Thursday, June 30, 2005

Protecting our rights: Castle Rock vs. Gonzales

It is usually thought that a proper function of government is to protect our rights. Most of us might visualize this as government officials -- police officers, say -- taking actual measures -- arresting a criminal, say -- to prevent actual violations of our own personal rights to life, liberty, and property. In some cases this indeed is what happens, and certainly it's a staple of television fiction. We are not wrong to believe that government may well defend our personal, individual rights.

Where we may go wrong is in assuming that this is actually the duty of government, or worse yet, that government is bound by law to protect us -- at least under American law. As the courts have repeatedly observed, individuals have no such right or entitlement to protection; from the legal standpoint, protection of our individual rights is not mandatory.

The latest decision in this regard is the SCOTUS ruling in Castle Rock vs. Gonzales. The story is nightmarish -- a woman repeatedly telephoned and visited a police station to report that her estranged husband had taken their three daughters, in violation of a restraining order, and even reported to them where he had apparently taken them. The police repeatedly dismissed her and failed to take any action. Subsequently the husband murdered the three girls and committed sucide by attacking the police station.

The mother then sued the city for failing to enforce the restraining order. She claimed a that she held a right to have the restraining order enforced, particularly since the order included a note to police that "You shall use every reasonable means to enforce this restraining order. You shall arrest...or seek a warrant for the arrest of the restrained person when you have any information amounting to proabable cause that the restrained person has violated or attempted to violate this order..."

The Supreme Court ruled, 7-2, that Mrs. Gonzales had no "entitlement" to police enforcement of the restraining order. The words of the dissenting justices, Stevens and Ginsburg, are particularly interesting: "It is perfectly clear, on the one hand, that neither the Federal Consititution nor any federal statute granted respondent or her children any individual entitlement to police protection."

They go on to develop other arguments as to why the Gonzales suit may have had merit, but the point is clear -- all nine justices agreed that the state has no duty to protect the rights of any individual citizen from violation by third parties, something the courts have consistently ruled over the years. If, for example, a criminal invades your home and victimizes you, and you are able to call the police, the police have no legal obligation to come to your aid. They generally will, but if they do not -- as in the case of two women who were repeatedly raped over the course of a twelve hour ordeal, and who were able to telephone police repeatedly over the period -- the police are perfectly within their rights.

Who then is * personally responsible* for defense of your rights?

You are -- not as a *last* resort -- as an *only* resort. The responsibility for defending our rights lies within each of us. The court rulings may make no sense to most of us (how else to understand that the entire federal system is established to scure our "common defense" and "blessings of liberty"), but the courts are consistent -- we have no "entitlement" to police protection.

Actually, this may not be so crazy -- although it doesn't seem to be the point made by the courts, since ultimate authority rests in us individuals, "the people," so too does ultimate responsibility -- for defense of our own rights, and those of our fellow human beings. Contrary to what advocates of a disarmed public say, it is *not* the responsibility of the police to protect us. It is our own responsibility, and we each ought to arm ourselves with the knowledge and tools to do so.

Meanwhile, we ought also to work to have malpractice laws extended to government agencies. If the police aren't there to defend actual individual rights, then they should be.

Speaking strictly in normative terms, yes there is no entitlement to protection. But if a citizen is paying for protection from an agent (taxes to police in this case) isn't that agent contractually bound to fulfill their duties? Especially since this agent, through restrictive firearms laws, is often proving inimical to individual defense.
As a matter of U.S. law, I believe that the answer is no, gov't agents are not contractually bound to fulfill their duties -- or at least in most cases citizens cannot sue gov't officials for such failure.

But the point here is something quite different: courts have consistently and clearly ruled that the state has no duty to provide police protection to any particular citizen. I think few people are aware of this.

It makes no sense to me either; and as you point out, in many places gov'ts add injury to this insult by then depriving the citizen of her/his rights to self-defense.
I was going to pose the same question as Brian, but considering it's already been answered, I've thought of something else.

But the point here is something quite different: courts have consistently and clearly ruled that the state has no duty to provide police protection to any particular citizen. I think few people are aware of this.

I certainly was not aware of this until today. This seems grotesquely unjust. What philosophy, then, is guiding the appropriation of our taxes to the police? Or what guides their responses? If it was an issue of triage, and they had other duties that they absolutely had to execute at the time, then it makes sense. But it's difficult to imagine, with the benefit of hindsight, police officers sitting in the station as this man killed his three daughters.

I assume this doesn't apply to firemen, since there is no right to property, yes?
What guides the appropriation of our taxes to the police? I understand it to be to provide for common public defense, which (supposedly) does not imply that a citizen has a right to protection in any particular instance.

Police tend to render such protection anyway. More than once I have had occasion to rely on law enforcement oficers and in every case they quickly and willingly provided me with exactly the sort of help I expected -- but they were under no legal obligation to do so (unless there was a particular state or local rule I'm unaware of).

I'll have to look up the cite, but there was indeed a case in which several women were held prisoner and repeatedly raped for over 12 hours -- over which time they had intermittent access to a phone and repeatedly pled (futilely) with the police for help. The courts ruled that the police had no legal obligation to render assistance. I do not recall whether this case made it to SCOTUS or was refused as groundless.
Good question regarding fire departments -- I've never heard of such a case involving them, but I'd suppose that the principle is the same.
I admit I not only do disagree, but find it totally absurd!
I have always considered cases when police denies citizens protection and lets them "defend themselves" (i.e. strongest and most unscrupulous thugs terrorizing everybody else) - a sure indicator of failed state.
If police are not obliged to enforce restriction orders, why are such orders issued in the first place?
Possibly to serve the victims to wipe their blood from beatings, or the abusers to wipe their asses.
Sorry for my language, I hope you get my point.
Better introduce Sharia, then every woman will at least know she must be submissive and endure beatings and let her abusive husband (or anyone else who is stronger) do with her and her children whatever he wishes.
But to lure the weak into thinking they have the state's protection, and then deny that protection - I find this incomprehensible.
I would also wish to add that you are doing good job in discussing these matters on your blog. It is sad that they are not widely known outside the USA. If they were, some prospective emigrants to the USA would probably prefer to remain in their home countries, or to return there before it became too late.
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