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Departments : Point of Law

Liability for Failure to Protect

As a police officer, you can be sued for failing to prevent an injury in certain circumstances.

June 01, 2010  |  by Devallis Rutledge - Also by this author

Under the federal civil rights statute (Title 42, section 1983, of the United States Code), state and local government officials can be sued for money damages on grounds of the violation of the plaintiff's constitutional rights under color of authority. (Federal officers can be sued under Bivens v. Six Unknown Named Agents.) For example, if an officer makes an unreasonable arrest, the arrested person may be able to sue for a violation of his or her Fourth Amendment rights, because that amendment explicitly guarantees everyone a right to be free from unreasonable seizures.

Due Process and Civil Liability

Of course, there is no constitutional right to be protected by police against exposure to danger. So how could a person frame a federal lawsuit against an officer by simply claiming the officer failed to protect him from whatever injury he suffered? The Supreme Court and the U.S. Court of Appeals have said that the Fifth and Fourteenth Amendment due process clauses can provide grounds for a civil rights lawsuit under either of two separate doctrines: (1) the "special relationship" doctrine; or (2) the "state-created danger" doctrine.

"Special Relationship" Liability

"A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g., when the individual is a prisoner or involuntarily committed mental patient)." (Uhlrig v. Harder) In other words, when you assume custody of a person, you also assume the responsibility to take reasonable steps to provide for his or her care and safety and to ensure the person's protection against foreseeable risks.

This kind of claim is primarily made against corrections officials, but it may also be made against local police in their operation of a jail or even while a person is under arrest and in the custody of an officer. For example, if you arrest and handcuff a person and place him into the back seat of the police car for transportation to the station but you fail to secure him with a seat belt, any injuries he sustains if someone rear-ends your police car could make you and your employing agency liable for a due process violation. Since your prisoner was unable to put on his own seat belt, you had an affirmative duty to belt him in before driving away.

"State-Created Danger" Liability

More common than a claim of liability based on the "special relationship" doctrine is a claim that someone who was not in police custody nevertheless came to injury or death at the hands of another, or via human or natural hazards, because of something police did or failed to do in circumstances of obvious danger. This is the "state-created danger" theory of liability.

"Although the state's failure to protect an individual against private violence does not generally violate the guarantee of due process, it can where the state action affirmatively places 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 otherwise have faced." (Kennedy v. Ridgefield)

In other words, if you become involved in an incident and your action or omission places the person in a more precarious position than if you had not intervened at all, you could face liability for creating a greater danger.

Examples of application of the "state-created danger" doctrine are more numerous than "special relationship" cases, and they are often far more tragic in their facts. Just a few will be enough to illustrate how this doctrine works.

Wood v. Ostrander.

Washington troopers stopped a car at 2:30 a.m., arrested the driver for DUI, and impounded the car, leaving the passenger/wife to walk away alone in a high-crime area. She was later picked up by a man who drove her to a secluded spot and raped her. The Court of Appeals ruled that these allegations created potential liability based on state-created danger, since the police actions placed the wife at greater risk of being assaulted than she had faced before police intervention.

Comments (9)

Displaying 1 - 9 of 9

Steven Davis @ 9/24/2011 4:13 PM

As a retired LEO in California I have been following the Kelly Thomas case. Six Officers were involved but only two were criminally charged. The other four clearly failed to potect victim Kelly once they arrived and saw the excessive, and deadly force being used against a helpless citizen.

Tony @ 7/24/2012 2:23 AM

Is it against the law for an officer not to put your seat belt on you once your in custody?

robert hovey @ 11/7/2012 12:16 PM

Currently working in training for Sheriffs Dept anyone aware of any liability cases for police that had some connection to or were because of something the Officer's did or put on social media?

David @ 6/1/2014 4:02 PM

I was got arrested few days ago for domestic battery the first time i ever been in trouble my sister was on drugs and stap I was sighting in my gun and she lunged at me grabing the gun i through her on to the ground and she was fighting to get my gun and ammo I have children at my house and she got a bloody nose from it I got charged for failure to protect and domistect battery 3 rd

David @ 6/1/2014 4:03 PM

Can I sue the cops for that

Bobby Davis @ 11/28/2014 11:33 AM

On TV you always see scenes where an ordinary guy gets arrested and thrown in a jail cell with a bunch of thugs who immediately start intimidating him. Does this really happen? Don't the police have a responsibility to protect the guy from the criminals in the jail?

Kris @ 1/29/2015 3:52 AM

I was a police officer - in 2012 my elderly father was assaulted by his only grandson. My 28 yr old nephew smashed my father in the face with a beer bottle. We both got PFAs because my nephew was threatening to kill both of us. My father also wanted him arrested so I helped him into a PD. A week later the suspect's mother filed a complaint with my Chief alleging I misused police computers and lied on official PFA affidavits. My dept had walked me through the PFA process so I was shocked when an IAS was pulled on me. After 2 months of investigating my father and I (DV victims) the complaint was deemed completely unfounded. They had caught my sister in 6 provable lies. I wanted her arrested and they refused. She stalked me throughout 2013 (and to present) and I informed them in writing of every incident. Dad died and at funeral she attacked me and got fake PFA. My PD refused to comply with a judge's order for a gun on duty. Then I lost my job and career. Waiting to hear from ACLU

K. Nicholson @ 12/19/2016 4:09 PM

I am unsure of what type of lawyer I need. My mother was murdered. The man that did it admitted to his family that he did it, as well as to me and my husband-while pointing a loaded gun at us. The police said they were going to start an investigation, but a young lady was missing at the time, and all police were pulled off other cases and put on hers. During that time, evidence, such as bloody carpet, bloody bed linens, etc came up missing, along with my mother's bank card, all valuables from her home, etc. The police failed to "pick up" the investigation and are now pointing fingers at everyone else they can. Who can I speak with?

mauricio @ 3/9/2017 3:54 PM

I was arrested September 18 2016 for a DUI. I took a plea deal and was convicted. DMV paperwork shoes test type BR BAC .06 and court papers show BAC .08.
The night of the arrest I was on the right shoulder of the freeway parked with my emergency flickers on because of an emergency. CHP arrived and talked to me and saw passengers intoxicated so they conducted a test and I admitted to drinking alcohol and arrested me. They put me in the patrol car hancuffed with my seatbelt on and they got a call of another crime scene. They then turned on their siren lights and went on the freeway at high speeds towards the crime scene about 3 miles away with me inside. As we arrived to the crime scene a vehicle was fliped over on its side. The Officer decides to plow the overturned vehicle several times with its bumper grill guards to put it on its upright position while I'm in the patrol car hitting my body in to the side door. They were unsuccessful so they waited for the tow truck to do it. They then put the intoxicated driver inside the patrol car with injuries and blood next to me almost touching me. He didn't fit so they put him in the passenger seat. They then drove us to the CHP office and after that to the hospital where they released him and then took me to jail. In a lapse time of 3 hours from my arrest to incarceration. I feel that by taking me to the other crime scene at high speeds, trying to over turn a flipped vehicle with me inside, and putting an injured person with external bloody injuries next to me placed my life and aswell as my health in danger.
I want to know if i can appeal my conviction based on those facts?

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