November 6, 2017
“To Protect and to Serve” – the ubiquitous creed emblazoned across millions of police cars throughout Los Angeles and indeed the United States. This motto is consistent with the common belief that police officers as well as other law enforcement officers are here to protect us. After all, we are all taught to dial 9-1-1 when we need help.
Subject to narrow exceptions, the United States Constitution does not require law enforcement officers to protect you from other people, according to the U.S. Supreme Court. This notion contradicts our engrained perceptions, but it’s still the law today.
In the 1989 landmark case of DeShaney v. Winnebago County Department of Social Services, the U.S. Supreme Court held that the failure by government workers to protect someone (even 4-year-old Joshua DeShaney) from physical violence or harm from another person (his father) did not breach any substantive constitutional duty. In this case, Joshua’s mother sued the Winnebago County Department of Social Services, alleging it deprived Joshua of his “liberty interest in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment’s Due Process Clause, by failing to intervene to protect him against his father’s violence.” While the Department took various steps to protect Joshua after receiving numerous complaints of the abuse, the Department took no actions to remove Joshua from his father’s custody. Joshua became comatose and extremely retarded due to traumatic head injuries inflicted by his father who physically beat him over a long period of time.
Nevertheless, the Court found that the government had no affirmative duty to protect any person, even a child, from harm by another person. “Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,” stated Chief Justice Rehnquist for the majority, “even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual” without “due process of the law.”
The DeShaney decision has been cited by many courts across the nation and reaffirmed by the U.S. Supreme Court. Namely—on June 27, 2005, in Castle Rock v. Gonzales, the U.S. Supreme Court again ruled that the police did not have a constitutional duty to protect a person from harm. The decision overturned a federal appeals court ruling which permitted a lawsuit against the town of Castle Rock for the police’s failure to respond after Jessica Gonzales tried to get the police to arrest her estranged husband Simon Gonzales for kidnapping their three daughters (ages 7, 8, and 10) while they were playing outside, in violation of a court-issued protective order.  After Simon called to tell Jessica where they were at (in Denver at an amusement park), for hours she pleaded for the police to arrest Simon.  But, the police failed to act before Simon showed up at the police department and started shooting inside, and with the bodies of the 3 children in the trunk of his car.
In her suit against the town, Jessica argued that the protective order stating “you shall arrest” or issue a warrant for arrest of a violator and that it gave her a “property interest” within the meaning of the 14th Amendment’s Due Process guarantees, which prohibits the deprivation of property without due process. By framing their case as one of procedural Due Process and not of substance, Jessica and her lawyers had hoped to get around the 1989 DeShaney precedent. To no avail, the U.S. Supreme Court saw little difference between this case and the DeShaney case. Justice Antonin Scalia, writing for the majority, stated that Ms. Gonzales did not have a “property interest” in enforcing the restraining order and that “such a right would not, of course, resemble any traditional conception of property.”  The Court went on to reaffirm the DeShaney ruling that there is no affirmative right to aid by the government or the police found in the U.S. Constitution, and thus no legal recourse could be brought thereunder.  The “no duty to protect” rule remains unwavering and the law today.
Needless to say, the stories of Joshua DeShaney and Jessica Gonzales’ three daughters (and countless similar stories) are saddening, and the rulings seem to be at odds with our common and fundamental understanding that the police are here to ensure our safety and provide protection. One need only look to the door of a Los Angeles police cruiser to find those reassuring words. However, those words are misleading in light of these Supreme Court rulings.
Though alarming, we simply have no affirmative right to police aid, even when a person, including a helpless child, faces imminent danger. We are all responsible for our own personal safety, whether we like it or not.
— By Keobopha Keopong, Esq., Barnes Law
Keo Keopong is an associate attorney with Barnes Law, licensed to practice law in California.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 There are a few narrow exceptions to the “no duty to protect” rule. Due to their limited application, the exceptions are not discussed here.
 DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). <https://www.law.cornell.edu/supremecourt/text/489/189>
 Ibid; see also “The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
 Castle Rock v. Gonzales, No. 04-278.
 Castle Rock v. Gonzales, No. 04-278; http://www.nytimes.com/2005/06/28/politics/justices-rule-police-do-not-have-a-constitutional-duty-to-protect.html?_r=0.
 Although the protective order did mandate an arrest, or an arrest warrant, in so many words, Justice Scalia said, “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.” Castle Rock v. Gonzales, No. 04-278; http://www.nytimes.com/2005/06/28/politics/justices-rule-police-do-not-have-a-constitutional-duty-to-protect.html?_r=0.
 Castle Rock v. Gonzales, No. 04-278.Posted in: Uncategorized