Addressing cops' confusion over 'the public duty doctrine'
Proper training on the principles of the public duty doctrine and how it applies to police officers is essential to avoid liability on the part of the department and officers
Co-authored with Eric P. Daigle
The so-called public duty doctrine provides that “absent a special relationship between the governmental entity and the injured individual, the governmental entity will not be liable for injury to an individual... the governmental entity owes a duty to the public in general. The doctrine has been commonly described by the oxymoron, ‘duty to all, duty to none’.”1
The concept of “duty” establishes a great moral obligation in those who have taken an oath to serve and to protect the public. Officers are instilled with the principles of honor, integrity, and selflessness. As a result of these basic principles, officers often feel required to take action in certain situations when taking no action may actually be the best course of action. Often, officers believe that they have a legal obligation to act above and beyond what is actually required of them.
Law enforcement professionals’ lack of understanding of the legal principles of the public duty doctrine often leads to inappropriate actions on the part of the officer. In addition, the fear of liability for “failure to act,” and the personal code of honor that many sworn public servants hold, influences their decision take action at all costs to protect and defend life and property. While this desire to serve the public is commendable, police officers must understand that they have no obligation to protect any one individual unless a “special relationship” exists. Rather, an officer’s sworn duty is to the general public.
Confusion and Conflict
By becoming a police officer, an individual does not give up his right to the protection of these general principles. A police officer does not “assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.”4
Following these general principles, “California courts have found no duty of care and have denied liability ‘for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.’”5
The concept of a lack of any special duty owed to any individual member of society who is in need of assistance often flies in the face of law enforcement professionals who have taken an oath of office to “protect and defend.” The oath of office for law enforcement officers, however, as required by the California Constitution, does not mandate duty to an individual.6 Rather, the oath cites the support and defense of the Constitution of the United States and the Constitution of California “against all enemies foreign and domestic.”7
In Our Nature to Help
One duty-dilemma issue, for example, may be the concern of contracting a fatal disease from performing CPR on a subject. Indeed, this is a real concern as just this past March, a deputy in Florida died five years after having contracted a virus while conducting CPR on an infant.9 Officers must discern the pros and cons of taking action in such a case to balance this unlikely tragic outcome against the more likely heartbreaking consequence of failing to act in a timely manner.
An officer’s misconception of his duty owed to the individual, however, may cause that officer to believe he has no choice but to provide assistance in the matter. While the officer is under no legal obligation to render aid to any one individual, once that officer decides to render aid to a victim, a special relationship may be established that produces a duty to an individual.
Examples from Case Law
Courts typically find that no duty has been established and deny recovery for “injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.”16For example, a plaintiff was unable to establish a duty on behalf of police when police failed to respond to a plea for assistance forty-five minutes before a homicide.17
The courts, however, have found that police officers may create a “special relationship” with individuals in certain circumstances, thereby establishing a duty of care to that individual. This “special relationship” may be created when an officer performs an affirmative act which places a person in peril or increases the risk of harm. For example, an officer who investigated an accident and instructed an individual to follow him to the middle of the intersection, where the individual was hit by another car, established a duty of care for that person;18 a highway patrol officer established a duty to an individual when he parked his vehicle with lights engaged behind the stalled motorist, but later left the scene without warning the motorist who had relied upon his protection and was struck by another car.19
A source of confusion for some officers may be that while federal law is clear that there is no liability for failure to act when no special relationship exists between law enforcement and an individual, some liability may exist in certain situations where the state legislature enacts laws mandating an officer’s duty to take action.21 One such state-mandated duty to an individual arises in the area of domestic violence. Throughout the country for many years, officers failed to take seriously the dangers of family violence. As a result, states enacted legislation mandating special provisions and protections for victims of child and spousal abuse. 22 As further documented in the California Commission on Peace Officer Standards and Training domestic violence workbook23, these requirements include that officers shall make every reasonable effort to identify the “dominant aggressor,” shall complete a report in all domestic violence cases, and shall take custody of any firearm or deadly weapon in plain sight.
A Solemn Pledge
Law enforcement personnel are moral and honorable public servants. Most sworn officers take their oaths of office as a solemn pledge — a pledge to safeguard life and property. Officers lose their lives every day attempting to fulfill this oath. Officers, however, often put themselves at risk because they incorrectly believe that they have a duty to act when, in fact, no such duty exists. Officers must balance the pros and cons of taking action against the rights, responsibilities, and the limitations of the profession imposed upon them by the Constitution, statute, and case law.
Proper training on the principles of the public duty doctrine and how it applies to police officers is essential to avoid liability on the part of the department and officers. The training should include a full and comprehensive review of the exceptions to this doctrine and any statutory requirements to act or protect individuals, as well as those situations in which, through an officer’s actions or omissions, create a “special relationship” resulting in a duty to persons.
About Eric P. Daigle
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