By Karen J. Kruger, Senior Assistant County Attorney and Counsel to the Sheriff, Harford County, Maryland
s a group, law enforcement officers are a noble and committed collection of public servants—and in some instances take their notions of “duty” beyond that required by law. Officers routinely express their perception that they have an obligation to protect individuals from other persons, to prevent accidents, and to deter criminal behavior, but this perception overstates the legal duty that is embodied in the “public-duty doctrine.”
The public-duty doctrine holds that the government and its officials owe a legal duty to the public at large but not to any individual citizen.1 As long ago as 1855, a court in Maryland held that a sheriff who refused to arrest suspects who had allegedly kidnapped the plaintiff could not be held liable for nonfeasance because of the “undisputed principle of the common law, that for a breach of public duty . . . the sheriff . . . is amenable to the public, and punishable by indictment only.”2 The court thus ruled that there could be no private cause of action based on a failure to provide police protection to an individual.3
Some 150 years later, a few recent court cases serve as reminders of the limits of a police officer’s duty. In Johnson, et al. v. City of Seattle, et al.4 a group of citizens sued the city and its police department after they were injured at a large public Mardi Gras celebration. The plaintiffs claimed that the government violated their due-process rights by failing to protect them from harm that was inflicted by third parties when the assistant police chief made changes to the emergency response plans based on the hostility of the gathered group. Specifically, the assistant chief ordered officers to remain on the perimeter of Pioneer Square, the park in which the hostile and violent crowd had gathered, because he concluded that a greater police presence would have incited greater panic and made the situation worse. The plaintiffs claimed that this “substandard” police action resulted in a deprivation of their Fourteenth Amendment liberty interest in personal security.
The Ninth Circuit Court of Appeals held that “the City of Seattle had no constitutional duty to protect the Pioneer Square Plaintiffs against violence from members of the riotous crowd . . . .”5 The court relied on DeShaney v. Winnebago County Department of Social Services,6 the case in which the U.S. Supreme Court definitively stated that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”7
This rule announced in DeShaney does have two exceptions that the Johnson court considered along with the general rule. The two exceptions under which a citizen may sue a public actor, such as a police officer, are known as the “danger creation exception” and the “special-relationship exception.”8
The Danger Creation Exception
To prevail under the danger creation exception, a complainant must show that the government’s action or inaction “affirmatively placed the plaintiff in a position of danger, that is, where state action creates or exposes an individual to a danger which he or she would not have otherwise faced.”9 In Wood v. Ostrander,10 the Ninth Circuit found that a police officer may have been liable for creating a danger for a woman passenger whom he left on the roadside, in a high-crime area, after having arrested her companion, the driver, for drunk driving and impounding his vehicle. The outside temperature was only 50 degrees, the woman was not wearing a coat, and she accepted a ride from a stranger who took her to a secluded place and raped her. The Wood court found that since the officer affirmatively placed the woman in a dangerous situation and abandoned her, he may have “deprived her of a liberty interest protected by the Constitution.”11
Applying this principle, the Johnson court contrasted the “more passive operational plan that the police . . . implemented” as action that did not affirmatively “enhance the dangers the Pioneer Square Plaintiffs exposed themselves to by participating in the Mardi Gras celebration,”12 even if the plan was not effective in combating the violence of the crowd. Since the police force did not affirmatively create the danger to which these plaintiffs were exposed, they had no constitutional duty to protect them, and thus no liability.
A federal district court in Massachusetts considered the issue of a “state-created danger” in Lockhart-Bembry v. Town of Wayland Police, et al.13 In this case, Wayland police sergeant Daniel Sauro had ordered Ms. Lockhart-Bembry to move her disabled car off the road, as it was obstructing traffic. The officer refused to help her because, under departmental policy, police officers “do not push motor vehicles by hand.”14 When Ms. Lockhart-Bembry pushed her car manually, she lost control of it, it rolled down a steep embankment, and she was injured.
The court found that the officer may be liable to the plaintiff for negligence because a jury could find that his conduct was not reasonable under the circumstances. Ms. Lockhart-Bembry also asserted a claim under 42 U.S.C. 1983 claiming that Sergeant Sauro had violated her constitutional due-process rights by creating a danger that caused harm to her. The court noted that liability to a state-created harm arises only where a “government employee, in the rare and exceptional case, affirmatively acts to increase the threat of harm of the claimant or affirmatively prevents the individual from receiving assistance.”15 The court went on to note that “[w]here the government creates or seriously increases the harm, no violation of due process occurs unless the behavior ‘shocks the conscience’ or is outrageous.”16 And, in this case, that determination was one to be made by a jury, thus precluding summary judgment in favor of Sergeant Sauro.
The Sixth Circuit Court of Appeals found in May v. Franklin County17 that the county and its police officers were not liable for a woman’s murder by her boyfriend, even though they decided to leave the residence to which they were summoned when they did not hear any noise inside. Because their decision neither created nor increased there was no state-created danger that would give rise to liability.
Similarly, in Jones v. Reynolds18 police officers were not liable for failing to prevent the death of a bystander at a street drag race because they had not done anything to place her in more danger than she had already voluntarily assumed before the officers arrived on the scene. Because the officers took no affirmative action to enhance the risk to which she was exposed, again there was no state-created danger.
The Special-Relationship Exception
The second exception to the public-duty doctrine is known as the “special-relationship exception,” a principle of law that allows for suits based on negligent police protection where the plaintiff can demonstrate that there existed a special relationship between the injured person and the police. Generally, such a relationship will be found “where the government singles out a particular party from the general public and affords that person special treatment.”19 Unless there is a special relationship, there is no specific duty to specific persons.20
In Lee v. Pine Bluff School District21 the Court of Appeals considered whether a school district had a constitutional duty to provide medical services to a student who became ill while on a school trip. The student subsequently died as a result of the illness. The court found that the school officials could not be held liable under 42 U.S.C. 1983 because the student “was not within the limited class of persons to whom the State owes a constitutional duty to provide some degree of medical care.”22 The court noted that “the Fourteenth Amendment was not designed to provide relief in all cases where the State’s functionaries fail to take action that might have averted a serious harm.”23 The opinion carefully distinguishes this situation from the “certain limited circumstances” in which the state has a special duty to an individual because it has restrained the individual’s liberty “through incarceration, institutionalization, or other similar restraint.”24 In such situations, the state must “assume some responsibility for [the individual’s] safety and general well-being” because the individual is unable to care for himself due to the state’s restraint.25
The special-relationship principle arises in state law cases as well. A Pennsylvania court ruled that state troopers had no special relationship with and thus owed no duty to automobile accident victims who were injured at an icy roadway on an interstate highway, even though they allegedly knew of the hazard and failed to control or direct traffic around the icy spot and failed to reduce the risk and danger to traveling motorists.26 The court held that “[i]n general, the police have a common law duty to protect the public when carrying out their duties, and the failure to act generally is not considered a harm to an individual.”27
In Schoenfield v. Navarre28 Wendy Schoenfield sued the City of Toledo’s police chief and eight police officers, alleging that they were negligent in failing to prevent her husband’s suicide. The owner of a firearms store had called the police after Eric Schoenfield attempted to purchase a gun because he was acting strangely during his interactions with the salesperson. The police questioned Schoenfield, who was calm and denied that he had any suicidal intentions. Nevertheless, the police detained Schoenfield when his wife expressed her concerns that her husband might commit suicide, but he was released before she arrived to pick him up. Eric Schoenfield checked into a motel, purchased a gun from K-Mart, and shot himself.29
Wendy Schoenfield sued the police, claiming that because they failed to keep her husband in custody, they had breached a duty to protect him and thus had caused his death. The state court determined that “any common law duty imposed upon employees of a political subdivision” must be evaluated under the state statute governing sovereign immunity.30 The court ruled that the police were immune from suit because there was no evidence that they “failed to act appropriately under the circumstances . . . or that they intentionally violated any known duty” to Mr. Schoenfield.31
The issue of whether police have created a special relationship that leads to a duty to protect has often arisen in cases involving domestic violence. In Kromer v. County of Onondaga32 the father of a woman who was murdered by her estranged husband sued the police for failing to protect her. As the executor of her estate, he alleged that defendant county police officers acted recklessly and negligently in failing to protect his daughter after she had reported that, two weeks before the murder, her husband assaulted and raped her. On appeal, the court affirmed the trial order granting defendants’ motion for summary judgment dismissing the complaint. The court ruled that the plaintiff failed to produce evidence showing that there was a special relationship between the daughter and the police that is necessary to impose liability.33
The police officer defendants established that the decedent did not contact them during the two-week period between the alleged assault/rape and the murder, and thus the plaintiff could not produce evidence to show whether any acts of the defendants lulled her “into a false sense of security, induced [her] to either relax [her] own vigilance or forego other viable avenues of protection, and thereby placed [decedent] in a worse position than [she] would have been in had defendants never assumed the underlying duty.”34
Police officers who report to the scene of a domestic dispute do not have an affirmative duty to remove weapons from the home; thus, they could not be held liable when the husband later shot his wife and then killed himself.35 A court found that a deputy sheriff was not liable for failing to arrest a woman’s boyfriend the night before he beat her to death because the decision to arrest was discretionary under state law; thus, he had no duty to arrest the boyfriend to protect the woman.36
In Maryland, a state university was found to have no duty to protect its students against the abusive acts of another student,37 and a 911 dispatcher was similarly not subject to suit because she had no duty to a specific person. In Fried v. Archer,38 a teenage girl, Sarah Fried, who had been drinking with a group of boys was subsequently molested and assaulted by them in the woods behind a house on a night of cold, inclement weather. One of the boys anonymously called 911 to report the girl’s location and request help. The 911 dispatcher gave the wrong address to the police officer, who was unable to find the girl. The girl died overnight from exposure, and her mother sued the county and its employees.
The Maryland court ruled here, and in a companion case involving domestic violence,39 that 911 operators generally owe no tort duty for the negligent performance of their duties to individuals who need 911 services because there is no special relationship between the operators and those persons. The court specifically noted the limitations of the public-duty doctrine,40 which recognizes that public officials cannot foresee the harm that may come to individuals in every given situation.41
The public-duty doctrine is considered when an individual alleges that law enforcement personnel or other government employees are liable for injuries due to a breach of a legal duty. But unless the state actors either created or enhanced a risk or had a special relationship with the individual, these suits are generally unsuccessful because the duty owed by the government to its citizens is to the public generally and not to citizens individually. Law enforcement agencies should provide training to personnel so that they are aware when they may be expected to perform a “special duty” above and beyond the general legal requirements. ■
1John Cameron Mitchell, Government Liability and the Public Duty Doctrine, 32 Villanova Law Review 509 (April 1987).
2South v. State of Maryland for Use of Pottle, 59 U.S. 396 (1855).
3Mitchell, Government Liability, 509.
4474 F.3d 634 (9th Cir. 2006).
5Id. at 639.
6489 U.S. 189 (1989).
7Id. at 197
8474 F.3d at 639, citing L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992).
9Id., quoting 489 U.S. at 197.
10879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990).
11Id. at 596. See also Grubbs, 974 F.2d 119 (jail supervisors who knowingly assigned a nurse to work alone with a violent sexual predator who assaulted, battered, and raped her were held liable for affirmatively creating a danger); Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997) (police officers who abandoned a seriously ill person after having been called to the home and who cancelled the 911 call were held liable for his death by placing him in peril in “deliberate indifference to [his] safety”).
12474 F.3d at 641.
13404 F. Supp.2d 373 (D. Mass. 2005).
14Id. at 375.
15Id. at 378, citing Frances-Colon v. Ramirez, 107 F.3d 62, 64 (1st Cir. 1997).
17437 F.3d 579 (6th Cir. 2006).
18438 F.3d 685 (6th Cir. 2006).
19Mitchell, Government Liability, 515.
20See cases cited by Mitchell, Government Liability, n. 57, describing no duty to protect public from an intoxicated driver, no liability for death in failing to investigate prior complaints of assailant’s violent conduct, and no duty to protect neighbors from violence from each other arising from racial tensions.
21472 F.3d 1026 (8th Cir. 2007).
22Id. at 1031.
23Id. at 1032.
24Id. at 1029.
26Daubenspeck, et al. v. Commonwealth of Pennsylvania, 894 A.2d 867 (Pa. Cmwlth. 2006).
27Id. at 871.
28843 N.E.2d 234 (Ohio App. 2005).
29Id. at 573–74.
30Id. at 575.
31Id. at 578.
32809 N.Y.S.2d 723 (A.D. 4th Dept. 2006).
35Halpin v. Lancaster, 806 N.Y.S.2d 810 (A.D. 4th Dept. 2005).
36Howard v. Bayes, 457 F.3d 568 (6th Cir. 2006).
37Rhaney v. University of Maryland Eastern Shore, 388 Md. 585 (2005).
38370 Md. 447 (2002).
39Muthukumarana v. Montgomery County, 370 Md. 447 (2002).
41388 Md. at 364.
T Visa Update
The Trafficking Victims’ Protection Act of 2003 expanded the role of local and state law enforcement in the T visa application process, which can afford victims of human trafficking basic benefits as well as legal status to remain in the United States and avoid deportation. Local and state law enforcement officers can assist victims with their application for a T visa by providing a statement of support on agency letterhead or by completing the I-914B form as part of the victim’s application to the Department of Homeland Security. The form can be downloaded at http://www.uscis.gov/files/form/i-914.pdf .