March 13, 2023
For how short we are into 2023, the overload of horrific events in January alone displays some of America’s most critical flaws. We are nearing 50 mass shootings this month alone, along with the two high-profile shootings in Half Moon Bay and Monterey Park, California, which claimed the lives of 19 people in three days. [1] Mass protests erupted after Memphis released footage of the police killing of Tyre Nichols. [2] The footage shows five officers forcibly removing Tyre from his car and violently beating him on the ground; the department initially stated the traffic stop was on suspicion of reckless driving. These two types of tragedies illustrate a corrupt dichotomy between the institutional empowerment of police to fulfill our expectations and our trust in their lawful authority. In cases of mass shootings, we expect the police to intervene quickly with reasonable force when someone threatens our lives with imminent danger, and we give them a monopoly on violence to accomplish this end. In cases of minor legal offenses, we expect the police to simply investigate crimes through the least intrusive means with respect to our privacy and rights, yet, they often respond using their monopoly on violence in these cases targeting the unarmed and, sometimes, avoid using it in our defense against armed shooters. Officers respond to the incentives law prescribes, and those who choose to abuse their power do so when they feel unaccountable. The law incentivizes protecting their lives above ours. Even though officers responded swiftly in the recent California mass shootings, officers in Uvalde and Parkland chose inaction because no one is entitled to their protection or services.
After the Los Angeles Police Department pioneered the phrase in 1963, many police departments in the United States proudly display the motto; “protect and serve,” yet the law deceitfully provides almost no obligations for officers to adhere to the core promise in the popular mission statement. [3] Through a series of controversial cases, the federal court system established police have no constitutional obligation to protect people from the violence of other private citizens unless a special duty exists, primarily to the incarcerated. Therefore, in most states, if police officers witness you in the act of being physically assaulted and feel they would rather not face the threat themselves, you cannot sue them for watching idly.
For example, in 2011, New York City officers identified a serial killer in a subway car adjoining theirs but refused to apprehend the suspect until a bystander disarmed him after getting stabbed multiple times. [4] He had no pathway for legal recourse due to the following Supreme Court precedent.
In DeShaney v. Winnebago Cty. DSS (1989), the Supreme Court denied a plaintiff’s due process claim against her city’s social service department for failing to remove her son from his father’s custody, even after noting repeated evidence of child abuse. The Court decided her son, who suffered a coma because of continued beatings, possessed no specific or expressed duty from the city or state to protect him from violence from a private citizen. [5] The Court expanded this precedent to a controversial extent in the case Castle Rock v. Gonzales (2005). The Court declared a restraining order reciting state law in bold capital letters with the phrase “YOU SHALL ARREST” did not create a “mandatory obligation” for officers to even attempt an apprehension of the violator due to the plaintiff not having a “property interest” in the enforcement of the restraining order and the word “shall” not meaning “must.” [6]
In America’s unmanageable epidemic, mass shootings, this legal precedent complicates grieving parents’ struggle for recourse. Current lawsuits against Uvalde police, who waited over an hour to do anything while a shooter rampaged through an elementary school classroom, will likely fail due to prior legal decisions. [7] A lower court previously dismissed a similar civil suit in Parkland, but victims’ families still managed to receive a multi-million dollar settlement from the FBI in a negligence suit. Victims in the 2015 Charleston, South Carolina shooting also received FBI settlements. [8] [9] Qualified immunity protects state and local police from similar liability unless a gross constitutional violation occurs. [10] However, the parents in these cases still deserve at least some form of legal accountability from their local police departments, whether in the form of payment or a comparable punishment to encourage better future policing.
Luckily, at the end of the Court’s opinion, Justice Scalia proposes:
“Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871 did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people are free to craft such a system under state law.” [6]
So let us take his advice and create such a system. 2023 is a new year with potential for change. America’s legislatures have the potential to make the laws necessary for the police to properly fulfill what citizens expect of them. Every state should legislate mandatory obligations for police officers to protect private citizens from probable sources of violence. When done, we may finally hold police liable for dereliction and up to the standards of their pay grade.
In this proposed legislation, when an officer willfully refuses to attempt reasonable interventions to stop a violent crime from a private citizen, the victim may file a civil suit against the police department for financial damages, which the law requires the city to pay if liable. After a successful suit, the police department must fire any officer responsible. While qualified immunity protects police from legal punishment involving actions performed during the performance of their job, the officer must at least face some personal penalty to act as an effective motivator.
Utilizing this legislation, we should require officers to defend us under the law because it is the purpose of safety driving our localities to sacrifice so many resources and powers to police departments in the first place. Currently, police seem entitled to our money and submission in return for a weak promise of protection. Due to the state of police obligations now, we gamble a brave officer comes to our aid when we need it if anyone at all.
Image via Pexels Free Photos.
[1] “Mass Shootings in 2023.” n.d. Gun Violence Archive. Accessed January 29, 2023. https://www.gunviolencearchive.org/reports/mass-shooting?sort=desc&order=Incident%20Date.
[2] Rojas, Rick. 2023. “Memphis Police Disband Unit Whose Officers Were Charged in Tyre Nichols’s Death.” The New York Times, January 29, 2023. https://www.nytimes.com/2023/01/28/us/scorpion-memphis-police-tyre-nichols.html.
[3] Los Angeles Police Foundation. n.d. “LAPD Motto – LAPD Online.” Los Angeles Police Department. Accessed February 12, 2023. https://www.lapdonline.org/lapd-motto/.
[4] Boniello, Kathianne. “City says cops had no duty to protect subway hero who subdued killer.” New York Post, 27 January 2013, Accessed 19 January 2023. https://nypost.com/2013/01/27/city-says-cops-had-no-duty-to-protect-subway-hero-who-subdued-killer/
[5] “DeShaney v. Winnebago Cty. DSS,” 489 U.S. 189, 1989 https://supreme.justia.com/cases/federal/us/489/189/
[6] “Castle Rock v. Gonzales,” 545 U.S. 748, 2008, https://supreme.justia.com/cases/federal/us/545/748/#tab-opinion-1961907
[7] Diaz, Jaclyn. “Uvalde survivors file a $27 billion class-action lawsuit against police and others.” NPR, 2 December 2022, Accessed 19 January 2023. https://www.npr.org/2022/12/02/1140119739/uvalde-shooting-survivors-class-action-lawsuit
[8] Chappell, Bill. “Families in Charleston church massacre reach $88M settlement with DOJ.” NPR, 28 October 2021, https://www.npr.org/2021/10/28/1050035997/charleston-church-shooting-doj-settlement-families. Accessed 19 January 2023.
[9] Lucas, Ryan. “Families of Parkland shooting victims settle lawsuit with DOJ for about $130 million.” NPR, 22 November 2021, https://www.npr.org/2021/11/22/1058202604/families-of-parkland-shooting-victims-settle-lawsuit-with-doj-for-about-130-mill . Accessed 20 January 2023.
[10] “Pearson v. Callahan,” 555 U.S. 223, (2009). https://supreme.justia.com/cases/federal/us/555/223/
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