First Circuit to Police: Are You Stupid or Malicious?
March 3, 2017 (Fault Lines)– The First Circuit Court of Appeals recently vacated the dismissal of a case that poses the question: can a police department that does everything in its power to get you murdered be sued for it?
That, unfortunately, was the case for Brittany Irish. According to her complaint, she had been in a relationship with Anthony Lord, a registered sex offender with some impulse control problems. That went sour around 2011, and she wound up getting a protective order. By 2015, the two were back on speaking terms, but Lord began threatening and harassing her.
She went to the police, who shrugged and told her to get another protective order. Mind you, Lord is a registered sex offender. The whole “point” of the list (according to legislators who swear it’s not punitive) is that it’s supposed to keep everyone safe by keeping the offender on law enforcement’s radar. But when a woman came to police to report that things had taken an awkward and dangerous turn, the best response they could offer was self-help.
Then, things got a bit worse.
According to the complaint, Lord agreed to meet Irish to have a talk, then abducted her, strangled her, raped her, and then threatened to kill her. He even added the traditional rape/strangle/threaten postscript, when he told her that if she reported the crime to police, he would definitely kill her.
Irish wasn’t cowed, and got a rape kit test at a local hospital. Her local police department claimed it didn’t have jurisdiction over the crime because it happened in two counties and told her to go talk to state police, who requested a written statement.
At this point, Irish really wanted Lord in jail so she could be safe. If there wasn’t enough evidence yet to make an arrest, she offered to wear a wire and get Lord to admit to the abduction. But the department told her that they don’t do things that way. Instead, they offered to call him and get “his side of the story.” Hoping not to be brutally murdered, Irish asked police not to call the man who said he’d kill her if she talked to police and tell him that she talked to police.
On the other hand, investigating a rape and abduction is an awful lot like work. If they brought Lord down to the station, maybe he’d just confess or explain away the problem. But if they went into all this business with wires and talking to witnesses and checking hospital records, they might wind up finding a problem with the case and have done all that investigation for nothing. Better not chance it.
So, probably minutes after Irish left, the officers called Lord. Two hours later, Irish’s barn was on fire. A friend called her and said that Lord had gotten a voicemail from police, and apparently reading from a short book of ominous quotes, muttered that “someone is going to die tonight.”
Okay, the officers made a mistake. They called someone they probably shouldn’t have called, and now Irish had reason to believe he was out to kill her. But now they could step in. Irish asked if they could guard her family.
But, y’know, guarding a family is a lot of work. And it eats up overtime hours. And more likely than not, nothing bad is going to happen anyway. Better not chance it. They told her that they couldn’t spare the manpower.
Irish’s mother had another suggestion: maybe just leave a squad car by the house, empty, so it looks like the family is protected. That might be enough to keep Lord from murdering them.
But, well, cars are valuable. And the department really did need every one they had. No dice. But they did offer to “keep an eye on the situation.” That must have been tremendously reassuring.
That night, Lord kept his promise. He broke into Irish’s house and shot her boyfriend, killing him. He shot her mother, seriously wounding her. He abducted Irish and got into a shootout with police. He managed to kill someone else before taking Irish to his uncle’s house, where police eventually recovered him without further casualties. By the time Irish was released, Lord had killed two people and wounded four.
Now, one would hope that suing the State of Maine at this point would be a slam dunk. After all, it had taken several steps that directly endangered Irish, and had done almost nothing to protect her or her family. But. in 2005, the Supreme Court held that, because police officers have discretion to decide how they will enforce the law, they can virtually never be sued for failing to protect you – this, in a case where a town’s failure to enforce a restraining order led to the death of a woman’s three daughters at the hands of her murderous ex-husband. You simply don’t have a property right in the police’s protection under the Constitution, even if you spend your whole life paying taxes in the hope that that protection will arrive. Under the law as is, a police officer who holds up a finger and finishes his hot dog while you are stabbed to death with a sharpened toothbrush might face professional consequences, but he is probably immune from suit.
So the federal trial court saw the complaint from Irish and saw it as a pretty straightforward dismissal. If the police had no duty to protect her, then she couldn’t sue them for not protecting her. The First Circuit saw things a little differently:
What we do question, however, is whether there are standard police protocols that were violated when the officers decided not to be present when they alerted Lord to Irish’s allegations but instead opted to leave Lord a voice message on his phone — notwithstanding Irish’s specific warning that such notification would “incite Lord to terrible violence.” Assuming the voice message was left on Lord’s cell phone, it is likely that he received immediate notification and was left free to immediately do violence.
Citing two cases where police officers had accidentally shot unarmed civilians due to massive personal incompetence, the First Circuit suggested that if the officers went beyond just not protecting Irish and instead took actions that endangered her, she might have a shot of getting to trial. But to get to that point, she’d have to put more facts on the record. It is still possible that Irish won’t be able to sue if, for instance, it turns out that police actually took some steps to protect her or they followed a protocol for dealing with these situations that had some thought put into it. But further discovery sure beats a dismissal.
These officers probably weren’t malicious. They probably thought that nothing bad would happen if they called Lord. But it’s hard not to hope that their lawyer is as laid back about his job as they were.