Police officers in New York do their best to protect people, sometimes under very difficult circumstances. Sometimes, people sue the city/county/town and officers when they are injured, claiming that the police didn’t protect them. But do the police have a duty to protect them? And can someone sue the police for failure to protect them? Here is a plain-English explanation.
As a general rule, a city (and therefore the police department) cannot be held liable for injuries as a result of its failure to provide police protection unless the city owed a special duty to the injured person. The rationale behind this general rule, is that a city’s duty to provide police protection is ordinarily one owed to the public at large and not to any particular individual or class of individuals.
But there is a narrow exception – the city may be held liable if a “special relationship” existed between the city and the injured person (for purposes of this article, the “city” essentially means the police department). The elements of the special relationship are:
1. an assumption by the city, through promises or actions, of an affirmative duty to act on behalf of the injured person;
2. knowledge on the part of the city’s agents (the police) that inaction could lead to harm;
3. some form of direct contact between the city’s agents (the police) and the injured person; and
4. the injured person’s justifiable reliance on the city’s affirmative undertaking.
People have often sued cities and towns alleging that the police department failed to protect them but these lawsuits rarely work. In Estate of Sauickie v. City of New York, a federal lawsuit in the Southern District of New York, for example, the plaintiffs were involved in a car crash on the FDR Drive near 42nd Street. They made multiple calls to 911(NYPD) asking for assistance, telling the 911 operators that they were in a dangerous position. They 911 operator told plaintiffs that NYPD would respond. Although they waited 2 hours, NYPD did not respond. Thomas Sauickie saw a NYPD officer on the opposite side of the FDR Drive and crossed the FDR Drive to speak to him. The officer told him that they would be given assistance. He was then allowed to walk back across the FDR Drive, but was hit by a car and killed. His family sued the City and the NYPD for wrongful death and other claims. In this case, the 911 operator promised that the NYPD would respond to the scene, but not when they would do so. This was found to be the type of obligation owed to the public at large, not an affirmative duty to act on behalf of the caller (the plaintiff). As to the second factor, the plaintiff could not show that the city knew that inaction would lead to harm. The police did not know that Sauickie would cross the FDR Drive. Nor was the conversation with the officer across the FDR or the fact that that officer “allowed” him to cross the FDR enough. For these and other reasons, the lawsuit failed.
Other cases in which lawsuits have failed because there was no special relationship, include:
Vague statements made by police were not enough to show promises or actions (1st factor
- a police officer promised he would “take care of it”
- officers told a person to “hang in there” because “something was being done”
- officers promised to keep a car in the area for an unspecified amount of time and to respond to future 911 calls
injured person could not show that police were clearly on notice their inaction would lead to harm (2nd factor)
- neither driver’s explanation he had chest pain nor his appearance was enough to give police officer notice that instructing driver to remove his car from the shoulder of the expressway could cause him to crash and suffer severe injuries
No direct contact between the injured person and the police (3rd factor)
- Not enough when the injured person did not live in the home of the individual who the police promised protection to
No justifiable reliance on the police undertaking (4th factor)
- No justifiable reliance found when the person drove himself home after being told by police officer to wait for his brother to give him a ride home and driver was injured
- No justifiable reliance when the police promised they would arrest someone first thing in the morning, and the injured person knew that no arrest had been made by the afternoon yet they stayed in the home anyway
- Officers assured plaintiff over several months that something would be done, but no arrest was made in burglary – a plaintiff is not entitled to particular prosecution of another
But cases where the lawsuit was allowed to proceed, because the police were in a special relationship with the injured person, include:
Definite, clear statements show a promise or action (1st factor)
- 911 operator promised to send help “right away” and the burglar killed the caller
- Officer told DV victim that her husband would be “in prison for a while” and she should not worry because she was “going to be given protection”… husband got out two days later and attacked her
Orders of Protection
- An order of protection automatically satisfies the first two elements - an order of protection constitutes an assumption of an affirmative duty of protection coupled with an awareness that inaction could lead to harm.
In sum, the police are generally not liable for failure to take action or provide police protection, unless the four elements are met and there is a special relationship with the injured person.