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L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 737, September 8, 2013

"Progressives"? I call them regressives.


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When Individuals Must Protect Themselves
by Don B. Kates
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Special to L. Neil Smith's The Libertarian Enterprise

This morning FL Judge Alex Ferrer who frequently comments on legal issues gave a very unusually frank evaluation of the now ended case against GZ. 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 GZ he expects will probably bring a civil case for damages against the prosecuting local authorities. Noting that the defense barely mentioned the FL "stand your ground" law, Judge Ferrer said it had had little relevance because the case against GZ 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 GZ 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 upholds "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—by buying a gun or initiating a neighborhood watch like the one in which GZ participated.

A popular but less effective option is praying that criminals will target your neighbors but not them.

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 NY law. Regardless, the majority found no liability; the duty to protect persons from violence was owed to the whole public not to any individual public, and the city and the police had never promised Linda any individual protection.

The Riss doctrine is universal, being enunciated by both formal statute and judicial decision in many states 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 and 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 N.Y. 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.


SUPPORTING AUTHORITIES FOR THE FOREGOING:

Calogrides v. City of Mobile, 475 So. 2d 560 (S.Ct. Ala. 1985— quoting with approval from Weutrich v. Delia, 155 N.J Super 324, 326, 382 A.2d 929, 930 (1978) "'a public entity such as a municipality is not liable in tort for its failure to protect against the criminal propensity of third persons'"—Morris v. Musser, 478 A.2d 937 (1984), Morgan v. District of Columbia, 468 A.2d 1306 (D.C. Ct. of Ap. 1983), Davidson v. City of Westminster, 32 C.3d 197, 185 Cal. Rptr. 252, 649 P.2d 894 (S. Ct. Cal. 1982), Chapman v. City of Philadelphia, 434 A.2d 753 (Sup. Ct. Penn. 1981), Sapp v. City of Tallahassee, 348 So.2d 363 (Ct. of Ap. Fla. 1977), Simpson's Food Fair v. Evansville, 272 N.E. 2d 871 (Ct. of Ap., Ind.), Silver v. City of Minneapolis, 170 N.W.2d 206 (S.Ct. Minn. 1969),

Riss v City of New York, 22 N.Y. 2d 579, 293 NYS2d 897, 240 N.E. 2d 860 (N.Y. Ct. of Ap. 1968), Keane v City of Chicago, 98 Ill. App.2d 460, 240 N.E.2d 321 (1968). See also Bowers v DeVito, 686 F.2d 61 (7 Cir. 1982) (no federal constitutional requirement that state or local agencies provide sufficient police protection).

Warren v. D.C., 444 A.2d 1 (D.C. Ct. of Ap. 1981).

See also Cal. Gov't. Code 821, 845, 846 and 85 Ill. Rev. Stat. 4-102 construed in Stone v. State, 106 C.A.3d 924, 165 Cal. Rptr. 339 (Cal. D.C.A. 1980) and Jamison v. City of Chicago, 48 Ill. App. 567 (Ill. Ct. of Ap. 1977) respectively; see generally 18 McQUILLIN ON MUNICIPAL CORPORATIONS sec. 53.80 as well as the authorities cited at nn. 16-18, 21 and 22 herein and the cases annotated at 46 ALR 3d 1084.

* Crazy Love (2007 film)
Crazy Love is a 2007 American documentary film directed by Dan Klores and Fisher Stevens. The screenplay by Klores explores the troubled relationship between New York City attorney Burt Pugach and his ten-years-younger girlfriend Linda Riss, who was blinded and permanently scarred when thugs hired by Pugach threw lye in her face.


Reprinted from Cal Gun Laws website. Don B. Kates is a Research Fellow at the Independent Institute. He received his J.D. from Yale University Law School and has taught constitutional law and lectured on criminology at Stanford University, Oxford University, Saint Louis University School of Law, and the University of Melbourne.


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