, this is what it’s about:

                          I look at the rate of violent crime where I live (quite low), and multiply it by the likelihood my owning a gun would save me from violence (unknown, possibly negative, but mostly irrelevant because it’s being multiplied by such a low number).

                          Then I look at my lifetime risk of suicide and those of my family members (decidedly non trivial), and multiply that by the increase in suicide risk associated with a gun’s presence in the home (about triple IIRC).

                          And there’s no question of owning a gun.

                          Police don’t even enter the picture.

                          Report

                          • Okay, fair enough.

                            You may be interested to know that there is currently a lawsuit where some of the parents of the murdered children are suing a Deputy that failed to go into the school to confront the shooter murdering their children.

                            The Deputy’s lawyers are arguing that the Deputy did not have a positive duty to confront the shooter.

                            Report

                            • I understand that, and that is irrelevant to whether it is sound risk management to purchase a gun, because suicide outranks homicide as a cause of death in the US by about 3 to 1.

                              So even if keeping a gun could reduce one’s risk of dying by homicide to zero (it can’t – in fact it roughly doubles the risk (adjusted odds ratio = 1.9, 95% confidence interval: 1.1, 3.4)), it would never be able to offset with the increased risk of suicide (adjusted odds ratio = 10.4, 95% confidence interval: 5.8, 18.9).

                              Unless your risk of dying of starvation because you can’t hunt is greater than double your homicide risk plus ten times your suicide risk, it is poor risk management to own a gun (and even that applies only to a hunting rifle, not a pistol, the more relevant “self defence” weapon).

                              Report

                              • This assumes that both the risk of a victim of criminal violence and the risk of suicide are uniform, but that seems very unlikely.

                                Owning a gun looks like a pretty bad idea on average, but that doesn’t mean it’s necessarily a bad idea for everybody.

                                Report

                                • I did say way up at the top that I didn’t think nobody needed a gun for self defence.

                                  I could accept that the population of US self-defence gun owners could have as many as 2% of people for whom carrying a gun constitutes sound risk management. If you remove the cops and gangsters, it might be as high as 0.5%.

                                  But, like, kids going to a high school, in fear of a pretty much definitionally random mass shooting at their school? Those people whose prefrontal cortices we keep being reminded are not yet fully formed? No. 0% of them.

                                  Report

                                  • I know about ten people, personally, who own guns for self-defense, three of which have concealed carry licenses.

                                    One of them (one of the ones with the CC license, and one of the others) has what might constitute an actual reason that passes any sort of objective smell test.

                                    The CC guy works in a rather crime-prone neighborhood in place that’s high up the list on “places people will rob by bursting in with a gun and no plan and probably on meth” (pawn shop). Of course, he’s also the one who fantasizes a lot about getting to be the hero, enforcing karma at the point of a gun, but that doesn’t mean he doesn’t have a higher-than-average risk of being part of a crime.

                                    The other has a stalker ex with a history of violence. (Unfortunately, she’s statistically more likely to have that gun used against her than use it herself, but she also has a higher-than-average risk of being assaulted).

                                    Everyone else, well….yeah. Statistically speaking, they’re far less likely than average to ever be the victim of any violent crime. I’d say “no crime” but at least two of them seem to be really, really keen on having their identity stolen.

                                    Report

                                    • Re: the pawn shop worker – there’s a reason banks instruct their tellers, if they’re ever robbed, to just hand over the money and let the robber get out of there as quickly and calmly as possible.

                                      The last thing they want is someone introducing a second gun into a situation that already has a first one. That’s when armed robbery turns into murder in the course of robbery.

                                      Report

                                      • I didn’t say it was a smart move, I just said he was one of the two people I know with “guns for self-defense” who are actually, objectively, at a higher than average risk of being a victim of a crime.

                                        Honestly, I dread it happening, because he really gets into that hero fantasy about pulling out his gun and the “punks” and “thugs” getting all scared and him being the big, edgy hero.

                                        The false security of his gun, and the clear power fantasies, makes him more likely to get shot.

                                        Report

        • as we arm up “for self defence” we rapidly reach the point where the additional suicides, accidental shootings, and deaths in gunfights between two people armed “for self defence” that, in the absence of guns, might have resulted in someone needing an ice pack, outstrips by a couple orders of magnitude the number of lives saved by good guys with guns.

          RE: Suicide
          It’s not a linear map. For example Hawaii stands out as having FAR fewer guns than any other state, but their suicide rate, while great, isn’t the best. One way to parse that is just a small amount of guns (far fewer than most states have) has a huge effect and the bulk of them after that has a smaller effect. Another is unrealistically harsh gun confiscation (say, taking 5 out of 6 guns) wouldn’t do anywhere close to what’s needed.

          RE: Gunfights
          Does this happen outside of the (already illegal to have firearms) criminal community?

          RE: accidental shootings
          Accidental or negligent shootings are in the triple digits (500). Homicide (11k) and suicide (21k) are both in the 5 digits. Good news accidental shootings are way down (50% over the last 16 years), bad news is since it’s in the small single digit percentages of the overall problem that’s not much overall.

          RE: the number of lives saved by good guys with guns.
          You can’t measure the stuff that doesn’t happen. If I feel my house is unsafe, the next level of escalation is to put a bunch of Pro-NRA stickers on the house (I already have a dog).

          It’d take a serious increase of risk for me to arm up, but it’s possible. Stickers give some of the advantages without any of the disadvantages.

          Report

          • Dark Matter: Stickers give some of the advantages without any of the disadvantages

            Maybe? Around here, guns are a common target of theft. Advertising that your house has something criminals want to steal might not make you safer from crime.

            Report

        • “It’s just that, as we arm up “for self defence” we rapidly reach the point where the additional suicides, accidental shootings, and deaths in gunfights between two people armed “for self defence” that, in the absence of guns, might have resulted in someone needing an ice pack, outstrips by a couple orders of magnitude the number of lives saved by good guys with guns.”

          Maybe…but it’s STILL lower than the number of people killed on the roads and no one’s talking about banning cars.

          Report

  3. I suspect that the status quo will persist and look forward to the myth of the hero cop getting a bit more tarnish.

    Report

    • I understand on some level why the status quo is the way it is on policy grounds.

      But the way politicians, police union reps, and other apologists say, “Oh, the cops are here to protect society!” after every police involved shooting, and then the courts always say, “Well, actually….” every time the cops don’t even really try to keep people from being murdered….

      I’m just going to trail off instead of seeing how many swear words I can think of.

      Report

      • I have recently started seeing the police as a gang. I’m lucky enough to present identically to someone affiliated with (though not necessarily a member of) this gang. I look like someone who is paid up on protection. (Heck, I *AM* someone paid up on protection.)

        This mental model has a lot more explanatory and predictive power than the official one involving the words “protect” or “serve” or whatever.

        Report

    • This is why I think a duty to protect is not something advocates of police reform should want. I am not a Florida lawyer, but my guess is that, absent a statute, the courts will not find a duty to protect. However, if they did, or if such a statute were passed, I predict that it would fuel even more militarized overkill. We’d go from way too many situations being treated as a gunfight waiting to happen to virtually every situation being treated that way.

      IMO the holdings in the cases you cited basically got it right, even if for a lot of the wrong reasons.

      Report

      • If we want to argue about unintended consequences, I can do that all day.

        For what it’s worth, I think that even more militarized overkill is likely to be a result of the government finding a positive duty to confront someone shooting children in a school.

        That said, I can’t see that the Deputy in question “opted for self-preservation over heroics” as being particularly compelling in the eyes of public opinion (assuming it’s a mass, of course) and if cooler heads prevail among the judiciary and they decide in the same vein as they did in Town of Castle Rock v. Gonzales and Warren v. District of Columbia, there will be unintended consequences to that as well.

        I see those unintended consequences playing out in the gun control debate.

        Report

        • My gut wants to agree with you but years of discussing the subject makes me doubtful. People who strongly believe in very strict gun control have fundamentally different assumptions about violence (individual and state), why it happens, and when its justified than I do. I, and I’d venture to guess you also, disagree with a lot of those assumptions/arguments but this won’t change theirs.

          The simple counter-argument is that there’d be no need for law enforcement heroics if weapons weren’t available and police were more fully guaranteed a supremacy of armed force in all instances. Make us like the UK where the police are the only ones who can bring guns to the scissor or butter knife fight and its all resolved. Maybe there are some people on the margins, and in rough neighborhoods who are sort of Democrats by default that are a bit more circumspect but those are probably people who already know that the police aren’t going to risk their lives for them.

          But it’s otherwise really easy to compartmentalize back into standard blue tribe v. red tribe views about whether the restrictions will actually work, who is harmed by it, where it ends, what the 2nd Amendment means, etc.

          Report

          • People who strongly believe in very strict gun control have fundamentally different assumptions about violence (individual and state), why it happens, and when its justified than I do.

            This gets to the heart of the issue. I don’t think it’s impossible to budge people on gun control (I have had some luck personally) but relying on the arguments that appeal to pro-gun people is very unlikely to work. If those arguments worked, well, gun control supporters probably wouldn’t be gun control supporters.

            It’s best to use arguments that sound like arguments liberals make (since that’s where most of the support for gun control lies), and this probably won’t work if you can’t pass an Intellectual Turing Test. I figure most commenters here are better equipped than usual to do that, though.

            Anyway, building on suspicion of the police is a good idea. But building on suspicion that the police aren’t good at protecting people is a bad idea, because liberals, unlike conservatives and libertarians, tend to believe the government is pretty effective. Here, you’re probably better off arguing the way the laws will be enforced will drive a lot of the same problems drug prohibition has, like mass incarceration, and police abuse and harassment of marginalized people.

            I think I’ve gone around with both you and about this before. Having had some time to think about it since then, the specific disconnect boils down to distrust of the police on the Left being rooted in a different worldview than distrust of government on the Right.

            Report

            • Fear is the easiest political weapon to use, but never leads to a good place.

              Witness how the fear of mass shootings only leads to further “fortress” mentality, which breeds a violent and alienated culture of individuals.

              Rather than suspicion and distrust of police, its better to foster trust and confidence in society as a whole.

              Report

              • It would be nice if the police were more trustworthy, but pretending law enforcement doesn’t have a longstanding practice of closing ranks around its most abusive members, and engaging in/justifying any number of discriminatory practices, will not help.

                Report

              • …its better to foster trust and confidence in society as a whole.

                I go back and forth with this. In general, I agree pretty totally… but there’s a difference between trusting society as a whole and expecting me to sacrifice myself when society fails me. If and when my needs diverge from the collective, I’d like the ability to put myself first.

                This is also my attitude for public education, I think it’s great, I think they normally do a good job, there have been some situations where I’ve decided the collective was mistreating me or mine and I’ve acted against the collective good.

                I don’t own a gun because my risks with one are greater than my risks without one… but I want the ability to arm up if I see trouble coming and I don’t trust the GC group to leave me that option.

                Witness how the fear of mass shootings only leads to further “fortress” mentality, which breeds a violent and alienated culture of individuals.

                I think the mass shootings are best viewed as a slow moving riot. The 50th shooter looks at how many others are doing this and figures it’s normal. Worse, he figures it’s a shortcut to fame and making his life special. They’re not doing it out of pain and alienation as a cry for help, they’re doing it to win.

                Report

            • the specific disconnect boils down to distrust of the police on the Left being rooted in a different worldview than distrust of government on the Right

              I think that is only one half of the issue. The other being what constitutes an individual responsibility vs. a gov’t responsibility.

              Report

            • We have gone around about it and you, along with others have convinced me that some of the civil libertarian arguments that I find persuasive aren’t to the progressive strain of thought which dominates team blue where most GCAs are. It’s why my go to is usually to ask why, regardless of how you interpret the 2nd Amendment, GCAs think mass criminalization will play out differently this time.

              This is one of the reasons I’m a liberal, not really a ‘progressive,’ and probably a pretty annoying ally to team blue. Even though I agree on a lot of the domestic policy goals I got there in a very different way, with different priorities, and with a much bigger dose of skepticism about state action, plus no particular affection for the DNC or anybody’s tribal shibbeloths.

              Report

  4. RE: Gunfights
    Does this happen outside of the (already illegal to have firearms) criminal community?

    Anecdotes are not data, but I’ve personally witnesed two (2) episodes of someone waving a gun at someone else in a congested parking garage (*).

    And there’s the famous case of the guy that shot the teenagers with the loud music when they were both parked at a convenience store in a gas station ( https://en.m.wikipedia.org/wiki/Shooting_of_Jordan_Davis )

    So I would argue that yes, regular people with guns near them are capable of getting into gun fights.

    I guess we should start a campaign “Friends don’t let friends drive with a gun in the car”

    ETA: This was supposed to be a response for Dark Matter, above

    (*) You know the drill. There was a show or a movie, it ended, and we all want to go home at th3 same time, and there’s the jerk that will start honking. And th3 bigger jerk that waves his gun at the honker.

    Report

    • Jeebus. I’m glad I live where I do then.

      At worst I’ve had a knife pulled on me trying to pull my dumbass then 18 year old neigbhour away from the fight he was trying to pick with some passing dumbass who had annoyed him by kicking a fence, or some such dumbass offence. I’ve probably had a knife pulled on me one or two other times I’m not remembering. But never a gun. But two-bit thugs around here basically don’t have guns.

      Report

  5. This seems vaguely tied to the whole “gun control” part of the argument related to whether the police (or adjacent) have a Duty to Protect:

    An F.B.I. agent facing a felony charge after the authorities said his gun went off and injured a bystander, after the off-duty agent did a back handspring at a Colorado club last month, can carry his gun again, a county judge said Tuesday.

    During a court appearance, David Goddard, a lawyer for the agent, Chase Bishop, 30, asked Judge Frances Simonet of Second District County Court in Denver to amend a protection order to allow Mr. Bishop to possess his service weapon again, said Ken Lane, communications director of the Denver District Attorney’s Office, in an interview Tuesday. Mr. Lane said prosecutors didn’t oppose the request because Tom Reddington, the injured bystander, did not object.

    “Agents are required to be armed at all times” unless instructed otherwise, according to the F.B.I.’s website.

    Report

Comments are closed.