Author: MichaelEhline

NO! Generally, The Police Have No Duty To Protect You!

Says more than one Landmark Case at the US Supreme Court Case, Including Castle Rock and Deshaney

And until the government holds itself to the same standards it holds taxpayers to, don’t expect the police to intervene during your crisis. Police carry guns to defend themselves, not us.

Introduction to Self-Defense and Police Protection

Americans have no general civil right to sue the police for failure to provide protection. In a nutshell, you cannot sue a government agency or a school district unless done within a certain period after suffering an injury or loss. You can only sue the police or the Department of Social Services for certain things.

And providing you with your personal protection services is not law enforcement’s function. Since these are the King’s men, they are his sovereign representatives, shielded under the ancient doctrine of sovereign immunity.

Time and time again, left-wing politicians have argued that we don’t need private guns since we have police while simultaneously asserting we must also defund the police because of “systemic racism.” In a nutshell, their advocates at the New York Times, Atlantic, Washington Post, CNN, Mother Jones, etc., argue that socialism and a welfare state are incompatible with self-defense rights.

Those on the right argue we have a Second Amendment to guard against a corrupt government and to protect our families and businesses. In the middle, everyday people try to make sense of it all. I am Michael Ehline, a personal injury attorney in Los Angeles.

I am a world-famous, award-winning attorney, honorably discharged U.S. Marine, legal historian, and expert on gun laws and firearms safety. Below, I will present the law of municipal police and cover why police have no general duty to protect individuals. Let’s go!

Government Agents Have No General Duty To Protect People Under Deshaney Case?

In Castle Rock v. Gonzales, Jessica Gonzales sued for the death of her three daughters when the State refused to help her save them from their murderous father. The late Justice Antonin Scalia restated the ancient common law rule in Deshaney v. Winnebago County Department of Social Services (1989): “A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”

In Deshaney, supra, a four-year-old boy had been continuously abused by his father. The County Department of Social Services knew about it but neglected to take the child into protective custody. The boy’s mother sued CPS after the child became vegetative. Ms. Deshaney argued the County of Winnebago violated her son’s: “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.”

Similar to Jessica Gonzales, after her case made it to the Supreme Court, the majority in Deshaney relied upon common law and found that government workers had zero duty to protect 4-year-old Joshua DeShaney from physical assault or violence. Hence, as was the case with Ms. Gonzales, the government did not owe or breach any substantive constitutional duty to the young boy or his adult guardian. Deshaney v. Winnebago County should have alerted parents to take this role more seriously. But alas, the mainstream press doesn’t cover these stories about Ms. Gonzales or Ms. Deshaney very well.

Ever since the original Watts riots of 1965 and before California, personal injury lawyers have tried every back door to defeat qualified and sovereign immunity rules after police failed to protect citizens from rioters. And these were people already known by authorities as hellbent on killing and destroying people’s lives. No one has won based on the theories argued and the parties seeking relief.

Why Is The Government Trying To Make Guns Illegal For Private Citizens If They Refuse To Protect Me?

Proponents of the Second Amendment have argued, among other things, that since the police have zero affirmative duty “to protect and to serve,” citizens must take steps to protect themselves. Opponents of self-defense rights counter that we must call 9-1-1 because the police will protect us against “imminent threats.”

Suppose your attacker is patient enough to wait for 15 minutes or more for police protection, or your elected politicians didn’t abolish your police department or release violent felons as a form of reparations and “social justice.”

In that case, the police or unarmed social services worker may show, eventually. Perhaps our founding fathers were right when they went to war after the King of England tried to seize our gunpowder. How can parents feel safe after the Uvalde police stood around arresting and pepper spraying parents? At the same time, a known, violent man executes their children, knowing many in their government want to disarm them immediately. As social media explodes with calls to disarm law-abiding citizens and disarm legal adults, let’s look at why Americans have enshrined gun rights into their constitutions.

“The first battle of the Revolution was fought over gun control. The British government wanted to seize the lawfully owned firearms of the colonists. If British troops could disarm the militia (All males 16 and over are AUTOMATICALLY “irregular militia”), there would be less of a threat to their control.” – The Morning Call.

So, we know that our founding fathers wanted to avoid a communist Chinese-style dictatorship. They restated the common law rule that all “Freemen” should be armed and well-trained. So, the case below makes more sense when you understand that it has always been your duty to protect yourself, despite all the nonsense non-lawyers are arguing on social media.

Police Rarely Have a Duty to Protect?

True, Unless police have assumed a duty to protect you, they don’t have one.

“Neither the Constitution, nor state law, impose a general duty upon police officers or other governmental officials to protect individual persons from harm — even when they know the harm will occur,” said Darren L. Hutchinson, a professor and associate dean at the University of Florida School of Law. “Police can watch someone attack you, refuse to intervene and not violate the Constitution.”

The Supreme Court has repeatedly held that the government has only a duty to protect persons who are “in custody” …” [Emphasis] – Mises Institute

An Armed Society Is A Polite Society When Police Fail To Protect You?

We saw the only businesses that made it out of the Rodney King riots with minor damage were those guarded by heavily armed Korean-descended shopkeepers. These brave, many newly proclaimed US citizens were armed with standard capacity, semi-automatic centerfire rifles like AR 15s, AKMS 47 clones, and handguns. These people protected themselves from looters, rioters, and anti-Asian, African American gangsters.

• What Do Some Korean-Americans Say About Police Assistance?

An NPR news reporter was surprised to learn that armed Korean store owners were the only people who stayed safe during the L.A. Rodney King riots. His interview with one of them was telling.

“MARTIN: Sure. You were trying to create a protective barrier, and you succeeded in saving your store.

[Mr.] HA: Yes.” – NPR, “Korean Store Owner On Arming Himself For Riots”

Most of the firearms these men used are now declared illegal by our California state legislature under Roberti Roos, felonies to possess. Like the Uvalde school massacre, the LAPD stood around and did nothing but protect city property. Can you think of a reason why California is trying to abolish all semi-automatic, centerfire rifles and already restricting how much ammo you are allowed to own or have in your gun’s magazine? King George and Mao Tse Tung had many based upon well-settled history.

Since My Self-Defense Rights Are Questionable, Why Don’t I Have A General Right To Be Affirmatively Protected By Law Enforcers From My Attackers?

We have seen elected DAs filing murder charges against law-abiding citizens trying to defend their families, businesses, and homes with guns. (In the Rittenhouse matter, two progressive DAs argued he should “take his beating” rather than defend himself from a mob of convicted violent felons striking him with a skateboard, chasing him with a handgun, SHOOTING AT HIMS AND shouting “kill him.”) Eventually, the charges get thrown out in most cases, as was the case in the political show trial of Kyle Rittenhouse.

But typically, using a firearm to defend yourself, even if it’s on tape (clearly defensive), will result in your arrest and bankruptcy defending false charges. And unless the police took an affirmative act in furtherance of some duty, they assumed to protect you. You are out of luck most of the time. You are left facing jail to invoke an unalienable right after saving your life, limb, and property. Parents faced this in Uvalde, Texas, who demanded police do something, or they would.

In that case, it took a parent with a gun to get the kids out. Since his child attended the school and his wife worked there, a federal agent (US Border Patrol) went in and got his kid out FIRST after breaching the Uvalde Police’s security perimeter.

The traditional notions of parents were shattered when they started reading this article and contacting me directly after the shooting. Sadly, the for-profit media does not report the truth. So, let’s learn some more about the over 600-year-old common history of the no “duty to protect” rule.

SCOTUS opined: “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.” (DeShaney v. Winnebago County Department of Social Services (1989) 489 U.S. 189). (Read the case here.) Warren v. District of Columbia, 444 A.2d 1 (DC Ct. of App. 1981) is the seminal US case that started it all. In Warren, three women were held hostage by two violent men. Although the women were able to phone the police department two times during their 14-hour gang rape, the police never showed.

The women were later discovered, beaten, robbed, and bloodied after enduring hours of painful vaginal, anal, and oral rape. SCOTUS sided with law enforcement, stating there is a “well-established rule that official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection.” In other words, despite the imminent danger, the cops did nothing. Imagine if one of those women rape victims had a firearm? If she had used it in a town like Washington State or DC, she’d been arrested, called a racist by CNN and WaPo, and probably lost her job. That is the State of things today in America, where “illegal” is legal and right is wrong. (Orwell).

When Do The Police Have A Duty To Protect Me?

The late, great Johnny Cochran lost that argument once and for all back in 1996. And once again, the Supreme Court reaffirmed its 2005 decision in Castle Rock v. Gonzales.

There, SCOTUS reminded us the only time police have liability to citizens for failing to provide police protection is:

1. “Imminent Danger,”
2. After police accept a duty to do something,
3. When police deny you police protection based on your race or some related civil rights violation.

Otherwise, “police agencies are not obligated to protect citizens.”

Castle Rock was just one in a string of cases stemming from the original Watts riots and the later Rodney King riots throughout Los Angeles that spilled over nationwide. Those King riots began in April 1992, soon after a Simi Valley jury acquitted four Los Angeles police officers who severely beat black motorist Rodney King, a known, violent felon being pursued into the city by the CHP cruisers on the freeway. King was driving his vehicle above 100 mph. King was high on PCP. (Source).

• If The Judge Acquits, Find Another Glove to Fit!

Two of the “L.A. Four“ who beat King were later criminally convicted for violating King’s federal civil rights. During the Rodney King Riot’s aftermath, the late Johnny Cochran – “if the glove doesn’t fit, you must acquit” – got creative, trying to create a loophole to sue the police. In that case, the plaintiffs urged, “State immunity cannot impinge on federal constitutional rights–the right granted to all citizens under the 14th Amendment to equal protection under the laws.“ – Eric Ferrer, Esq.

Attack victim Reginald Denny, a white man, (and others) alleged his constitutional rights were violated by selective LAPD enforcement policies, deliberately leaving minority neighborhoods to fend for themselves. The Denny lawsuit alleged that police and City Council members redirected essential resources away from locations “composed predominantly of black and Hispanic populations to areas in the city composed predominantly of Anglo populations.”

We are all entitled to equal protection under the law. These cases argued that police disparately denied police protection to some classes but not others. Because of this, African American gang member Damian Williams and his friends would not have thrown bricks at the white trucker Denny’s head, nearly killing him during the black gang member’s racially motivated attack against Denny.

Attacks against white people sitting in cars seem to be part and parcel of BLM tactics in 2020-2021. However, these plaintiffs’ lawyers failed to produce evidence of a police policy, practice, or custom to discriminate in officers’ deployment to protect people or things. (Monell claim)

“A federal appeals court has rejected truck driver Reginald Denny’s claim that racist police deliberately withdrew from the Los Angeles neighborhood where he was beaten during the 1992 riots. The 9th US Circuit Court of Appeals … upheld a lower court’s decision to dismiss Denny’s $40 million lawsuits…” in 1998. – Source, AP.

Why Don’t Police Have A General Duty To Protect You? A Little History About Municipal Police Agencies

A little history will do you some good. Modern policing emerged in the US during the country’s period of growth, beginning in the mid-nineteenth century. Like reading law in a law office, our municipal police model was heavily based upon the British/UK policing model established beginning around 1829. In the US, our first tax-funded municipal corporations organized professional full-time police services in 1838 Boston. Soon after, New York started their civilian police force in 1844. A bit later, Philadelphia set up its police force in 1854.

Police are magistrates, similar to judges. Police officers have a broad mandate to keep the peace, including intervening to prevent someone from infringing upon another person’s freedom and property interests. When a cop pulls you over and detains you during a traffic stop, he is acting as your prosecutor, judge, and jury, conducting a mini roadside trial. The only absolute limit on their police powers has to do with incarceration powers, which is limited. A court fines and levies penalties based on the facts presented by the traffic magistrate surrounding the investigative stop.

Officers have broad discretion to let you off with a warning or throw the book at you. Police officers play many essential public functions, such as watchmen, patrolling, and legalistic, depending on how local governments deploy them. Police forces also bring significant revenue in traffic fines, criminal penalties, court assessments, and fees. This helps with their pensions and political aspirations.

Historically, police, including Sheriffs at common law, had no affirmative duty to protect citizens against individual attackers. However, they set up a posse and arrested these highwaymen and lawbreakers for criminal actions.

Modernly, it’s much the same: police investigate, usually after the crime has already occurred, and make arrests based on their investigations.

Whose Public Safety Interests, If Any, Do Police Serve?

Unless an exception applies, NOT YOURS! Municipal, County, State, and federal police remain a civilian force of “public servants” paid for by your local, State, and federal tax dollars. Courts have repeatedly ruled that their ONLY duty is to serve the party’s [a government agency] public safety interests that “employ” them.

Police have zero Constitutional duty to protect YOU. Police don’t work for you. Many of you older folks remember the 1992 Los Angeles riots, sometimes called the 1992 Los Angeles Uprising, where widespread looting, assaults, and arson happened due to King’s beating.

• Rioters Are Free To Attack Me?

Absolutely. Your legal remedy is to obtain a weapon, like an AR15, defend yourself by running rioters over with your car, and pray CNN or Trevor Noah doesn’t accuse you of being racist, tainting the prosecutor or jury. Local cops only protected government property during the King riots, leaving rioters to attack primarily unarmed citizens. The US Supreme Court affirmed this fact in DeShaney vs—Winnebago County Department of Social Services and Town of Castle Rock vs. Gonzales. Over 100 small-business owners fared no better when insurance companies failed to pay them millions in business interruption and property damages claims seeking insurance payments. Most of these small businesses went under. “The fire was caused by inadequate police protection.”

• As Long As Police Impartially Enforce Laws, They Owe You Nothing.

True. When cops enforce laws, they must remain impartial. Police discretion won’t excuse exceeding proper force or falsely arresting a person. When police don’t discriminate in their idiocy, negligence, or impotence at enforcing laws, the Constitution does not require them to protect you. That is not their oath of office as police.

Can Any Lawsuits Prevail When A Cop Fails To Provide You Protection?

Yes. In any claim against the police for failing to protect you, your biggest hurdle will be defeating the sovereign immunity defense with the evidence you fit as a plaintiff. For you to allege negligence against anyone, they must first owe you a duty to do or not do a thing. Since police or government officials have zero general duty to protect you or your family affirmatively, most negligence cases like this are not winnable.

If the police assumed a duty (discussed below), that is one way to make a claim stick. And if you sue under the Due Process Clause, mere negligent conduct won’t be enough to go forward. You have to show police disparately refused your protection while not denying protection to others. (See Davidson v. Cannon (1986) 474 US 344.)

• Sovereign Immunity and Qualified Immunity- What Is It?

This is why you have difficulty winning cases against the government. The underpinnings of this  arise for two reasons:

1. Governmental tort immunity when municipalities are engaged in governmental functions, including fire-fighting, police protection, etc. (According to our one Supreme Court, these remain almost universally governmental functions.)

2. The common law notion that absent a statutory duty, a municipal corporation cannot be held liable for mere inactivity by public servants, even if you are damaged. After all, the police had no duty to act.

Besides that, no duty exists for police to protect you, even when police falsely imprison you or stomp on your smartphone. At the same time, your video records them; state law provides police/Sheriffs with sovereign immunity unless you can prove the police violated your rights.

Can I Defeat Sovereign Immunity When Police Fail To Protect Me?

Not exactly. You could use a public servant in their capacity if they were acting, frolicking, or detouring outside their police duties when failing to protect you. But it’s doubtful they owed you a duty unless through a contract or statute. The State remains sovereign, subject to suit in limited situations agreed upon in the Government Code. If you are lucky enough to get your government claim filed using the correct form with the right agency within the average six-month filing period, you can always sue for something. Supporters of more gun control don’t know this information or want more government control over their lives.

How Can I Successfully Sue Police Cloaked With Sovereign Immunity For Failing to Protect Me?

That is the right question you should ask. Legal experts say the pivotal US Supreme Court ruling in 1989, known as the DeShaney decision, will impact your success. In DeShaney, a small boy was killed by his abusive father. Government officials learned of the abuse but had completed their statutory, affirmative “mandatory” reporting duties to DSS. That case hinged whether DSS officials should have intervened to remove the child into alternative care. The case could have proceeded if DSS had insidiously failed to remove the child as a product of unfair discrimination.

• Prove You Are A “Disfavored Minority”?

Chief Justice William H. Rehnquist clarified that the government had no constitutional duty to provide individual citizens with executive-style protection. But he also said, “The state may not selectively deny its protective services to certain disfavored minorities.” White privilege appears to have drawbacks when a constitutional right is denied.

“‘It will be meager comfort to Joshua and his mother to know that if the state had “selectively den[ied] its protective services” to them because they were “disfavored minorities…”‘ (id.)

Since white people are not a “disfavored minority,” they could potentially be selectively denied police protection under this argument. In this case, it appears to pay if the victim remains in a protected class of perpetual, state-labeled, “disfavored” victims. If you prove that police selectively enforce rules disparately, you can sue police for failing to help you!

• Be A Prisoner Or Subject To State Confinement

The State’s duties to you are spelled out even if you are a prisoner. They cannot guarantee you’ll be safe among inmates. They must not subject you to deprivations not generally authorized by their confinement. (See, e.g., WhitleDue Process Clause’s protections 327; Youngberg v. Romeo, 457 US, at 316, (this case involved shackling a committed mental patient against their will);  Hughes v. Rowe (1980) 449 US 5, 11  (inmate removed from general prison population and confined to administrative segregation); Vitek v. Jones (1980) 445 US 480, 491-494.

Because an inmate is entitled to receive proper medical treatment, he can make an Eighth Amendment civil rights claim if he can prove the State showed “deliberate indifference” to their “serious” medical needs. (negligent or inadvertent failure failed to meet this burden; Estelle v. Gamble, 429 US, at 105–106; See also Whitley v. Albers (1986) 475 US 312.) Of course, when police abuse you, they are directly violating an affirmative right under Title 42 Section 1983 and other laws. Your whole argument hinges on whether the police had or took on an affirmative protection duty to you.

• See If The State Assumed An Affirmative Duty To Protect You?

Several higher courts have ruled that a state’s knowledge of “special dangers” posed by a third party to an identified victim gives rise to legal and governmental liability. The State’s willingness or agreement to provide victim protection can create a “special relationship” between the State and the victim.

Because of this, these courts ruled that the Due Process Clause mandated that police departments and their agents render adequate victim protection. (See, e.g., Estate of Bailey by Oare v. County of York (1985) 768 F.2d 503, 510-511; Jensen v. Conrad, (1984) 747 F.2d 185, 190-194, and n. 11 (dicta), cert. Denied, 470 US 1052 (1985); Balistreri v. Pacifica Police Dept. (1986) 855 F.2d 1421, 1425-1426 (CA9 1988); Estate of Gilmore v. BuckleySeventh Circuit’s opinion cert. Denied, 479 US 882 (1986); Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923, 926-927 (CA8 1987); Wideman v. Shallowford Community Hospital, Inc., 826 F.2d 1030, 1034-1037 (CA11 1987).

• Police Officer Discretion Isn’t Absolute
  

Police discretion to stand by while people die or get injured is not an absolute defense. As noted, police must protect people they have placed in danger. Let’s say a cop pulls you over in using his patrol car during heavy traffic and orders you out of your vehicle into an oncoming truck, killing you.

In that case, your survivors could sue the officer for wrongful death under the negligence law theory. Police officers can’t be liable for negligence for failing to show up and protect you. And believe me, our car accident law firm has sued plenty of negligent cops.

Can you think of other ways a police officer could develop a special relationship with someone requiring the officer to protect them? How about if you have a contract with an off-duty cop to provide you with paid protection? Perhaps. He is still a cop, and his department likely knows he works for you.

But you also have directly contracted for itemized protection services. How about a situation when an officer begins CPR but then wants to answer their cell phone as your pulse is coming back?

It sounds like that officer performed an act in furtherance to protect you and decided to abandon you, right? It would be no different than throwing someone a life preserver who fell overboard from your pleasure craft, tugging the line back, and letting the victim drown at sea.

So yes, if the cops are in the act of DIRECTLY assisting you (like returning gunfire and shielding you from bullets), they have assumed a duty to protect you. You can sue if they abandon you!

• No Duty, No Right To Protection?

It will happen at the governor’s, mayor’s, and individual officers’ discretion. We saw it in Washington State as police stood by to let BLM and ANTIFA-inspired looters burn down and pillage businesses, taking over entire city zones by squatting. Even though the police must protect you against an imminent threat, they can decide what a threat is or isn’t.

In Washington, the police knew communists and upstarts in their leftist indigenous zone were beating and even shooting their political enemies. But the police did nothing to protect the citizenry despite this well-known, arguably imminent threat.

Have you heard of anyone suing the Washington or Minnesota cops for letting criminals attack them and torch their property? According to a string of state, federal, and US Supreme Court cases, cases like that get dismissed and affirmed. Most federal judges will dismiss cases such as this sua sponte on their own motion.

• Other Examples Where Police Had No Duty To Protect

Here is an example from 2018 that may shock you. Fifteen students attending Marjory Stoneman Douglas High School filed a lawsuit against Broward County, Florida, city police for failing to protect the school’s children instead of hunkering down, giving the assailant free rein to murder 17 individuals inside.

In that case, the judge declared that local police had zero constitutional duty to protect someone unless they were in police custody. He was a cowardly law enforcement officer, but the Parkland, Florida police force employing him was too afraid of the police union to fire him. After all, according to state and federal district courts and SCOTUS, their officer had no legal obligation to help anyone.

The ruling remains squarely in line with a 2005 Supreme Court decision exonerating police in Colorado for refusing to arrest a violent father who kidnapped his three young daughters in defiance of a court-issued restraining order. The man ultimately murdered his kids during the period their mother repeatedly begged the police station to act.

The case law is clear; even correctional officers and deputies have no duty to protect you from being anally or orally raped in the general population. But you could sue a prison bus driver for negligence in transporting you to Twin Towers jail, for example.

• Police Have Discretion!

Writing for the majority in Castle Rock vs. Gonzales, Justice Antonin Scalia understood that Colorado’s law required the police to arrest restraining order violators. Still, he found that “the well-established tradition of police discretion” will override state law. Officers have discretion.

We already know police must not use coercive powers to harm us. Many legal scholars argue that a “negative constitution” requires the government to guarantee free benefits to citizens, like health care and personal safety.

In the 1989 landmark case of DeShaney v. Winnebago County Department of Social Services, the US Supreme Court found the Due Process Clause was not violated by DSS failing to protect Ms. DeShaney’s son from the coma and traumatic brain injuries caused by Joshua’s dad’s ongoing, known abuse.

The DeShaney decision was recently reaffirmed by the US Supreme Court in 2005, in Castle Rock v. Gonzales, overturning a federal appeals court allowing Jessica Gonzalez the right to sue Castle Rock City after the police refused to arrest her estranged husband, Mr. Simon Gonzales.

She told the police Mr. Gonzales kidnapped her three daughters sired by him, ages 7, 8, and 10. Since he violated a restraining order protecting her and the kids, the state law required law enforcement to arrest Simon at the Denver amusement park where he was using his cell phone.

After Ms. Gonzales begged the police for several hours to rescue her kids, her estranged husband appeared at the police department and began spraying bullets at the police. Later, police found the Gonzales kids’ lifeless remains in Gonzales’ car’s trunk, where they had been during the precinct attack.

Even though Ms. Gonzales’ protective order stated, ” You shall arrest” Mr. Gonzales, she had zero “property interest” under the 14th Amendment’s Due Process clause, which forbids the deprivation of property without due process.

As Cochran had tried in the Denny case, Jessica’s lawyers used procedural Due Process to attempt circumvention of DeShaney’s 1989 stare decisis precedent. But the US Supreme Court felt this, and the DeShaney case was indistinguishable.

Chief Justice Antonin Scalia found that Ms. Gonzales had zero “property interest” in enforcing the restraining order. He also quipped, “Such a right would not resemble any traditional conception of property.”

After reconfirming its earlier DeShaney precedent that the US Constitution guarantees no affirmative police protection, she had no legal recourse rights. This so-called “no duty to protect” rule remains the law of the land.

Fact Check: Did Police Remove Or Change Slogans By Deleting The Word “Protect” From Their Police Cruisers?

These rulings might explain why police agencies started distancing themselves from such an apparently obligatory pronouncement in the late 1970s. Although slogans like “Protect and Serve” or some variation have been painted on police vehicles for years, the Los Angeles Police Department coined the term.

In the past, the LAPD, including LAPD SWAT, led the way in law enforcement techniques, tactics, and traditions. So, it makes sense that patrol cars across America would borrow the idea of an emblazoned police cruiser slogan.

Many municipal police departments removed the words “to protect” from their police cruisers and motto. We have heard that many police chiefs and mayors feared citizens might sue them for “accepting a duty” for declaring they must “protect” you, which is false. 

But the evidence we could find does not support this gossip. It appears some departments are replacing slogans with newer ones, like New York City’s “courtesy, respect, and professionalism.” Furthermore, no police agency’s “oath of office” includes the term “protect and serve, ” at least not in this country.

• Modern Systemic Police Racism 

Modernly, even all black-run city and State police are accused of being systemically racist. No studies exist with evidence showing this to be accurate among the general public. However, it is conceded by most experts that the officer’s mood or temperament and aggressive policy enforcement directives seem to be the reason for most excessive use of force and homicide cases against officers.

For example, New York officers were told to aggressively enforce regulations against selling single cigarettes in public places. After all, the mayor and city council reasoned, Eric Garner, a poor African American, was not paying his sales taxes. “NYPD officers approached Garner on July 17 on suspicion of selling single cigarettes from packs without tax stamps. 

After Garner told the police that he was tired of being harassed and that he was not selling cigarettes, the officers attempted to arrest Garner. . . Garner repeated … “I can’t breathe” 11 times while lying face down on the sidewalk . .  lost consciousness, . . lying on the sidewalk . .  seven minutes . . . pronounced dead at an area hospital approximately one hour later.” -.

This failure to pay a cigarette tax case can be traced to the modern news media allegation accepted as truth by most, that all police forces are systemically racist. This is also where the biased press’s famous slogan, “I can’t breathe,” in the recent George Floyd case (high on crystal meth and Fentanyl), originated.

In Floyd and Garner’s case, the police had ancient discretion not to arrest, but local bosses made clear this policy was necessary for revenue collection in Garner’s case. Unionized police, elected chiefs, and mayors know taxpayers and not bums pay their pensions. Store owners pay local cigarette taxes; homeless street people on drugs don’t.

In Floyd’s case, the officers were correct to arrest the intoxicated, violent felon. But once Floyd was in custody, they had a duty not to suffocate him to death, the same as Garner. In both cases, the police appear to have breached their duty to use reasonable force.

Either way, had Floyd gotten in his van on the lethal doses of drugs he was on and killed bystanders, no one could have sued the police!

Alternatives To Law Enforcement Peace Officers

Some better-off folks receive help with law enforcement issues by seeking security or policing services from private police. A deal with a company like Los Angeles PROFESSIONAL SECURITY Alarm & Video Monitoring would save the city of Los Angeles and its citizens money and eliminate a significant rash of injuries and deaths to taxpayers who do not receive police help.

A company like this could potentially deploy helicopters with rappelling teams trained in military and police tactics to defend private businesses and homes from things like domestic violence at a fraction of the cost less trained government-loyal LAPD officers could.

• Employment Disability Laws

Citizens Are Lying To Get Police Help?

It has gotten so bad! “Some agencies have reported that on busy nights, some citizens have had to wait up to two hours for officers to respond to non-emergency calls. In response, citizens with non-emergencies have been telling 9-1-1 operators that a gun or serious crime has occurred to obtain faster police response times!

And “…in many cities response time is still considered the key test of a police department’s effectiveness.”‘ (Source).

As red states begin turning blue, defunding their police, and crimes of violence skyrocket, don’t expect the few police remaining nearby to provide you with police protection. However, you can ask for help from your state legislature since several states retained their colonial police powers under our glorious Constitution.

Perhaps we should pass laws guaranteeing police protection or better firearms training laws, coupled with an easing in firearms restrictions on those few people wishing to protect themselves from harm.

Conclusion:

Though you may find it alarming, we maintain no affirmative right to police aid, even a helpless woman or child facing imminent danger relying on mandatory arrest statutes as in Delaney. The Supreme Court reminds us we all remain responsible for our safety, the main reason firearms rights activists expose the hypocrisy of ridiculous gun control ideas proffered by “the nanny state.”

The United States Constitution does not require police to protect you from an individual attacker. This has remained an unwavering rule since ancient common law history and won’t change anytime soon.

Michael Ehline is the lead counsel for the California personal injury law firm Ehline Law. In addition to being a world-famous cruise ship accident attorney, Ehline helps military motorcyclists recover money for on- and off-base car accidents.

He is a lobbyist for better transportation safety laws, legal researcher, inactive U.S. Marine, and journalist. Michael’s opinions, fact check, or legal team do not always reflect the views of the Ehline Law Firm, its wounded clients, or employees, including paralegals and receptionists.

We have provided this educational article for general information purposes only. We intended nothing here to be taken as legal advice because it’s not. Please reach out if you would like to request a free consultation from Mr. Ehline.

Citations:

• Can I Run Over BLM Marxists With My Car?

Understanding the Law of Nullification

First, this post is not legal advice at the outset. I am not trying to teach people how to get out of jury duty or stay on a jury; I am merely pointing out my opinions and conclusions. But for one, I do believe it’s kosher for a jury to determine the law and the facts ultimately.

I also think a court’s job is vital. However, its role merely guides the arbiters of justice (the Jury). My opinions should not guide you in your decision to understand the law and keep it well.

So, What is Jury Nullification?

This definition is a great question and a great place to start. Why? Because this terminology can mean many things to many people, it must be more thoroughly understood. It encompasses many items, as will be explained.

In summary, jury nullification is defined as a juror’s right and duty to ignore or not enforce what it considers an unjust law. However, it also deals with a juror’s role in finding a court’s misapplication of a just law. Some have called this a juror’s “pardoning power.”

It is typically used in criminal matters. For example, jury nullification may happen when a jury is convinced beyond a reasonable doubt of a defendant’s guilt in a criminal case. However, despite the evidence, the Jury votes to acquit them of the charges anyway. (Recent examples may include the O.J. Simpson criminal case.)

But then again, under this procedure, the Jury could try and vote to convict a person even though it’s not sure of guilt or innocence. But at least in that last example, if the evidence fails to support a conviction, judges may still direct a verdict of acquittal.

Can a Jury Nullify a Personal Injury Case?

Perhaps. But let’s compare and contrast a bit. In a criminal case, if a jury returns an acquittal, then generally, it’s game over. Neither the Court nor the prosecutor is allowed to appeal a criminal acquittal.

Question: What about personal injury matters? Can a jury also nullify a civil case?

Answer: Jury nullification may also occur in personal injury law questions.

For example, the verdict is “generally a finding of liability or lack of accountability (rather than a finding of guilty or not guilty).” (See Lars Noah, “Civil Jury Nullification,” Iowa Law Review 86 (2001): 1601.). Many examples of jury nullification exist in both civil and criminal matters.

Furthermore, the Seventh Amendment protects and recognizes the pre-existing Natural rights of the Jury.

“…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law.”

It appears well-settled that jury nullification is a right and even a duty. After all, a juror must be the “conscience of the community.” (Source.)

Why Nullify in a Personal Injury Case?

First, it is easy to foresee why a juror would want to nullify a bad law in a civil or criminal case. A personal injury case is unique because a jury could hate both the defendant and the plaintiff. A nullifying jury  use all strategies to derail the economic recovery, but the Jury could still simultaneously dislike the defendant. Get it?

What are the significant reasons why nullification can become a duty in a civil or criminal matter?

After the German Race laws were passed, Nazis targeted Jews with jail and wealth confiscation. Look at how the German Jews had their private property confiscated in pre-World War II Germany.

Antisemitism and the persecution of Jews represented a central tenet of Nazi ideology. In their 25-point Party Program, published in 1920, Nazi party members publicly declared their intention to segregate Jews from “Aryan” society and to abrogate Jews’ political, legal, and civil rights. (Source).

Had I been a juror, I would not have convicted a Jew who had failed to yield their property or civil rights to the state. Would you have done so?

What if a criminal law was passed called the “White Privilege Law” that whites had to give up their property to pay reparations to the descendants of enslaved Africans? Would you convict a white person for refusing to turn over their property?

Laws are often passed that discriminate against or help people, for example. Politically driven excuses are used to suppose how people gained their fortunes. Then, a law is passed to tax them higher or lower depending on party affiliation. The masses quickly erode the rights of the gifted individual.

Personal injury lawyers have received favor in the tax code, for example. Hollywood has received exemptions from California’s gun laws. So, film studios can even use and own fully automatic weapons. But ordinary citizens may not.

And it makes sense. After all, trial lawyers are enormous D.C. lobbyists. The studios also control the news and what is seen and heard thereon. But so is the insurance lobby and so forth. So, all sides seem to benefit based upon who donates to who’s re-election bid.

Is there A Fundamental Unfairness To Plaintiffs In Personal Injury Cases?

Some argue that insurance companies get a pass from the courts and legislature in personal injury cases. The jury instructions make clear that no one can mention insurance or how much coverage is at issue.

We all know that California law requires us to carry mandatory minimum liability insurance. However, we are not allowed to consider whether or not insurance coverage exists in a motor vehicle accident case.

So, if a defendant appears poor, a jury could be swayed into finding against the plaintiff. Or, for example, they could award the aggrieved party peanuts. How is this fair? It’s great for the insurance company and shareholders.

But it can kill the plaintiff’s case. So, for example, if I were on a jury, I would demand to know how much insurance coverage is at issue. Sure, you don’t want to place the defendant in the poor house, but you also want to award the plaintiff for pain, suffering, and particular and general damages. You want to do justice.

I, for one, would want to do my independent investigation if the Court refused to disclose the existence or nonexistence of the insurance policy in question. So, what does this have to do with nullification? Well, it doesn’t. Jury nullification does not give the juror a right to violate his oath under penalty of perjury. What does this mean to you?

First, you have to level with the Court before being sworn in. Can you not agree to a thing that goes against your conscience?

Jury Nullification May Not Be Used if a Juror Has Sworn an Oath Not to Use it.

• Can I be Punished for Nullifying a Verdict?

The only example I could find that allowed a judge or prosecutor to take vengeance on a juror potentially is the Laura Kriho matter. In that case, Kriho was the sole juror refusing to convict based upon the interests of justice. It was a drug-related case called People v. Brannon, which took place in Colorado. Juror Kriho was eventually charged with three counts of contempt of Court.

A whistle-blowing fellow juror on the panel sent a secret communication to the Gilpin County District Court Trial Judge, Kenneth Barnhill. The communication alleged that Kriho complained about the accused’s unfair potential jail time while deliberating. So, the sell-out juror asked the Court to bring in an alternate juror. Since the Court had previously dismissed the alternates, the Court called for a mistrial instead.

But the trial court was not done with Kriho—not even close. So, apparently, a message had to be sent to the jury pool.

W Contempt Charges in Kriho?

Kriho was eventually prosecuted for:

1. Not volunteering information never sought during voir dire (e.g., that Kriho silently reserved her right to nullify an unjust law),
2. Telling fellow jurors that her knowledge that potential punishment meant a conviction was likely wrongful and
3. Attempting to convince other jurors to cancel a charge that carried a criminal sentence against the defendant.

Many courts use this case to convince jurors they may only decide matters of fact. However, an educated jurist who knows the situation would know that the second and third charges were ultimately withdrawn. In other words, the Court did not rule on nullification! And there was no punishment, either.

The Remaining Sole Charge Was Reversed on Appeal in Kriho

Amazingly, Kriho was convicted for failing to volunteer info, EVEN THOUGH SHE WAS NEVER ASKED to do so. (Clearly, that Jury followed the law as stated by the Court.). That sole conviction on that remaining count against Kriho was reversed in 1999 on appeal! The appeals court rightly thought it absurd that a jury must read minds and volunteer info.

Accordingly, FIJA reported:

“You have to go back to [the trial of William Penn in] 1670 to find a case in which the judge tried to punish jurors for returning a verdict he didn’t like.“

Since the Kriho case, I have found just one case in which a juror faced a severe possibility of being punished for her verdict—the 2005 prosecution of juror Carol Asher.

Unlike Kriho, Asher had a split jury, which resulted in a mistrial. The jury foreman ratted to the judge about Asher’s comments during deliberations. Also, unlike Kriho, three other jurors believed the defendant was not guilty. But only Asher was punished for felony perjury.

In that However,e, Asher was at risk for a 14-year prison term for “lying.” But Asher never made it to trial. Instead, an evidentiary hearing was held in 2006. And there, the entire case went away. Asher learned the same lesson as Kriho.

Standing up for your rights means paying legal fees and risking prison. This truth is the clear message these two jurors received.

The Kleinman Case.

Next, we have the Kleinman case. The criminally accused was the defendant. Now, in Kleinman, a trial court told a jury that it would violate the law if it ignored the trial court’s interpretation of the law. But the left-leaning 9th Circuit even agreed this went too far, stating:

“The court’s statement that the jury ‘would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case,’ may imply punishment for nullification, because ‘violate your oath and the law,’ coming from the court in a criminal trial, could be understood as warning of a possible violation with associated sanctions. Additionally, the statement that ‘[t]here is no such thing as valid jury nullification’ could reasonably be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise. Judges tell juries: follow the law. But the statement there is no valid jury nullification misstates the role of nullification. This is because an acquittal is valid, even if it resulted from nullification.” [Emphasis.]

But this was an irrelevant, harmless error to misadvise a jury regarding their rights. As expected, the 9th rejected Kleinman’s argument that the erroneous jury instruction required reversal of his conviction.

See the BELOW ERRONEOUS Jury INSTRUCTION

“It is not fundamentally unfair for a defendant to be tried by a jury that is not fully informed of the power to nullify,” the court said, “or even that is stripped of the power to nullify, because there is no right to nullification. Although a jury should not be led to believe that jury nullification will result in punishment or an invalid acquittal, the court’s misstatement by implication does not rise to the level of denial of Kleinman’s due process rights.”

Wow. Did you see that? The courts are saying, yes, we have a right to nullify. However, a trial court can issue a false statement of law to a jury that nullification is illegal, which will not require reversing a conviction. We are all presumed to know the law.

What If I Want to Remain on a Jury and Exercise the Right of Jury Nullification?

For example, automatic exclusion can occur if you are a member of the ACLU, Libertarian Party, or any number of marijuana rights organizations. So, for the measure, an NRA member may get tossed in a gun possession case.

Here is an example of a wrongful death personal injury case. An anti-gun jury may decide, even though it was self-defense, that the defendant must still pay for merely owning a gun.

Must I Volunteer I Support Jury Nullification?

It depends. If you are an officer of the Court who has written many treatises and articles supporting this right, it will make sense that you do not withhold this fact from the Court. Don’t fail to volunteer information, lol.

In the same way, a citizen who has touched on these issues online or on social sites may also not want to withhold this information. Often, jurors are subject to investigation by all sides and the Court.

Yes, respond to the questions in a yes or no, I don’t know, type of way. Less is more. The Court has many people to interview. Move along. So long as you have no religious views or philosophy preventing you from doing justice, you should be OK to serve. If you agree that everyone deserves a fair trial regardless of the law, you should be OK with fitting the panel.

Also, can you convict even if you disagree with a bad law? Yes, you can be capable of that. But courts consider each separately. After this, it makes sense to silence your opinions on nullification.

But What About Promises Under Oath?

Making a promise under oath means you must keep it. But what if you are forced to swear an oath to ONLY judge the facts? What if that juror claims to let the Court decipher the law? If a juror says he “can” uphold a law he disagrees with, he is not lying. But he could be a perjurer if he promises to judge the facts only when he intends to be the judge of both.

Did I swear not to exercise my right To decide issues of law?

If you got on a Los Angeles jury, you may or may not have surrendered your right to be the community’s conscience when you swore to allow the Court to be the sole decider of the law. And nullifying unconscionable laws could expose you to prosecution.

It is not because they exercised their rights per se. It is because they swore an oath not to use their freedom. Is that wild, or what? As mentioned above, failure to use jury nullification was the International Court’s basis for convicting accused Nazis of war crimes after WWII.

The Court reasoned that civilians and soldiers must ignore, interpret, and fight against an unjust law. Hence, despite swearing an oath, low and high-level soldiers could not argue they were “following orders“ when they killed innocent civilians and prisoners of war, etc.

What Other Examples of Why You Would Use Nullification in a Personal Injury Case?

• Medical Malpractice (Read more.).
• Comparative Negligence Issues (Jurors may or may not apportion fault, for example, or they may apportion more significant blame if they think it is unjust that a plaintiff gets too much money).
• Reserved. So many times, nullification could be appropriate; I invite you to comment below.

What are some other examples of using jury nullification?

• Statutory Rape Laws (An underaged female sexually assaults an adult male, and he faces rape charges = unjust to apply the law (See, e.g., State v. Morse 281 Minn. 378, 161 N.W. 2d 699, (1968).).
• Gun Laws (A man in California arrested for having a cartridge magazine in his pistol with more than ten rounds in the magazine = unjust as a magazine is a primary component of a firearm. And the number of rounds in a magazine directly affects a citizen’s ability to defend home and heart.).
• Race Laws (Fredrick Douglas and other white abolitionists were fierce supporters of jury nullification and an armed citizenry.).
• Euthanasia Laws (Where a terminally ill patient wanted a mercy killing, prosecutors have no choice but to bring charges against the doctor.)
• Marijuana Laws.
• Prohibition Laws.

What are Some More Famous Jury Nullification Examples and Explanations?

In “flagrant” cases, according to the Court, “the jury has always exercised the pardoning power, notwithstanding the law, which is their actual prerogative.“ (Local 36 of Int’ l Fishermen & Allied Workers of America v. United States, 177 F.2d 320 (9th Cor. 1949).) Lysander Spooner, the author of Trial by Jury 1852, pointed out that “governments cannot decide the law or exercise authority over jurors (the People) for such would be absolute government, absolute despotism.”

In conclusion, the Jury has to know the law and the means to enforce it. The rights you fail to claim become waived.

And falling into the trap of swearing not to exercise the right places a juror at risk not for exercising the right, but instead, the juror is at risk for perjury. The soltion is to avoid poisoning the other jurors. It appears it is unwise to tip off fellow jurors regarding their rights.

Do Not Surrender Oaths

So the smart move is to request a sidebar, approach when directed, and instruct the Court that you plan to exercise the right to decide the law and the facts as justice dictates. But what if a judge asks: “You’ll follow the law as I instruct it, right?” What if you feel intimidated?

You are merely informing the Court that you cannot take an omerely informight as you know it.

An intelligent judge may present a hypothetical and ask if you would follow the law under that example. It offers an incomplete hypothetical and would preserve my right to decide the law and the facts as I see fit.

The bottom line is that all free men and women have the right to decide the law and the facts in personal injury and criminal matters. Our public servants are no more intelligent than any of us. Many of them are too bright for their excellence.

You, the citizen, are the last line in defense of freedom. Use our online website contact form or telephone us today for a free consultation about any personal injury claim or procedural issue you face, including jury nullification laws, risks, and liberties.