To Serve and Protect – Itself

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On
November 18, 2001, a woman was shot to death in her suburban Detroit
home by her distraught husband. He then turned the gun on himself
and died instantly.

Unfortunately,
this scenario is played out all too often across the nation. If
these were the only facts, you might shrug with empathy and ask
yourself why this merits your consideration. This case was different.

In
this case, the police were present — not following the murder/suicide
— but before and during it.

Following
threats by her husband to her life and the lives of her children,
the woman went directly to the local police. She informed them that
she was in fear for her life and the lives of her children if she
tried to move out of the marital home. She informed the police that
her husband had a gun, had threatened her and her children that
day, and that she wanted to move out of the home. The police computer
confirmed a personal protection order had been issued by the court
against the husband.

The
police agreed to accompany the woman to her home and remain there
while she removed her personal belongings and her children. Two
officers accompanied her to her home and remained inside to the
end — the end of her life and her husband's.

Despite
encountering the husband, and having been apprised of all the facts
which led them to accompany the woman to her home, the police never
questioned the husband, segregated him from his wife or even bothered
to search him for a gun. They hung around and watched as the husband
followed his wife back and forth from the home to her car with her
personal belongings.

As
the police spoke with others in the house, the husband followed
his wife into her bedroom, closed the door and shot her. He then
shot himself. This was exactly what the wife had asked the police
to protect her from, and what they had agreed to do.

If
these police officers had been private security officers instead,
they and their employer would be held accountable in a court of
law under breach of contract or negligence theories. Alas, they
are government employees. The result is that they are not accountable
for their malfeasance or her death. This is what separates the private
sector from government.

Another
government branch — the courts — has decided that police are not
legally responsible for such gross failures. In Michigan, the state's
highest court has decided that individual police officers may not
be sued unless they are the only cause of the injury or death. This
special treatment is not available to those in the private sector.
In every case involving private individuals or companies, negligence
is assessed on the basis of each party's percentage of fault. Yet
another branch of government – the Michigan legislature – passed
a statute which grants absolute immunity to any municipality, thereby
barring any claim against the officers' employer. No such privilege
is available to private sector employers.

Faced
with these obstructions, the deceased woman's estate pursued a claim
against the officers' employer in federal court alleging that she
was deprived of her life without due process of law. On June 9,
2004 a federal judge dismissed the estate's case. The basis for
the dismissal was that, "a State's failure to protect an
individual against private violence simply does not constitute a
violation of the Due Process Clause." Coming from the
U.S. Supreme Court, this is the law in every state. This outrage
is compounded by the government's simultaneous efforts to prevent
citizens from taking any steps to protect themselves, and punishing
them when they do.

How
do you explain this state of affairs to the family of the deceased?
It was not easy. I was the attorney left with the task.

Writers
such as Steven Greenhut and Paul Craig Roberts have sounded the
alarm on this growing trend of law enforcement's lack of accountability,
but the truth is that most citizens actually believe that the police
are under some legal duty to come to your aid.

In
oral arguments before the federal court, I closed by noting that
if this is the state of the law in this country the courts should
require that all police vehicles be posted with a warning label
which reads: Caution: We are not required to protect you. Then,
I explained, we will at least know the truth, and be able to take
steps to protect ourselves.

The
next time you read the phrase To Serve and Protect on a police vehicle,
remember that this is government's motto about itself, not you.

June
24, 2004

John
M. Peters [send him mail]
is a practicing attorney in Michigan.

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