Court finds no legal duty to protect crime victims

One of the real epiphanies in law school is when students learn that the law does not require people, and even the police, to affirmatively protect people. New York does not have a good samaritan law, such that if you see someone lying in the street calling for help, you are not legally required to help him. A related rule governs police conduct. We see that in this case.

The case is Torres v. Graeff, a summary order decided on November 8. In DeShaney v. Winnebago County (1989), the Supreme Court said the family of a young boy who was severely by his father could not sue the Department of Social Services for failing to protect the boy, even though DSS knew or should have known the boy was at risk, particularly since the boy was not in DSS custody.

The reasoning in DeShaney has been applied to the police. The Second Circuit has stated that "a [state actor's] failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." However, the Court has also stated that a state actor, such as the police, may be held liable to a victim of private violence under a theory of "state-created danger" if the police engaged in conduct that "affirmatively enhanced the risk of violence." That case is Okin v. Cornwall on Hudson, 577 F.3d 415 (2d Cir. 2009). Under Okin, the police may be found to have enhanced the risk of violence against someone "by providing the aggressor with assurances that he would be permitted to act with impunity." A plaintiff can allege the police had implicitly communicated with the violent actor through a showing of "repeated, sustained inaction by officers in the face of potential acts of violence."

This case does not satisfy that standard. There is no sustained inaction here. Plaintiff alleges that the police responded to a single report that a mentally-ill man was acting violently by placing him under custodial arrest under New York Mental Hygiene Law section 9.41. They also utilized force to handcuff and detain the man in the back of a police car, removing him from the premises and taking to the hospital for a mental health evaluation and instructing hospital staff to contact the police at a specified time before releasing him. The Court (Jacobs, Lynch and Crotty [D.J.]) writes:

The fact that the officers asked to be contacted at the conclusion of the medical evaluation rather than remain physically present during it cannot be read as having transformed their affirmative “interference” with Bumbolo’s violence and their unwaveringly adversarial posture toward him throughout the interdiction into a “plainly transmitted [] message that what he did was permissible and would not cause him problems with authorities.” The complaint therefore fails to state a constitutional claim against the officers. On the facts pled, the tragedy that ensued is simply not
one for which the officers may be held liable under the Due Process Clause.