June 3, 2022 | Reading Time: 5 minutes

Thanks to the US Supreme Court, Uvalde police were not required by law to save those kids

We should not accept such rulings. 

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Recent tragic mass shootings are drawing attention (again) to a lot of societal problems we could fix if we wanted to but instead prioritize white supremacy, sexism, and gun culture.

Last week, I wrote about the radicalization of young men and the way gun manufacturers prey on this to sell guns to men under 21. Mass shootings have become so common I had cause to write an article explaining the link between domestic violence and mass shootings a year ago. The police response to the Uvalde tragedy is drawing attention to a newer conversation – without gun-law reform or better domestic violence response, can’t we at least rely on police to serve and protect? 

According to the Supreme Court, no.

Cops don’t have to do their jobs
We know the Uvalde shooter wasn’t stopped by a police officer outside the school before entering. We know the first 911 call occurred before he even entered the building. We know students kept calling. And we know it took an hour and 20 minutes for police to kill the shooter and stop the rampage. 

Nearly 20 officers waited in the hallway outside the classroom in which the shooter was killing students and teachers. Outside the school, more police officers prevented parents from entering and ignore their desperate pleas. 

Legal scholar Carl Rizzi argues the public duty doctrine should assume a “special relationship” between police and students. That would require intervention as schools are “gun-free zones.” 

The local law enforcement delayed Border Patrol agents from entering – telling them to wait. Eventually, the Border Patrol team got a janitor to unlock the classroom door. Then they took down the shooter. I never thought I’d agree with Border Patrol but apparently local cops were so derelict I’m forced to.

Considering a school district police officer was on the scene before the shooter even entered the school, why did it take so long to end the shooting? Since police officers have stopped cooperating, and have offered contradictory information, we will probably never know. Sadder is the reasons don’t matter. 

The law doesn’t require cops to protect the public.

Cops have “no specific legal duty to individuals”
Much of the case law we have on a police officers’ ostensible duty to protect comes from domestic abuse or sexual violence cases. In 1981, in Warren v. District of Columbia, the DC Court of Appeals ruled police officers had a general duty to protect the public but had no specific legal duty to individuals. 

The women who had called police on account of intruders being in their houses, and then spending the next 14 hours being raped, weren’t owed the specific duty of police officers to protect them. The “Public Duty Doctrine,” or “Duty to Rescue,” only applies when there is a “special relationship.” 

In 1989, in Deshaney v. Winnebago County, the Supreme Court ruled a state government agency (in this case the Department of Social Services) didn’t violate a child’s right to liberty by failing to protect him from his father’s abuse. While we can’t expect social workers to be psychic, in this case there were repeated police and social services reports of child abuse that only resulted in more social worker visits to report more child abuse.

In a 6-3 decision, the Supreme Court ruled that the due process clause of the 14th Amendment only protects against actions by the state – not actions by private individuals (in this case, the abusive father). So a state agency could not be held responsible for not intervening in the actions of a private individual. The majority opinion argued that the state’s “affirmative duty to protect” only arises if a person is in the state’s custody.

In 2005, in Castle Rock v. Gonzalez, the Supreme Court relied on this precedent when it ruled that police have no duty to protect (or arrest or intervene) even when there is a protective order in place or a law mandating arrest if the abuser violates the order. 

In their dissenting opinion, Justices John Paul Stevens and Ruth Bader Ginsburg said, “it is clear that the elimination of police discretion was integral to Colorado and its fellow states’ solution to the problem of underenforcement in domestic violence cases.” Is it okay if police use their discretion with arrest warrants? Or only if it involves domestic violence?

A good precedent exists
However, four years before Deshaney, a US district court ruled differently and argued that if police routinely ignore protective orders in domestic violence cases, the result amounts to discrimination in Thurman v. City of Torrington

While the Supreme Court cases are obviously the controlling law, it’s important to note that this precedent does exist and that many states, including Connecticut, have mandatory arrest laws for domestic violence. Sure, the Supreme Court won’t enforce them, but maybe a few officers will listen anyway.

There are instances when we do require people to intervene in order to warn, protect or rescue, but rarely are those people police officers. In 1976, in Tarasoff v. Regents of University of California, the Supreme Court of California ruled that mental health professionals have a “duty to protect” people who are being threatened with harm by a patient. Therapists can notify the police or the intended victim to discharge this duty. 

As of 2014, 27 states had a mandatory duty to warn statute and nine other states allow mental health professionals to break privilege to warn possible victims. Of course, if police don’t follow up on the warnings, this law doesn’t do much good. 

In 2014, Elliot Rodgers sent his therapist a manifesto before killing six people and himself. His therapist called his family who begged police to check on him. Since cops didn’t search his room, they didn’t see any criteria to commit him or intervene.

Survivors of a school massacre already unsuccessfully tried to sue police for not acting after the Parkland shooting. A US district judge ruled that neither the police nor the sheriff’s deputies had a duty to protect the students from the shooter because the students were not in the state’s custody. 

A way forward
However, a similar lawsuit against the school cop, Scot Peterson, for staying outside while the shooter killed 17 people in the school is proceeding to trial and has survived multiple motions to dismiss. The lawsuit argues that Peterson was in the role of a “caregiver” and so had a “special relationship” to act.

We should not accept earlier rulings that police have no duty to protect us, especially as they continue to receive bloated budgets. In the case of police action in Uvalde, there are many possible legal strategies by which to hold them accountable. 

Legal scholar Carl Rizzi argues the public duty doctrine should assume a “special relationship” between police and students. That would require intervention as schools are “gun-free zones.” 

Additionally, in Uvalde, police began to “rescue” students and then stopped. They also prevented others from intervening. That could have created conditions for a duty to rescue. 

While we may not be able to force police to care about domestic violence, we should at least require officers on school grounds to intervene when a shooter starts to kill children. 

Isn’t that the definition of a caregiver required to act?

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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