The Police Are Not Here to Help

US judicial opinions have repeatedly upheld the notion that police are under no obligation to place themselves at risk to protect the public. What is their actual function?

As a clearer picture emerges of the tragic events of May 24, Uvalde police are being heavily criticized for their hesitance to confront the gunman inside the school, an hour of forced inaction that seems incomprehensible now as terrified young students repeatedly called 911 begging for help and desperate parents were prevented from going in to retrieve their children. These students, like most Americans, believed that the police exist to protect and serve civilians, a theory which has never been true from the perspectives of reality or jurisprudence (nor a close reading of the history of US law enforcement), and is now becoming increasingly tested in the popular zeitgeist. Factually, the police have never existed to protect us from harm, a conspiratorial-sounding idea but one which has been confirmed by decades of court decisions—the police legally do not have an obligation to act in a victim’s interest if they did not endanger them in the first place.

This American Prospect article outlines the legal history of police duties related to the public, centering on the 2011 case of Joseph Lozito:

Let us go back eleven years to February 2011, in the very same place, New York City. As he told in a Cracked.com video some four years ago, Joseph Lozito was on his morning commute through New York City when he hopped on the subway, blissfully unaware of a brutal stabbing spree—perpetuated by Maksim Gelman—that had been going on for over 24 hours at that point.

Lozito would be the final victim in the stint. After Gelman boarded the train and confronted the police officers that were in a secure area, he turned to Lozito and said, “You’re going to die.”

What transpired afterwards was what Lozito described as what “every man thinks about at least twice a day.” Lozito tackled Gelman and they struggled physically, with Gelman stabbing Lozito in the head until they both hit the ground and Lozito disarmed Gelman. Only then did the NYPD officers intervene to apprehend Gelman.

In this case, one of the cops allegedly admitted that he did not intervene in the altercation because he thought Gelman had a gun, instead hiding from the attacker. This prompted Lozito to sue the city of New York. He lost the case in 2013, but not because the Manhattan Supreme Court judge didn’t believe him, or because he lacked evidence, or because the cops had a good reason for not intervening. Lozito lost because of a precedent established by the U.S. Supreme Court: the cops do not have a duty to protect you, or anyone.

In 2005, Jessica Gonzales sued Castle Rock, Colorado police for failing to arrest her husband, who had violated a protective order, resulting in the murder of her three children. Her case went to the U.S. Supreme Court in The Town of Castle Rock v. Gonzales, where she lost because even though the order required arresting her husband upon violation, then-Justice Antonin Scalia successfully argued that “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”

This case builds upon Supreme Court precedent in Deshaney v. Winnebago County Department of Social Services (1989). In that case, a young boy was repeatedly abused at the hands of his father, something that county Social Services was aware of, but made no effort to remove the child. His mother sued once the four-year old entered a vegetative state, and the Court ruled that that the state did not have a special obligation to protect a citizen against harms it did not create.

More directly relevant is the case of the 2018 lawsuit brought by surviving students of the Marjory Stoneman Douglas High School shooting:

A federal judge in South Florida tossed out a lawsuit filed by more than a dozen students from Marjory Stoneman Douglas High School in Parkland, Fla., who said they were traumatized by a mass shooting there in February and that county officials should have protected them.

U.S. District Judge Beth Bloom said neither the school nor sheriff’s deputies had a legal obligation to protect students from the alleged shooter, Nikolas Cruz, who is accused of killing 17 people at the school Feb. 14. Her reasoning? The students were not in state custody, the Sun Sentinel reported.

Bloom, who was nominated to the bench by President Barack Obama in 2014, wrote in her opinion:

“The claim arises from the actions of Cruz, a third party, and not a state actor. Thus, the critical question the Court analyzes is whether defendants had a constitutional duty to protect plaintiffs from the actions of Cruz.

“As previously stated, for such a duty to exist on the part of defendants, plaintiffs would have to be considered to be in custody.”

It’s not the first time such reasoning has been used. In 2005, the U.S. Supreme Court ruled that police did not have a constitutional duty to protect a person from harm. That ruling overturned a federal appeals court in Colorado that allowed a lawsuit to stand against a town when its police refused to protect a woman from her husband. He had violated a restraining order and kidnapped their children, whom he killed, the New York Times reported.

If only the 19 slain students were prisoners of the state rather than subjects of the public school system, then the police might have acted on their behalf.

As of now, the cowardly police of Uvalde have only faced some harsh public criticism for the dereliction of moral duty (if not legal duty) to confront the killer, though some may eventually be disciplined or forced to resign. Police inaction Tuesday also broke with their proactive training, which was widely adopted after the 1999 Columbine massacre showed that the existing practice of forming a perimeter and waiting for a tactical team was wasting precious time and lives:

As new questions emerged on Friday about the police response to the shooting at Robb Elementary School in Uvalde, Texas, experts described those principles as the central tenets for handling such circumstances — a set of protocols that have evolved significantly over the last two decades but are widely accepted by law enforcement agencies in the United States.

Officers are taught to enter quickly in small formations — or even enter with only one or two officers — to disable any gunman. Texas protocols, included in materials that Uvalde officers were trained on as recently as two months ago, advise that an “officer’s first priority is to move in and confront the attacker. This may include bypassing the injured and not responding to cries for help from children.”…

Still, in a school shooting, law enforcement should err on the side of neutralizing the threat, said Ronald Tunkel, a retired agent for the Bureau of Alcohol, Tobacco and Firearms who has analyzed school shootings. “If you know children are being murdered, why do you wait?” he said. “Get in there.”

The changing police narrative in the wake of the shooting is suspicious (from police fearing for their lives to believing that the suspect had stopped firing and was therefore no longer a danger), and implies that the police knew they had acted in a profoundly irresponsible manner and were struggling to pinpoint an acceptable version of events. The cavalier nature of their varied explanations shows that they have little respect for the civilians they are not obligated to protect, a lesson they inevitably learned after the wildly successful but relatively minor “defund” programs in several US cities prompted a disproportionate backlash and calls to “refund” police departments whose budgets were never meaningfully slashed. If even minor criticism and insignificant funding cuts result in a rallying call among mainstream politicians, they are surely aware that their ability to act with impunity and reactively call for more funding in light of any visible failures is secure in Biden’s America.

The idea that police only have a duty to protect anyone if they first endanger or incarcerate them leads to uncomfortable questions even from a morally neutral realpolitik perspective. If police are liable to act when the state created the danger, then they are ironically only meant to put themselves in harm’s way when other police or state actors are in the process of committing an act of brutality on a civilian. But instead of holding one another accountable, police hide behind the blue code of silence and retaliate against whistleblowers, indicating that even this responsibility is to difficult for them to handle. What good are the police if they are only legally obligated to protect us from their fellow officers, or more generally, from conditions they directly created?

There is also the complicating issue of failure to investigate imminent attacks leading directly to a dangerous situation. Families of the Parkland shooting victims were recently awarded millions of dollars in damages due to the FBI’s failure to investigate a tip about the shooter’s intentions:

About five weeks before the Feb. 14, 2018, shooting, an FBI tip line received a call saying a former Stoneman Douglas student, Nikolas Cruz, had bought guns and planned to “slip into a school and start shooting the place up.”

“I know he’s going to explode,” the caller told the FBI.

But that information was never forwarded to the FBI’s South Florida office and Cruz was never contacted. He had been expelled from the school a year earlier and had a long history of emotional and behavioral problems.

Does this not constitute state responsibility for the shooting that soon occurred? At what point does a government’s responsibility to protect its citizens meaningfully end, given that the US is a surveillance state that is happy to infiltrate and spy on leftist protests while allowing actually violent, mentally unstable individuals to go unnoticed and eventually commit mass murder? In the same way, the government allowing (encouraging) the proliferation of guns in the US increases the danger exponentially—we are all quite directly victims of the enforced system of privation, desperation, alienation and lack of healthcare that drives some Americans to so horrifyingly victimize others. There is no massacre or hostage situation or domestic violence that the government does not have at least some small hand in creating. If the police are to exist in their current well-paid, highly-revered state, their obligation toward the rest of us should be all-encompassing.

Instead, the police behave as street gang bullies, an anachronistic and poisonous vestige of a painful racist past who at best do nothing to protect civilians and at worst stir up crime, trump up charges to inflate arrest numbers, and commit murder. Like all bullies, the police are only brashly macho and gung-ho when they are secure in their possession of the upper hand, when they are arresting those who are incapable of fighting back or in situations of heightened adrenaline wherein a lack of judgment often leads to brutality. They are brave when they are oppressing; when they are in the rare danger of oppression themselves, they abandon their duty at the drop of a hat then lie and dissemble about their actions.

If the police are not obligated to protect and serve, then all of the many valid criticisms become much more pointed and significant. Previously, the police and their defenders could dismiss any of these criticisms handily by imagining a scenario in which cops are the only entity that could save one’s life in a particular situation. Criticize the police for being overwhelmingly racist or aggressive, and the answer has always been “Well when you’re being held up at gunpoint, you’re going to need them.” This “what if” scenario is based on the same scare tactic used in the defense of gun ownership—what if you are in a situation in which a gun is the only way to save yourself? As noted in the previous essay “There Are No Gun Rights,” firearms are only used in a valid self-defense setting a vanishingly small number of times, and their proliferation ensures that many more instances of murder, manslaughter, accidental death, and suicide will occur. Much the same could be said for the police, who might occasionally perform a socially beneficial role but cause many of the problems they exist to solve and could be replaced at a much cheaper cost by social workers and mental health teams in most situations. The latest massacre should serve as a succinct and convincing rebuttal to arguments reliant on that invisible threat of an attack only a cop could thwart: they often to do not thwart it, and are under no obligation to do so.

It is long past time to dismantle the police, whose existence, much like that of the similarly-beloved US military, creates a self-reinforcing feedback loop of oppression and poverty, crimes of survival, frustration, and desperation, and retaliatory oppression in turn. Their continued well-funded existence and knee-jerk worship by virtually sectors of the US polity is a slap in the face to their many victims and especially Black Americans, who are still unfairly profiled and brutalized and have tended for many decades to view police as a threat rather than a force for protection. After the many mass shootings of the last few years, other Americans are being treated to a view of that world and might be justifiably waking up to the fact that while their race does afford them some privilege of positive police bias, that friendship only goes so far and even they will be abandoned whenever convenient. Pew research recently found a growing, if still minor, dissatisfaction with law enforcement in the US that reflects this realization.

In response to this growing sentiment, President Joe Biden issued a characteristically token executive order to reform the police:

The executive order signed Wednesday establishes a national database of officers who have been fired for misconduct and requires federal agencies to update their policies on use of force. 

The database of disciplinary records will apply to federal officers and state and local jurisdictions that partner with the federal government on joint task forces. It will cover more than 100,000 officers in total, senior administration officials said. 

The order will ban federal officers from using chokeholds unless deadly force is authorized, and it will restrict the transfer and purchase of military equipment by local police departments. 

The measure will also limit the circumstances under which federal law enforcement can use no-knock warrants, and it will stipulate that certain federal grants for state and local police departments will be contingent on having proper accreditations in place. 

It is telling that such a database did not exist until now, but characteristic of a nation in which one of its largest religions behaves similarly by shuffling child abusing priests from church to church and covering up their crimes. It is the same old story: the elites have become complacent in their ability to abuse us and need to be reminded that their power is derived from the very people they do not bother to protect.

Man-made horrors are only going to increase in number as climate change, infrastructure collapse, biosphere degradation, increasingly common and more severe natural disasters, food and water scarcity, and ever-present disease drive more of us to desperation and destruction. How many more tragedies must we endure before a new system is established?