On charging do nothing cops…

When I was teaching law in the police academy, I used to throw out this hypothetical.

Let’s say that I was in my police uniform, on duty, and I was walking into a convenience store to get myself a drink when I see a man beating the crap out of a woman near the soda fountain machines.

He’s punching her with all his might, and as I approach, he stops and I say, “excuse me, I need to get to the cups over there,” and then I proceed to fill my cup with soda and walk out the door, ignoring the crying woman’s pleas for help.

Am I liable to this woman for not helping her?

The answer, as with most things law related in policing, is somewhere between yes and no, but closer to no.

Am I a terrible human being for not helping?

Yes.

Am I a terrible cop for not helping?

Absolutely.

Should I be terminated from my job as a cop?

Unequivocally, yes.

Should I be charged criminally, if the beating continues and she ends up dead?

No.

It is fairly settled law in most places that nobody owes another person a single iota of assistance unless there are extenuating circumstances. We very seldom charge people criminally for failing to do something, and when we do, there must be a basis in law to do so.

That basis may exist in the form of a criminal statute, such as a law that requires us to pay taxes.

That basis may exist in the form of a relationship that gives rise to what the law calls a duty of care. As an example, if one of my neighbor’s children comes to my house everyday asking for food, and I never give him a morsel, and instead I shoe him away, even noticing that he’s getting thinner and thinner each time, it’s not my fault or problem, legally, if that kid starves to death. That same child’s mother or father or other guardian, on the other hand, does have a legal duty to care for and nourish that child, and so the law has no issue with charging them with neglect or abuse or whatever the law allows.

Other extensions of that duty arising are a bit murkier, but don’t necessarily require a familial relationship.

A few months ago, a woman who had been stabbed by an acquaintance on a nearby highway made her way to the front porch of a nearby house and banged on the door, waking a couple who lived at the house. The couple saw her on their porch, and did nothing to help her out, outside of calling 911. One of the couple was a nurse. The woman eventually died from her injuries.

Even assuming that offering this woman aid would have saved her life, there is no chance that criminal charges would be brought against this couple, even if they didn’t call 911.

But, let’s assume the same facts, but instead, the couple drags the woman, still alive, off of the porch and into the backyard, so she wouldn’t get blood all over their front porch. If it could be reasonably assumed that moving her body made it unlikely that she would be found by another person, and that the woman wouldn’t be able to have moved herself to find help, then the couple could now find themselves facing criminal charges.

Even police officers don’t have a special relationship with the public that gives rise to any duty of care, for the most part, so police officers don’t have any liability when somebody is injured or killed and they could have done something about it.

This duty of care would arise though, if an officer arrests somebody and puts them in handcuffs, because now that person is at the mercy of the officer and is vulnerable because of the officer’s actions (the arrest). There are other situations where a duty arises between police and the public as well, such as when a dispatcher says police are coming and people rely on that message. If the police don’t show up and something happens, then there could potentially be liability.

Civil liability.

Criminal liability for police inaction is a stretch, even for a terrible situation like the Parkland School shooting.

News this week that the police deputy, Scot Peterson, who didn’t run into the building while students were being murdered by a former student, is being charged with crimes that could cost him nearly a hundred years in prison, got to me.

It’s one thing to hold officers accountable for their intentional actions, when those actions cross a clear line and lead to injury or death, but to punish officers for inaction criminally is opening a can of worms that will make it nearly impossible for already struggling departments to find people willing to do this thankless job.

I completely understand the anger and hurt of the parents of students killed or injured during this shooting, but the reality is that there is no way to know that this officer would have saved even a single life had he ran into that building.

While student safety is a component of the job, the position of school resource officer is one of community engagement, and many who work these positions are filled by officers who, quite frankly, aren’t necessarily wanting to do “police work” anymore for various reasons.

These aren’t SWAT officers trained in clearing buildings or squashing volatile, violent encounters. They are there to make nice with the kids and hopefully be a preventative influence against drugs or fights or the usual school related problems. The idea that a single school resource officer would always be able to stop a person with the advantage of knowing what his plan is and who is armed with assault rifles and God knows what else, is misguided.

These Florida legislators, prosecutors and sheriffs looking to extract a pound of flesh anywhere they can is ridiculous. They’re out for blood and taking it out on an essentially innocent, though clearly unpopular, bystander.

The shooter is the problem.

He is the bad guy.

This nonsense of charging the police officer detracts from that fact.

It also detracts from the fact that this deputy, if he’s like most officers these days, hasn’t been adequately trained in how to respond to such an incident.

Not enough anyway.

Training, training, training….It’s expensive, and it has been cut out of many police budgets completely, or shifted towards something else, usually more popular with the issue of the day.

While there is never enough training on gun violence or defensive tactics, departments always seem to find money to fund training on how to be sensitive or more politically correct to certain segments of society.

These things are important for sure, but so is knowing what to do in extraordinary, violent situations.

They become extremely important, if decades of jail time is the result for the officer who screws it up.

Police officers work best when they aren’t using their brains. Like athletes, muscle memory is our friend in high stakes situations, and clearly, this man didn’t have it ingrained in his police dna to run into that building.

I think most cops do now, like these guys.

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These officers are running towards a gunman while college students are running away.

I bet they’re not even thinking about what they’re doing, they’re just doing it.

This is absolutely what we want to see from our cops, and I get that, but when that doesn’t happen, it can’t suddenly be criminal because we’re angry and need a scapegoat.

Florida is trying to use the child abuse/neglect statute to criminally charge this police officer. That I’m aware, this has never been done and is a complete stab in the dark effort to apply the criminal law where it wasn’t meant to reach.

Here’s a portion of the Florida child neglect statute, § 827.03 :

Neglect of a child” means:
1. A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; or
2. A caregiver’s failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person.
Except as otherwise provided in this section, neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.

 

In order to be found criminally liable, the state would need to prove the officer was a caregiver, which is also defined in the Florida criminal code as follows:

(1) “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.

It is quite a stretch to suggest a police officer is responsible for the welfare of a child because he’s assigned to the same school the child attends. If the child forgets his lunch, the police officer isn’t responsible to feed the child. The relationship isn’t what the law intended at all, and I’m sure digging into the legislative history of this law would show that to be the case.

As a final note, and I’m sorry this, I guess rant, went on so long, I will repeat my often unpopular opinion that no police officer or first responder owes his life for another.

When I hear people say that this officer knew what he was getting into when he took the job, I wonder if he really did.

Thirty years ago, when this man started his career, people weren’t free to run around with AR-15s or other assault rifles strapped to their bodies without it breaking the law.

Mass shootings and bombings were problems for other countries to deal with, not us.

Children being slaughtered in schools was unheard of back then, and police officers were supported as being the good guys, and given the tools they needed to do the job, including the most current training available.

Today’s police officer is under appreciated and more importantly, under equipped and trained to handle a situation like this.

Many don’t have assault rifles in their vehicles, or helmets/shields, etc. readily available, because those things cost money that most cities won’t spend.

Running after a person shooting an assault rifle, who may or may not be wearing body armor, with nothing but a handgun and your own body armor, is potentially suicide.

It’s a risk all of us say we would take though.

We all say it.

Most would probably do it.

Many, when the chips are down though, wouldn’t.

Should they be charged with a crime?

What if they’re not the SRO assigned to a school? Where do we draw the line?

Do we punish nearby officers who don’t drive to the school fast enough?

Are off-duty officers who live next to the school and hear shots potentially felons too, if they close the windows and go back to watching tv?

What if it’s shown that there were officers at the police station miles away, doing other work, who never left the building to go help? Do we charge them?

It’s a slippery slope that only the State of Florida could undertake to go down.

 

 

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4 Responses to On charging do nothing cops…

  1. Pat says:

    I agree. If a firefighter passes a house on fire is he obligated to run in and start putting the fire out with the garden hose or should he wait for the fire engine to arrive with the appropriate equipment?

  2. markbialczak says:

    The slope is so slippery, Don, with lives at the center.
    Isn’t it something that we must have training to prepare for unexpected shooter experiences in our society? A village police officer came to the library and gave our entire staff a thorough course in what we should do if that horror should happen where we work. I’m glad our management thought enough to educate us, with thoughts toward the public and ourselves.

  3. Kc says:

    The nurse in the above situation would have a “duty to care” as it is an emergency situation. As she did not do it then she could in fact be charged with negligence, she is actually pretty lucky she was not and that she retained her job….(the NMC code of professional conduct states: ‘In an emergency, in or outside the work setting, you have a professional duty to provide care. The care provided would be judged against what could reasonably be expected from someone with your knowledge, skills and abilities when placed in those particular circumstances.’ Duty to Care is defined an obligation to avoid causing harm to a patient’.) So yeah, she fulfilled the requirement of duty to report, but as it was an emergency situation she should have acted.

    However that was not the point….for them to go after a resource officer is plain wrong. Those men and women are special humans who do a crap job (seriously they are cops who choose to deal with kids….WHAT???) for stipends. I know my son talked to his school’s resource officer about bullying….not me, not a teacher, not the counselor— because he trusted the officer to give the best advice. So yeah let’s make cops even more leery about taking these jobs. When are we going to grow a brain???? Ugh!!!!

  4. David K. M. Klaus says:

    When I was a kid in the ’60s, I was told that that the school teaching sisters stood “in loco parentis” and I had to obey them as I would my parents — which in the case of my (Catholic) school seemed to also give them authority to beat children, but that’s a different discussion.

    When my children were in St. Louis Public Schools, since the resource officer was searching bags each day for weapons. unauthorized cellphones, and other I thought that stopping crime and preventing assault or worse was part of the officer’s professional responsibilities, that protecting children was why he was there.

    “[T] he position of school resource officer is one of community engagement, and many who work these positions are filled by officers who, quite frankly, aren’t necessarily wanting to do ‘police work’ anymore for various reasons.”

    If an officer is unable to function with a weapon in the uniform, I don’t want him to be in my kids’ schools. because if there is a violent emergency, I expect him to act there in the same way he would on any other call stating “shots fired.”

    Deputy Peterson apparently froze, whether one considers it cowardice or otherwise. If he had PTSD, for example, he should have been under treatment, not in uniform with a weapon waiting outside while carnage occurred inside. What he did may not have been criminal under current law, but him just standing outside looks to me to be dereliction of duty.

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