This is an independent work by attorney John Brophy, reproduced in its
entirety.

John D. Brophy
P.O. Box 245036
Attorney at Law
Sacramento, CA 95824-5036
State Bar No. 047520

PUBLIC SAFETY

Fact or Fiction?

“Do you believe that law enforcement officers have a duty to protect you
from harm?” Ask yourself that question, and, your answer is . . . . ?

That is a question I have frequently asked. The overwhelming majority of
answers have been affirmative; ranging from “Yes.” to “That’s what they are
paid to do!” The next logical question is “How can we be certain we know the
correct answer?”.

The correct answer is found in appellate court decisions. The following
summaries of a few appellate court decisions will provide some insight into
this area of the law.

The administrator of the estate of Ruth Bunnell who had been killed by her
estranged husband brought a wrongful death action against the city whose
police department refused to respond to her call for protection some 45
minutes before her death. Mrs. Bunnell had called the police to report that
Mack Bunnell had called saying he was on his way to her home to kill her.
She was told to call back when Mack Bunnell arrived. The police had
responded 20 times to her calls in the past year, and on one occasion,
arrested her estranged husband for assaulting her. The Court of Appeal held
that the police department and its employees enjoyed absolute immunity for
failure to provide sufficient police protection. The allegations that the
police had responded 20 times to her calls did not indicate that the police
department had assumed any special relationship or duty toward her such as
would remove its immunity.

Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 120 Cal.Rptr. 5

- – - – -

A husband and wife who were assaulted in a laundromat while the assailant
was under surveillance by officers, brought legal action against the city
and the officers for intentional and negligent infliction of emotional
distress and for negligent investigation, failure to protect and failure to
warn. The Supreme Court held that: (1) the mere fact that the officers had
previously recognized the assailant from a distance as a potential assailant
because of his resemblance to a person suspected of perpetrating a prior
assault did not establish a “special relationship” between officers and
assailant under which a duty would be imposed on officers to control
assailant’s conduct; (2) factors consisting of officer’s prior recognition
of assailant as likely perpetrator of previous assault and officer’s
surveillance of assailant in laundromat in which victim was present did not
give rise to special relationship between officers and victim so as to
impose duty on officers to protect victim from assailant; and (3) victim
could not maintain cause of action for intentional or reckless infliction of
emotional distress, in view of fact that it was not alleged that officers
failed to act for the purpose of causing emotional injury, and that in the
absence of such an intent to injure, officer’s inaction was not extreme or
outrageous conduct.

Davidson v. City of Westminister (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252

- – - – -

The widow and sons of a motorist who drove into the void where a collapsed
bridge had been, brought action against the State, county, and county deputy
sheriff. The California Department of Transportation (Cal Trans) was aware
that a violent storm with heavy rains had caused a bridge on State route 118
to collapse. A county deputy sheriff had observed the beginning of the
collapse, reported it and requested assistance from Cal Trans. A jury award
of $1,300,000 was reversed in part by the Court of Appeal which held: (1)
the county deputy sheriff had no duty to warn drivers that the state highway
bridge had collapsed during the storm, and his efforts to warn drivers did
not in any way increase the risk of harm to users of the highway, and
therefore the county was not liable to motorist’s wife and children; and (2)
the judgment was upheld against the state because the Cal Trans was notified
at 1:52 a.m. and at 2:35 a.m., but no Cal Trans personnel nor CHP officer
appeared at the scene until 5:45 a.m., and that such delay was unreasonable.

Westbrooks v. State (1985) 173 Cal.App.3d 1203, 219 Cal.Rtr. 674

- – - – -

In an action against police officers and city for personal injuries
sustained by Kathryne Ne Casek when she was knocked down on a sidewalk by
two suspects who had been arrested by the officers, the Court of Appeal held
the amount of force or method used by a police officer in attempting to keep
an arrested person or persons in custody is a discretionary act for purpose
of application of doctrine of immunity of government officials from civil
liability for their discretionary acts, and therefore Ms. Ne Casek who was
injured by two escaped suspects who had been handcuffed together could not
maintain an action against the arresting officers based on the officer’s
alleged negligence in using insufficient force to keep the prisoners in
custody.

Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 43 Cal.Rptr. 294

- – - – -

An action was brought by several landowners against the City of Los Angeles
and the State pleading eleven separate causes of action for damages arising
out of the ?Watts’ Riots’ of 1965. The Court of Appeal held that none of the
allegations presented was sufficient to show any duty owed by any of the
officials named as defendants to act to prevent or avoid the harm suffered
by the plaintiffs.

Susman v. City of Los Angeles, et al (1969) 269 Cal.App.2d 803, 75 Cal.Rptr.
240

- – - – -

A silent burglar alarm installed on the premises of the store operated by
the plaintiff was, during the course of a robbery by two armed men,
activated at 3:32 p.m. and the alert message was relayed to the police
department. The dispatch message to the units in the field was at 3:43 p.m.,
and a police unit arrived at the scene of the robbery at 3:44 p.m. The delay
in the transmission of the dispatch enabled the robbers to complete the
robbery and escape with jewelry and merchandise in the amount of $49,000.
The Court of Appeal held that Govt. Code section 846 provides for immunity
if no police protection is provided; or, if police protection is provided,
but that protection is not sufficient.. “The statutory scheme makes it clear
that failure to provide adequate police protection will not result in
governmental liability, nor will a public entity be liable for failure to
arrest a person who is violating the law. The statutory scheme shows
legislative intent to immunize the police function from tort liability from
the inception of its exercise to the point of arrest, regardless of whether
the action be labeled ?discretionary’ or ?ministerial.’”

Antique Arts Corp. v. City of Torrence (1974) 39 Cal.App.3d 588, 114
Cal.Rptr. 332

- – - – -

I believe that an accurate statement of the law regarding whether or not law
enforcement officers have a duty to protect an individual from harm is: Law
enforcement officers do not have a duty to protect an individual from harm,
unless a special relationship exists between the law enforcement agency and
the individual. Most of the cases in which a special relationship was found
to exist involved a person suffering an injury while in custody; or, shortly
after being released from custody by officers who knew, or should have
known, that the person was unable to exercise ordinary care. If a law
enforcement officer, or other public employee, does go to the aid of a
person in jeopardy or distress, they are performing an act outside the scope
of their official duties, and they assume the duty of using reasonable care.

The six cases listed above are only a few of the California cases dealing
with this subject. Those cases were chosen as examples because of the
differences in the fact patterns on which each case was based. Anyone can go
to a law library and ask a librarian to assist them in locating the
published opinions of these cases. Each opinion will include citations to
the cases and statutes relied upon by the appellate court justices in their
reasoning process which was the basis for reaching their opinion.

If you are not already familiar with the way law book publishers print the
appellate court opinions, ask the librarian to show you the case summary,
and the “head notes”, all of which are added by the publisher, and where the
court’s opinion that was written by the court begins. Only the language in
the court’s opinion is “official”, the case summary and the “head notes” are
not. Not all opinions of the courts are unanimous decisions, and some
opinions include dissenting opinions.

California is not the only jurisdiction following that general rule of law.
Here are some citations to appellate court decisions from other
jurisdictions, but the list is by no means complete. Your law librarian can
assist you in locating these cases, and the cases and statutes cited in
them.

Its hard to believe – there are 28 court cases, all of which showing
” the Police have no obligation to protect any individual person from harm “

DeShaney v. Winnebago County Social Services (1989) 489 US 189
Bower v. DeVito (1982) 686 F.2d 616
Calgorides v. Mobile (1985) 475 So.2d 560
Warren v. District of Columbia (1983) 444 A.2d 1
Morgan v. District of Columbia (1983) 469 A.2d 1306
Sapp v. Tallahassee (1977) 348 So.2d 363, cert.denied 354 So.2d 985
Keane v. Chicago (1968) 98 Ill.App.2d 460, 240 N.E.2d 321
Jamison v. Chicago (1977) 48 Ill.3d 567
Simpson’s Food Fair v. Evansville 272 N.E. 2d 871
Silver v. Minneapolis (1969)) 170 N.W.2d 206
Wuetrich v. Delia (1978) 155 N.J.Super. 324, 382 A.2d 929
Chapman v. Philadelphia (1981) 290 Pa.Super. 324, 382 A.2d 753
Morris v. Musser, (1984) 84 Pa.Cmwth. 170, 478 A.2d 937
Weiner v. Metropolitan Authority, and Shernov v. New York Transit Authority
(1982)
55 N.Y.2d 175, 948 N.Y.S. 141

Who does have a duty to protect a person from harm? Parents have a duty to
protect their children, but other than that, the short answer is no one has
that duty. The ultimate responsibility for your protection is self
protection, should you care to undertake that responsibility. Is there any
legal authority to justify exercising the right of self protection in
California? Please consider the following:

Article I, Section 1 of the Constitution of the State of California clearly
states that you have that right:

All people are by nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing safety, happiness, and
privacy.

(The present language was adopted November 5, 1974, and changed the original
version, which was adopted in 1849, by substituting the word “people” in
place of “men”, and by adding the word “privacy” at the end of the
sentence.)

California Civil Code, section 50 provides:
Any necessary force may be used to protect from wrongful injury the person
or property of oneself, or of a wife, husband, child, parent, or other
relative, or member of one’s family, or of a ward, servant, master, or
guest.

(Enacted in 1872. Amended by Code Am. 1873-74, extending the right to use
force to protect a relative without reference to degree, a member of one’s
family, and a guest.)

California Penal Code, section 692 provides:
Lawful resistance to the commission of a public offense may be made:
1. By the party about to be injured;
2. By other parties.
(Enacted in 1872.)

California Penal Code, section 693 provides:
Resistance sufficient to prevent the offense may be made by the party about
to be injured:
1. To prevent an offense against his person, or his family, or some member
thereof.
2. To prevent an illegal attempt by force to take or injure property in his
lawful possession.
(Enacted in 1872.)

California Penal Code, section 694 provides:
Any other person, in aid or defense of the person about to be injured, may
make resistance sufficient to prevent that offense.
(Enacted in 1872.)

Civil Code section 50, and Penal Code sections 692, 693 and 694 as quoted
above are still in effect. I find those code sections, enacted in the early
1870′s, to be straight forward and easy to understand. They recognize the
realities of life. Not all people are law abiding; and, law abiding people
have the right to protect themselves and their property, and to come to the
aid of others in need of assistance and protection from individuals
committing the public offenses.

Today, unfortunately, that is not the current state of the law. Thousands
of laws have been enacted since 1872 that have effectively denied any truly
effective means of exercising the “inalienable rights” recognized in Article
I, Section 1 of the Constitution of the State of California, outside of the
persons home, with only a few exceptions. The identified “need” for those
laws has been “crime control”, but we have a much larger percentage of our
population in jails and prisons now than ever before. A vastly larger
percentage than in 1872, which is evidence that as government makes it more
difficult for the law abiding individuals to protect themselves, they become
victims of crime.

There are some people who are unwilling to accept the responsibility for
protecting themselves from harm or injury, and advocate the philosophy of
pacifism. However. pacifism has never been shown to deter crime. Exercise of
your inalienable rights in Article I, Section 1, is not mandatory. You may
refuse to defend yourself and exercise your right to be a victim.

I believe the correct answer to my original question is: Law enforcement
officers do not have a duty to protect an individual from harm. That raises
more questions that should be considered. Why is the public so misinformed
about such a fundamental issue involving public safety? What can be done to
educate the public to the true facts on this issue to enable them to make
informed decisions about their personal protection? The writer invites ideas
from the readers regarding this article.

Should you have any questions or comments, please send them to the writer’s
address.

John D. Brophy