This column was birthed by an episode of Radiolab I heard last week on National Public Radio. It stunned me when I realized it applies to me, to you, and to the Honolulu Police Department.
Most police departments in America employ the slogan “To Serve and Protect.” Or “To Protect and Serve.” Turns out the “serve” part is correct for sworn officers, but not so much the “protect” part.
In #545 U.S. 748 in 2005, City of Castle Rock v. Jessica Gonzales, the U.S. Supreme Court held 7-2 that except in certain rare cases police do not have a duty or obligation to protect citizens.
In Hawaii, too. We and the 49 other states do not have any statute which mandates what police officers must do. There’s an occasional must not do, such as use of the choke hold. But no must do, no protect the citizenry.
The high court held that the Constitution is a negative rights one, meaning it’s there to keep laws from infringing on us. The Constitution is there only to protect us from the state.
This bad-for-us decision (justices Stevens and Ginsburg dissented; Scalia wrote the majority opinion) came out of this incident: Jessica Gonzales of Castle Rock, Colorado, had a restraining order against her violent husband. One day, he stole their three young daughters. Jessica went to the police. They said they’d look into it, but never did. The husband showed up at the police station, shooting. Cops shot back and killed him. In his car they found the three girls — dead. The husband had shot them.
Jessica sued the police department under the 14th Amendment:”The state shall not deprive any person of life, liberty, or property without due process of law.” The property being the three girls.
The police attorney said: “To my knowledge, we’ve never held that the police have an actionable obligation to enforce them [temporary restraining orders].”
Ginsburg asked: “What does the restraining order do then?”
Attorney: “It does two main things. First of all, it gives her rights against her husband, which are enforceable through contempt, and are enforceable by asking the police to enforce them. That is the interest of the restraining order gives her.”
Ginsburg: “But only to ask the police and they’re not obliged to respond?”
Attorney: “But only to ask the police and they’re not obliged to respond.”
Justice John Paul Stevens then asked the attorney: “Do the police have any duty at all, in your view?
The attorney replied: “I don’t believe that the police have any sort of actionable duty.”
So that’s been the precedent for the past 15 years.
Police can protect you if they want to. Don’t have to.
Pretty scary, huh?
City charters say things like “Protect the peace, maintain order, enforce the law,” but no mandates for what police are supposed to do other than what’s required inside police departments themselves.
No democratic control. As on lawyer said: “We don’t use the ordinary ways that we do everything else in government with regard to the police.”