November 6, 2023 by Tom Roberts, Esq.
Failure to Furnish Police Protection to Specific Individuals in Virginia
Are Police Liable for Not Acting?
Under the general common law rule, known as the public duty doctrine, 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.
However, there are two generally recognized exceptions to the public duty doctrine. A government entity has an affirmative duty to provide police protection to a particular individual where (1) a special relationship between the police and that individual exists, or (2) the police have expressly promised to protect the individual.
Special Relationship – Duty of Slight Care to protect victim from criminal assault by a third party
Burdette v. Marks, 244 Va. 309 (1992), established a police officer may have a duty of slight care to protect a victim from a criminal assault by a third party. In Burdette, an officer responding to a call for service observed a prolonged assault and had enough information to know which party was responsible. The officer did not intervene to protect the innocent party, despite the readily apparent risk to the victim of severe injury or death. The Supreme Court held the complaint adequately stated a gross negligence claim against the officer, based on a special relationship theory
EMAIL ATTORNEY BODOH
Andrew T. Bodoh, Esq.
has litigated cases involving issues of special relationship in Virginia trial and appellate courts.
Deshaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189 (1989)
Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. See, e. g., Harris v. McRae, 448 U.S. 297, 317-318 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (no obligation to provide adequate housing) (discussing Due Process Clause of Fourteenth Amendment); see also Youngberg v. Romeo, supra, at 317 (“As a general matter, a State is under no constitutional duty to provide substantive services for those within its border”). As we said in Harris v. McRae: “Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference . . ., it does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom.” 448 U.S., at 317-318 (emphasis added). If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.
Tort Violation Not Necessarily a 14th Amendment Due Process Violation
Estelle v. Gamble, 429 U.S. 97, 103 (1976),(“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met”). In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.
See Restatement (Second) of Torts § 323 (1965) (one who undertakes to render services to another may in some circumstances be held liable for doing so in a negligent fashion); see generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts § 56 (5th ed. 1984) (discussing “special relationships” which may give rise to affirmative duties to act under the common law of tort). But the claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation. See Daniels v. Williams, 474 U.S., at 335-336; Parratt v. Taylor, 451 U.S., at 544; Martinez v. California, 444 U.S. 277, 285 (1980); Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976). A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not “all common-law duties owed by government actors were . . . constitutionalized by the Fourteenth Amendment.” Daniels v. Williams, supra, at 335. Because, as explained above, the State had no constitutional duty to protect Joshua against his father’s violence, its failure to do so — though calamitous in hindsight — simply does not constitute a violation of the Due Process Clause.
Deshaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 202
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Burdette v. Marks, 244 Va. 309 (1992)(But, Virginia subsequently clarified that the so-called “public duty doctrine” does not apply in cases based on a special relationship duty to protect. Burns v. Gagnon, 283 Va. 657, 669-71 (2012).
A.H. v. Church of God, 297 Va. 604 (2019); Terry v. Irish Fleet, Inc., 296 Va. 129, 135 (2018)(no duty to warn or protect another person against acts of criminal assault by third parties)
Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897, 901 (N.C. 1991).
Ashburn v. Anne Arundel Cty., 306 Md. 617, 635, 510 A.2d 1078, 1087 (1986) (holding that no special relationship existed between a car-accident victim and a police officer who, after detecting the tortfeasor’s inebriated state, failed to detain him and prevent him from driving)
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Category Civil Rights, Due Process, General, Personal Injury Law | Tags: Andrew Bodoh, Civil Rights Law Firm, due process violation, failure to protect, police liability for failure to act, police liability for failure to protect, special relationship
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