Duty To Protect (Update)



Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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91 Responses

  1. Avatar greginak says:

    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

    • Avatar Jaybird says:

      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

    • Avatar Kolohe says:

      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

      • Avatar Jaybird says:

        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?


  2. Avatar Morat20 says:

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

    • Avatar Dark Matter says:

      I think you think you’re being sarcastic… but…Report

    • Avatar Jaybird says:

      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

      • Avatar dragonfrog says:

        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

        • Avatar Jaybird says:


          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

          • Avatar pillsy says:


            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

            • Avatar Oscar Gordon says:

              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

              • Avatar Jaybird says:

                Yeah, the old joke was “when seconds count, police are two minutes away!”

                Now we’re discussing whether police have a duty to protect when they get there.Report

              • Avatar pillsy says:

                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

              • Avatar Jaybird says:

                There’s a ton of focus on all sorts of really rare but shocking events.

                Like school shootings?Report

              • Avatar pillsy says:

                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

              • Avatar DensityDuck says:

                February 2018: school shootings happen like every day and that’s why we need to ban guns
                November 2018: school shootings hardly ever happen and that’s why you shouldn’t care if we ban gunsReport

            • Avatar Jaybird says:

              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

              • Avatar pillsy says:

                I can believe other people would focus on almost anything.

                But I think people who focus on this particular thing are likely to have a firearm already.Report

              • Avatar Chip Daniels says:


                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

              • Avatar Jaybird says:

                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

              • Avatar Chip Daniels says:

                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

              • Avatar Jaybird says:

                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

              • Avatar Chip Daniels says:

                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

              • Avatar Jaybird says:

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

                Wait until you see how confused the public gets.Report

              • Avatar Chip Daniels says:

                You sure you are not just universalizing your particulars?

                I’m not seeing any big impact of this on how the public views law enforcement,.Report

              • Avatar Kolohe says:

                Of course, aggregating ‘the public’ as to have it possess a single view of law enforcement is itself a mistake.Report

              • Avatar Jaybird says:

                This allows the view of “the public” to get even *MORE* confused.Report

              • Avatar JoeSal says:

                Jay, next up is “Does the military have a Duty to Protect?”.Report

              • Avatar Jaybird says:

                I think it depends on how this plays out.

                Because, this time, it’ll play out on social media.Report

              • Avatar dragonfrog says:

                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

              • Avatar Jaybird says:

                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

              • Avatar dragonfrog says:

                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

              • Avatar pillsy says:

                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

              • Avatar dragonfrog says:

                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

              • Avatar Morat20 says:

                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

              • Avatar dragonfrog says:

                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

              • Avatar Morat20 says:

                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

        • Avatar Dark Matter says:

          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

          • Avatar dragonfrog says:

            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

        • Avatar Damon says:

          “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

        • Avatar Iron Tum says:

          we rapidly reach the point

          How rapidly?

          outstrips by a couple orders of magnitude the number of lives saved by good guys with guns.

          Again, a quantitative and empirical claim. And one I find extremely unlikely to be true. Since the best data (such as it is) indicates that the defensive use of firearms is in the millions, claiming that hundreds of millions of people are going to die in the US from gunfights seems unlikely.

          Especially more than two years in a row.Report

  3. Avatar Oscar Gordon says:

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

    • Avatar pillsy says:

      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

      • Avatar Jaybird says:

        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

  4. Avatar Jaybird says:

    Someday we’re going to ask the question whether police have the duty to raid the correct homes.Report

    • Avatar InMD says:

      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

      • Avatar Jaybird says:

        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

        • Avatar InMD says:

          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

          • Avatar pillsy says:

            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 @jaybird 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

            • Avatar Chip Daniels says:

              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

              • Avatar pillsy says:

                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

              • Avatar Chip Daniels says:

                I agree, but we shouldn’t confuse holding the police accountable with abandoning the idea of a trusted police.Report

              • Avatar Oscar Gordon says:

                Trust and accountability are intrinsically linked when it comes to authority. Both must exist.Report

              • Avatar Dark Matter says:

                …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

            • Avatar Aaron David says:

              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

            • Avatar InMD says:

              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

  5. Avatar J_A says:

    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

    • Avatar dragonfrog says:

      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

  6. Avatar Jaybird says:

    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.


  7. Avatar Jaybird says:

    Looks like a judge did not agree with Scot Peterson’s argument:

    The only armed deputy stationed at Marjory Stoneman Douglas High School the day of Nikolas Cruz’s deadly rampage asked a Broward judge on Wednesday to find he had “no legal duty” to protect the students and faculty from harm.

    The judge rejected his argument.

    Scot Peterson, who resigned from the Broward Sheriff’s Office in late February and is accused of shirking his responsibility by hiding instead of confronting Cruz, wanted Broward Circuit Judge Patti Englander Henning to dismiss a lawsuit filed by the family of Meadow Pollack, one of 17 people shot and killed in the Parkland school on Feb. 14.

    “We want to say he had an obligation, but the law isn’t that,” said Peterson’s lawyer, Michael Piper. “From a legal standpoint, there was no duty.”

    Englander Henning saw it differently, finding Peterson had a duty to the school community as someone whose job was security and who had an “obligation to act reasonably” under the circumstances of the shooting.

    The judge also found Peterson was not protected from the lawsuit by “sovereign immunity,” a legal doctrine that shields public employees from legal action based on their official conduct.

    Piper said he would appeal the ruling.


    • Avatar Em Carpenter says:

      A motion to dismiss at this stage (when clearly discovery is ongoing) is an extremely high burden. The movant would have to prove that the complaint, even if taken as true, could not entitle the plaintiff to relief. That is almost never granted. Qualified (not sovereign) immunity is one of the more common reasons why it would be granted.

      But I think the Judge in the other ruling mentioned below has it correct based on precedent.Report

  8. Avatar Jaybird says:

    There’s been another ruling:

    A federal judge says Broward schools and the Sheriff’s Office had no legal duty to protect students during the shooting at Marjory Stoneman Douglas High School.

    U.S. District Judge Beth Bloom dismissed a suit filed by 15 students who claimed they were traumatized by the crisis in February. The suit named six defendants, including the Broward school district and the Broward Sheriff’s Office, as well as school deputy Scot Peterson and campus monitor Andrew Medina.

    Bloom ruled that the two agencies had no constitutional duty to protect students who were not in custody.

    “The claim arises from the actions of [shooter Nikolas] Cruz, a third party, and not a state actor,” she wrote in a ruling Dec. 12. “Thus, the critical question the Court analyzes is whether defendants had a constitutional duty to protect plaintiffs from the actions of Cruz.

    “As previously stated, for such a duty to exist on the part of defendants, plaintiffs would have to be considered to be in custody” — for example, as prisoners or patients of a mental hospital, she wrote.

    Two cases, two rulings that don’t agree with each other.

    This might make it all the way to SCotUS.Report

    • Avatar DensityDuck says:

      Interesting. Of all the things that the Roberts Court does, this might be the one that really does bring about the Conservative Apocalypse that everyone’s been scared about. A ruling that the police have no constitutional duty to protect any individual citizen seems much closer to a corporate oligarchy nightmare world than Citizens United.Report

    • Avatar Stillwater says:

      I haven’t read it yet but the word “traumatized” jumped out at me. If the argument is that the Broward cops had a duty to protect the students from emotional trauma arising out of the shooting, I could see how the judge would conclude that no such obligation exists.Report

    • Avatar Oscar Gordon says:

      Wasn’t this decided in Warren?Report

      • Avatar Jaybird says:

        I would have thought that it was Castle Rock v Gonzales that decided it, but I think that the fact that the cop was THERE ON SITE changes enough to say that this hasn’t yet been officially decided yet.

        Edit: but re-reading Warren, the argument could be that the cops in Warren didn’t know how bad it was and then that shouldn’t be held against them. This is a case where the cops *KNEW* how bad it was.

        Also, Warren was district level.Report

  9. Avatar Jaybird says:

    A small update:

    Broward County Sheriff Scott Israel was suspended from office Friday by Florida’s new governor, a move that comes after nearly a year of intense criticism over how the sheriff’s office responded to a rampage inside a Parkland, Fla., high school.

    Gov. Ron DeSantis, a Republican who took office on Tuesday, traveled to Broward to announce his decision to remove Israel, a Democrat reelected to a second term in 2016. Israel became a lightning rod after revelations that one of his deputies failed to confront the shooter and that, long before the first shot was fired, the Broward Sheriff’s Office had repeated contacts with the former student charged with killing 17 people at the school.

    In his executive order, DeSantis highlighted these and other details in explaining why he made the unusual decision to dismiss an elected official, stating that Israel “egregiously failed” in his role as the top law enforcement officer in Broward.

    “The neglect of duty and the incompetence that was connected to the massacre at Marjory Stoneman Douglas High School has been well documented,” DeSantis said at a news conference, joined by relatives of some Parkland victims. “Suffice it to say that the massacre might never have happened had Broward had better leadership in the sheriff’s department.”


  10. Avatar DensityDuck says:


    Former Deputy Scot Peterson has been arrested & booked into Broward County Jail as part of FDLE’s investigation into the law enforcement response during the Parkland school shooting. 7 felony charges, 4 misdemeanors and 1 county of perjury.Report

  11. Avatar Jaybird says:

    In the thread, it’s pointed out that this isn’t (er, shouldn’t be) a criminal matter but a *CIVIL* one (Qualified Immunity, don’tchaknow).

    We’re going to see this go all the way to the SCotUS on the strength of the defense that the guy was merely a coward and not a criminal (but that shouldn’t be covered by Civil Liability).Report

    • Avatar veronica d says:

      I certainly think he failed to perform his duty. However, I’m not sure if that should be a crime.

      That said, I’m also not sure if it shouldn’t be a crime. How should this work for police? Is it a crime for a soldier to abandon their duty? A firefighter? A nurse? I don’t know.

      I know this: if we’re going to have armed police in schools, we should expect those police to step up if an emergency occurs. If they aren’t going to do that, then they shouldn’t be there.Report

      • Avatar Jaybird says:

        Yeah, but (apparently) Qualified Immunity is Qualified Immunity.

        The argument that it shouldn’t be a criminal act is one that I find interesting. I find arguments for and arguments against to be persuasive.

        But it, 100%, strikes me as grounds for a *CIVIL* case.

        Unfortunately, applicable legal precedent seems to reside within the two cases of Town of Castle Rock v. Gonzales and Warren v. District of Columbia (and, seriously, trigger warning on both of these awful, awful cases).

        The decision for these 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.

        If that precedent holds? I dunno. I’d be interested in hearing arguments that it doesn’t apply here… because the arguments that I come up with don’t give me substantial hope. Maybe others can come up with better arguments.Report

        • Avatar Fish says:

          We could potentially find ourselves in a situation where, not only do police not have any obligation to actually police, but based on Nieves v. Bartlett, when they do decide to police, policing is whatever the police say it is.Report

          • Avatar Philip H says:

            We could potentially find ourselves in a situation where, not only do police not have any obligation to actually police, but based on Nieves v. Bartlett, when they do decide to police, policing is whatever the police say it is.

            Cause there”s NO WAY that goes wrongReport

          • Avatar Jaybird says:

            I hadn’t heard of Nieves v. Bartlett before now.

            Ugh. What an awful case.

            (And it strikes me as an indicator that the court is likely to find that Anthony Borges (among other students) does not have grounds to sue Law Enforcement for how they botched the shooting.)Report

            • Avatar Stillwater says:

              Here’s an interesting quotation from Wikipedia I want to focus on to make a point about the ‘reasonable person” standard:

              unless officers under the circumstances would typically exercise their discretion not to make an arrest.

              With the usual caveats that this is Wiki quote and not a quotation from the decision, I think it’s instructive to notice how many degrees from a reasonable person standard the court has moved when evaluating cop behavior. In this case, they’re not basing their decision on a “reasonable person’ standard, but what officers (1) under the circumstances (2) would typically do (3).

              Basically, the courts have allowed cops to determine what constitutes “reasonable” behavior, hence whether their behavior is legal or not.Report

              • Avatar Jaybird says:

                I can appreciate the argument that cops need to be given some amount of discretion in their job. Fair enough, I had to explain to somebody in lower management today that troubleshooting when you don’t know what’s wrong can’t really be proceduralized. But if cops are getting away with murder, then we’re in a place where the pendulum has swung too far.

                And cops are getting away with murder.Report

              • Avatar Stillwater says:

                Something that nags at me every time these topics arise, is why? Why do the courts *consistently* side with cops on (almost!) every case they hear?

                Where did this come from? Surely it goes beyond the trivial partisan political analyses we normally hear. It’s mystifying. Perplexing. Worrying.Report

              • Avatar Jaybird says:

                The incentives of the institution are such that people who do the right thing are punished and people who protect the institution are rewarded.

                Iterate that game for several decades and this is what you get.Report

              • Avatar Stillwater says:

                As long as “doing the right thing” and “protect the institution” are localized to the US, I’m cool with that explanation. Otherwise other countries are counterexamples. And frankly, I’m just not buying an institutional analysis of this anymore. 🙂

                So what is it about the US which makes it relatively unique in rewarding not doing the right thing because it serves “institutional” interests? I mean, we have the highest incarceration rate in the world, right?*

                My guess is that if you take *that* as the starting point, you’ll be stuttering to provide an account of why that’s so.

                *Pinky’s observation that we’re ranked behind the Seychelles notwithstanding.

                Add: I have a theory about this, one I’ve articulated over the years. No one agrees with me. {{It has to do with punition.}}Report

              • Avatar greginak says:

                For one thing it seems far more common for prosecutors to become judges then public defenders. So there is that bias baked in. Also in places which have elections for judges or even retention elections it is far more likely for a judge to get elected based on being tough on crime or to get booted for not being tough in a high profile case.

                The tough on crime peeps have been far louder over the last few years then the “soft” on crime folks.Report

              • Avatar Stillwater says:

                Sure, I get that greg. But as a matter of common sense reasoning, judges arguments about cops’ use of force and so on are absolutely fucking absurd. Of course, I get the argument that the institutional structure judges operate in as they’re rising through the ranks cultivates a certain type of decision-making disposition in folks. They want to keep advancing. That’s very much a politically-based calculus. But once they’ve received a lifetime appointment to the bench, why persist with the self-interested adherence to institutional”-based decision-making rather than by a determination of what’s right?Report

              • Avatar Stillwater says:

                Thinking about it some more greg, I think the problem with the so-called “institutional critique” of our criminal justice system is that it let’s the populace off the hook, as if we all, collectively, would prefer something less punitive and carceral but we just can’t get there because of all this institutional inertia. I mean, I get the allure. We, as a society, the folks who create the culture in which our representatives are elected, just aren’t responsible for these bad outcomes…. I’m reminded of George Carlin. 🙂Report

              • Avatar Jaybird says:

                There are a lot of counter-examples to any explanation I’d want to give.

                I’d say that there was a lot of crime in the 80’s and 90’s and a lot of politicians lost their jobs due to “coddling” criminals rather than throwing the book at them.

                And that has had ripple effects ever since.

                Even now, listen to anybody defend Kamala Harris against attacks that involve her having been a prosecutor. (Well, the ones that don’t focus on how bad Trump is, anyway.)

                Or any crime, really. It’s a lot easier to discuss what needs to be done to the perps and have that escalate into a spiral of worse punishments than discussions of whether or not we ought to do a better job with zoning or whatever to prevent the stuff happening before it starts.

                The incentives for the culture are all wrong too.

                The incentives of the culture are such that people who do the right thing are punished and people who protect the culture are rewarded.

                (And, yes, there are multiple cultures. And multiple right things. And different cultures are protected by different things.)Report

              • Avatar Stillwater says:

                Or here’s another way to bring up the same point, Jaybird. You wrote

                The incentives of the institution are such that people who do the right thing are punished and people who protect the institution are rewarded.

                The problem with this explanation is that the vast majority of judges who dispense relevant rulings on these issues are like tenured professors: they have appointment for life. So the supposition is that there is an incentive *beyond* career advancement which motivates these people to consistently decide cases which extend or sustain cops’ (effectively) unilateral power to determine what’s legal with regard to use of force. But that’s not an institutional analysis, it’s a *cultural* analysis, no? Eg., they can’t be fired, right?Report

              • Avatar InMD says:

                Graham vs. Connor.Report

    • Avatar Stillwater says:

      “cowardice” like “collusion” isn’t a legal term. 🙂Report