When Individuals Must Protect Themselves

By | July 18, 2013 | 0 Comments

Don B. Kates Jr., J.D.
Recently Florida Judge Alex Ferrer, who frequently comments on legal issues, gave a very unusually frank evaluation of the now-ended case against George Zimmerman. Judge Ferrer flatly stated that the case should never have been brought; that the prosecution never had the evidence but brought the case only because of unjustified political pressure and in the vain hope that evidence would eventually appear; and that George Zimmerman, he expects, will probably bring a civil case for damages against the prosecuting local authorities.
Noting that the defense barely mentioned the Florida “stand your ground” law, Judge Ferrer said it had had little relevance, because the case against George Zimmerman was too weak to even require the defense to raise “stand your ground.”
In fact, the lynch-George-Zimmerman mentality among some segments of the public represented a combination of legal misunderstanding and factual inaccuracy, as the following analysis shows. It is simply not the case that victims never need to defend themselves, but should depend on the police instead. It is utter foolishness to think that George Zimmerman should have waited for the police instead of defending himself against having his head pounded into the concrete sidewalk.
There is no right to “police protection.”
A leading modern U.S. Supreme Court case is Town of Castle Rock v. Gonzales. Though two justices dissented on other grounds, the Supreme Court ruled unanimously that there is no right to police protection.
Majority opinion: local government has no duty “to protect from private violence [even when] an individual is shielded by a court’s restraining order” against the attacker. “Such individuals do not gain an enforceable interest in that protection.”
Dissenting opinion: “It is perfectly clear, that neither the Federal Constitution itself, nor any federal statute, granted respondent or her children any individual entitlement to police protection.”
Politicians perpetrate a scam by claiming that if police were only better funded, they would directly protect civilians.
What the politicians mean – but never clearly say – is that the police protect indirectly by general patrol which may deter crime.
But the fact is that if that doesn’t prevent crime and victims sue for non-protection, the politicians send forth their lawyers to invoke the doctrine that “a municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals.” Quoting Braswell v. Braswell, 410 S.E.2d 897, 901 (N.C. 1991). [Emphasis added].
Braswell holds, “The general common law rule, known as the public duty doctrine, is that a municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals.”
The courts hold that people must protect themselves.
People should buy a gun or initiate a neighborhood watch like the one in which George Zimmerman participated.
A popular but less effective option is praying that criminals will target your neighbors but not you.
The leading case is Riss v. City of New York*, 240 N.E.2d 860 (N.Y. 1968). Linda Riss left her boyfriend, attorney Martin Pugach, and became engaged to another man. Pugach repeatedly made specific threats of death or serious injury; Linda repeatedly asked the police for help, but they did nothing.
On the day after her engagement party, a thug hired by Pugach threw acid in her face, blinding one eye, damaging the other, and leaving permanent scars. When the appellate court held Linda could not sue the police, a dissenting judge emphasized that Linda Riss had depended on the police rather than getting a gun, which was (and is) illegal for victims under New York law.
Regardless, the majority found no liability; the duty to protect persons from violence was owed to the whole public not to any individual, and the city and the police had never promised Linda or any individual protection.
The Riss doctrine is universal, being enunciated by both formal statute and judicial decision in all 50 states. Nor is it simply a cynical ploy for government to avoid just liability. The proposition that individuals must be responsible for their own immediate safety, with police providing only an auxiliary general deterrent, is inherent in a high-crime society.
Consider the matter just in terms of the number of New York City women who each year seek police help, reporting threats by ex-husbands, ex-boyfriends, etc. To bodyguard just those women would exhaust the resources of the nation’s largest police department, leaving no officers available for street patrol, traffic control, crime detection, apprehension of perpetrators, responding to emergency calls, etc., etc.
Given what New York courts have called “the crushing nature of the burden,” the police cannot be made responsible for protecting the individual citizen. Providing such protection is up to the individual who is threatened; it is not the function of the police.
Criminology Prof. Edward Leddy, formerly a New York officer, cites personal experience:

The ability of the state to protect us from personal violence is limited by resources and personnel shortages, [in addition to which] the state is usually unable to know that we need protection until it is too late. By the time that the police can be notified and then arrive at the scene, the violent criminal has ample opportunity to do serious harm. I once waited 20 minutes for the New York City Police to respond to an “officer needs assistance” call – which has their highest priority. On the other hand, a gun provides immediate protection. Even where the police are prompt and efficient, the gun is speedier. [Emphasis added.]

Don B. Kates is an attorney and former professor of constitutional law. He was active in the civil-rights movement in the 1960s and has generally liberal views on social topics. On the subject of violent criminals, however, he has no illusions and favors strict punishment. Mr. Kates is also a staunch defender of the Second Amendment. He is associated with the Independent Institute and can be contacted there.

Editor’s Note:

When seconds count, the police are just minutes away.
Clint Smith, firearms instructor

Reginald Denny was pulled from his truck at the start of the 1992 Los Angeles riot. He was punched, kicked, and hit on the head with a piece of concrete. He remains permanently brain damaged. This brings up four points:

(1) If Denny had a gun and shot one of the attackers, he might have escaped in his truck. But would he then have been arrested for shooting an “unarmed” person? Would he have been charged with a “civil-rights violation” by the feds?
(2) The attack was seen live on TV, yet police were unable or unwilling to come to his aid. What does this say about the ability of police to help us in a timely fashion?
(3) There is no essential difference between being hit on the head with concrete, like Denny, and having one’s head hit against concrete, like Zimmerman. Both can cause severe brain damage. Both justify a defense using lethal force if necessary.
(4) Getting hit on the head isn’t like the movies. You don’t put an ice bag on your head and go about your business. Sometimes you suffer permanent, disabling brain damage, like Reginald Denny and Bryan Stow. Sometimes you die.
Life isn’t like school. There are no scheduled exams. There are only snap quizzes. Sometimes we must make decisions under great stress. Then months later, we are second-guessed by lawyers, judges, and self-anointed pundits. Why did we do this? Why didn’t we do that? Hindsight is always so clear – and so safe. Sometimes we are blamed for defending ourselves from violent attack. Sometimes it seems that they would have preferred us to end up like Reginald Denny and Bryan Stow. It would have been less trouble for them.

Contact: dstol@prodigy.net. You are welcome to publish or post these articles, provided that you cite the author and website.
www.stolinsky.com

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