THE POLICE
HAVE "NO AFFIRMATIVE DUTY"
TO PROTECT
US
This makes it very clear - the burden
to defend and or use deadly force, is a RIGHT that lies
with you personally to ACT accordingly and appropriately should you fear for your life and/or limb.
Affirmative duty to protect. Cf.
Reciprocal obligations;
South v. Maryland, 59 U.S. (How.) 396, 15
L.Ed.433 (1856) (the U.S. Supreme Court ruled that local
law-enforcement had no duty to protect individuals, but only
a general duty to enforce the laws.);
DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189, 109 S.Ct. 998, 1989 (1989)
(There is no merit to petitioner's contention that the
State's knowledge of his danger and expressions of
willingness to protect him against that danger established a
"special relationship" giving rise to an affirmative
constitutional duty to protect. While certain "special
relationships" created or assumed by the State with respect
to particular individuals may give rise to an affirmative
duty, enforceable through the Due Process [489 U.S. 189, 190]
Clause, to provide adequate protection, see Estelle v.
Gamble, 429 U.S. 97; Youngberg v. Romeo, 457 U.S. 307, the
affirmative duty to protect arises not from the State's
knowledge of the individual's predicament or from its
expressions of intent to help him, but from the limitations
which it has imposed on his freedom to act on his own behalf,
through imprisonment, institutionalization, or other similar
restraint of personal liberty.); http://laws.findlaw.com/us/489/189.html
Bowers v. Devito, 686 F.2d 616 (7th Cir.
1982) (There is no constitutional right to be protected by
the state against being murdered by criminals or madmen. It
is monstrous if the state fails to protect its residents
against such predators but it does not violate the due
process clause of the Fourteenth Amendment, or, we suppose,
any other provision of the Constitution. The Constitution is
a charter of negative liberties; it tells the state to let
the people alone; it does not require the federal government
or the state to provide services, even so elementary a
service as maintaining law and order.); (No duty to protect)
= Rule 12(b)(6) Motion to Dismiss;Cf. Reciprocial
obligations;
Warren v. District of Columbia (444 A.2d
1, 1981) ((O)fficial police personnel and the government
employing them are not generally liable to victims of
criminal acts for failure to provide adequate police
protection ... this uniformly accepted rule rests upon the
fundamental principle that a government and its agents are
under no general duty to provide public services, such as
police protection, to any particular citizen ... a publicly
maintained police force constitutes a basic governmental
service provided to benefit the community at large by
promoting public peace, safety and good order.); http://forums.philosophyforums.com/showthread.php?t=6260
Hartzler v. City of San Jose, 46
Cal.App.3d 6, 120 Cal.Rptr. 5 (1975) (The administrator of
the estate of Ruth Bunnell who had been killed by her
estranged husband brought a wrongful death action against the
city whose police department refused to respond to her call
for protection some 45 minutes before her death. Mrs. Bunnell
had called the police to report that Mack Bunnell had called
saying he was on his way to her home to kill her. She was
told to call back when Mack Bunnell arrived. The police had
responded 20 times to her calls in the past year, and on one
occasion, arrested her estranged husband for assaulting her.
The Court of Appeal held that the police department and its
employees enjoyed absolute immunity for failure to provide
sufficient police protection. The allegations that the police
had responded 20 times to her calls did not indicate that the
police department had assumed any special relationship or
duty toward her such as would remove its immunity.); http://www.copcrimes.com/brophy.htm#Hartzler
Davidson v. City of Westminister, 32
Cal.3d 197, 185 Cal.Rptr. 252 (1982) (A husband and wife who
were assaulted in a laundromat while the assailant was under
surveillance by officers, brought legal action against the
city and the officers for intentional and negligent
infliction of emotional distress and for negligent
investigation, failure to protect and failure to warn. The
Supreme Court held that: (1) the mere fact that the officers
had previously recognized the assailant from a distance as a
potential assailant because of his resemblance to a person
suspected of perpetrating a prior assault did not establish a
"special relationship" between officers and assailant under
which a duty would be imposed on officers to control
assailant's conduct; (2) factors consisting of officer's
prior recognition of assailant as likely perpetrator of
previous assault and officer's surveillance of assailant in
laundromat in which victim was present did not give rise to
special relationship between officers and victim so as to
impose duty on officers to protect victim from assailant; and
(3) victim could not maintain cause of action for intentional
or reckless infliction of emotional distress, in view of fact
that it was not alleged that officers failed to act for the
purpose of causing emotional injury, and that in the absence
of such an intent to injure, officer's inaction was not
extreme or outrageous conduct.); http://www.copcrimes.com/brophy.htm#Hartzler
Westbrooks v. State, 173 Cal.App.3d 1203,
219 Cal.Rtr. 674 (1985) (The widow and sons of a motorist who
drove into the void where a collapsed bridge had been,
brought action against the State, county, and county deputy
sheriff. The California Department of Transportation (Cal
Trans) was aware that a violent storm with heavy rains had
caused a bridge on State route 118 to collapse. A county
deputy sheriff had observed the beginning of the collapse,
reported it and requested assistance from Cal Trans. A jury
award of $1,300,000 was reversed in part by the Court of
Appeal which held: (1) the county deputy sheriff had no duty
to warn drivers that the state highway bridge had collapsed
during the storm, and his efforts to warn drivers did not in
any way increase the risk of harm to users of the highway,
and therefore the county was not liable to motorist's wife
and children; and (2) the judgment was upheld against the
state because the Cal Trans was notified at 1:52 a.m. and at
2:35 a.m., but no Cal Trans personnel nor CHP officer
appeared at the scene until 5:45 a.m., and that such delay
was unreasonable.); http://www.copcrimes.com/brophy.htm#Hartzler
Ne Casek v. City of Los Angeles, 233
Cal.App.2d 131, 43 Cal.Rptr. 294 (1965) (In an action against
police officers and city for personal injuries sustained by
Kathryne Ne Casek when she was knocked down on a sidewalk by
two suspects who had been arrested by the officers, the Court
of Appeal held the amount of force or method used by a police
officer in attempting to keep an arrested person or persons
in custody is a discretionary act for purpose of application
of doctrine of immunity of government officials from civil
liability for their discretionary acts, and therefore Ms. Ne
Casek who was injured by two escaped suspects who had been
handcuffed together could not maintain an action against the
arresting officers based on the officer's alleged negligence
in using insufficient force to keep the prisoners in
custody.); http://www.copcrimes.com/brophy.htm#Hartzler
Susman v. City of Los Angeles, et al., 269
Cal.App.2d 803, 75 Cal.Rptr. 240 (1969) (An action was
brought by several landowners against the City of Los Angeles
and the State pleading eleven separate causes of action for
damages arising out of the Watts' Riots' of 1965. The Court
of Appeal held that none of the allegations presented was
sufficient to show any duty owed by any of the officials
named as defendants to act to prevent or avoid the harm
suffered by the plaintiffs.); http://www.copcrimes.com/brophy.htm#Hartzler
Antique Arts Corp. v. City of Torrence, 39
Cal.App.3d 588, 114 Cal.Rptr. 332 (1974) (A silent burglar
alarm installed on the premises of the store operated by the
plaintiff was, during the course of a robbery by two armed
men, activated at 3:32 p.m. and the alert message was relayed
to the police department.
The dispatch message to the units in the
field was at 3:43 p.m., and a police unit arrived at the
scene of the robbery at 3:44 p.m. The delay in the
transmission of the dispatch enabled the robbers to complete
the robbery and escape with jewelry and merchandise in the
amount of $49,000. The Court of Appeal held that Govt. Code
section 846 provides for immunity if no police protection is
provided; or, if police protection is provided, but that
protection is not sufficient.. "The statutory scheme makes it
clear that failure to provide adequate police protection will
not result in governmental liability, nor will a public
entity be liable for failure to arrest a person who is
violating the law. The statutory scheme shows legislative
intent to immunize the police function from tort liability
from the inception of its exercise to the point of arrest,
regardless of whether the action be labeled discretionary'
or ministerial.'"); http://www.copcrimes.com/brophy.htm#Hartzler
http://straylight.law.cornell.edu/supct/html/04-278.ZS.html
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Defense
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