Did the NYC cops at the biker beatdown have a duty to intervene? “No” says court precedents

Police Protect And Server (NOT!)

Now that we have found out that at least 5 New York City cops were at the scene where Alexian Lien was pulled from his vehicle in front of his family and beaten by a biker gang, understandable outrage has come from the public. Calls for these officers to lose there jobs, be arrested and sued have been prevalent, but will they?

While it is true that 1 cop has all ready been arrested, that was for his active participation of the beating, the fates of the other cops who just stood by and watched has yet to be determined.

Would it surprise you that legally these cops have no duty to interfere and stop a crime against an individual?

In 1856 the Supreme Court ruled in South v Maryland that local law-enforcement had no duty to protect individuals, but only a general duty to enforce the laws  But that was over 150 years ago, things have surely changed since, no?

No.

The courts have ruled consistently for the past 30 years that the police are under no obligation to stop a crime and protect a person.

In July of this year the courts in New York City dismissed a lawsuit brought on by Joseph Lozito.  Lozito tackled and subdued spree murderer  Maksim Gelman after Gelman killed 4 and injured 5 while both men were on the No. 3 train pulling out of Penn Station.  Lozito’s heroics earned him a couple of stab wounds to the head requiring 22 stiches and 20 staples to close it up.

Why was Lozito suing?  Because there were two transit cops in that train car with him who didn’t intervene for the 60 seconds that he was struggling with Gelman.  Those officers waitied until the threat was subdued and Lozito immobilized the mass murderer before they calmly tapped him on the shoulder and told him “you can get up now”.

According to Manhattan judge Margaret Chan, the transit officers—who were reportedly searching for Gelman at the time—did not have an obligation to aid Lozito, as there was no evidence to suggest they knew he was in trouble. But Lozito, a father of two, says that’s not the case, and that two people—including Gelman himself—had gotten the officers’ attention, and they failed to protect both Lozito and the other people riding with him in the subway car.

I guess watching a man get stabbed for 60 seconds doesn’t constitute “trouble”.  What did the cops think, this was just boys being boys?

Then there is the DC Court of Appeals ruling in the case Warren v DC in 1981 in which the court once again stated that police do not have a duty to provide police services to individuals, even if a dispatcher promises help to be on the way.

In this case, Carolyn Warren and her female roommate were upstairs in a townhouse when they heard their third female roommate downstairs screaming as she was being raped by a pair of intruders.  The women upstairs called 911 and waited.  After 30 minutes when they saw a police car drive by and their roommates screams stopped they assumed the police had arrived and went downstairs.  The police hadn’t arrived and for the next 14 hours the three women were raped, robbed and beaten.

By a 4–3 decision the court decided that Warren was not entitled to remedy at the bar despite the demonstrable abuse and ineptitude on the part of the police because no special relationship existed. The court stated that official police personnel and the government employing them owe no duty to victims of criminal acts and thus are not liable for a failure to provide adequate police protection unless a special relationship exists.

Funny thing about that “special relationship” vernacular, you would think it would cover people with restraining orders or who were otherwise at risk of danger. Yet once again the courts side with the police not having any duty to actually protect a person.

In 2005, the Supreme Court ruled in Castle Rock v Gonzales that a town and its police department could not be sued for failing to enforce a restraining order, which had led to the murder of a woman’s three children by her estranged husband.

These are but a few cases in which the courts throughout the land have reiterated that the police do not have the duty to protect or serve YOU the individual.  It’s more like an ethereal idea of protect and serve than actually doing either.

What does this have to do with firearms?

Plenty.  The gun controllers and anti-gun zealots have long boasted about how the right to keep and bear arms is an antiquated and unnecessary relic of the past because we have the police to protect us.

Yet in reality, you can have a cop right in front of you while you are being a victim of a violent crime and they are fully allowed to legally just stand their and watch you die.

They can ignore your pleas for help and your 911 calls and even show “demonstrable abuse and ineptitude”  and still be in the clear.

Since the cops have no duty to protect us, if you don’t protect yourself, who will?

With the court ruling consistently on the side of sideline cops who just stand their and watch, chances are the 4 other police officers on the scene in New York who stood and just watched Alexian Lien beaten in front of them will not be charged or sued successfully.

I guess at the end of the day, the shield is just for their protection.  The rest of us are on our own.

  • Had an obligation. In the NYS Criminal Procedure law, Police Officer, is defined in Section 1.20, while a Peace Officer, is defined in Section 2.10.
    A peace officer, may get involved; A police officer, is obligated to get involved.
    Crimes of Property Damage; Assault Second Degree; Serious Physical Injuries = all Felony weight.
    Further, they now will face Charges & Specifications at a Departmental Hearing for Termination.
    Also, the District Attorney Office will be bringing everything related to the case before the Grand Jury.
    They aren’t cops – They’re perps with badges.

    • That’s some good research there Brittius. Unfortunately, just because the law is on the books doesn’t necessarily make it enforceable; much like city gun control laws in pro gun states with preemption. If the courts say they have no obligation they will get off…eventually.

      But you’re right…not cops but criminals with badges, gives the good ones a bad name.

      • I’m a retired Detective Sergeant. I worked NYC.

        • Thanks for your service Brittius. I’m sorry that these thugs are dragging the department through the mud.

      • Gil

        he will be fired from the job and then he can be charged criminally as an accomplice

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  • Gil

    yes he has an absolute obligation to get involved if even at minimum it was calling 911 he’s a disgrace he should be fired for malfeasance and Arrested

    • Gil, don’t take this article as me siding with them not having an obligation to get involved. I completely think they have a moral and ethical obligation to help. But legally? According to the courts it would seem that they don’t. Not saying it’s right, it’s just the way it’s been ruled.

  • I can understand the courts ruling “no duty to protect” in that police may have priorities and locations that prevent action in some cases, and therefore can not be held liable for not doing so.
    I can also understand why some people think “911” is the answer to personal protection from violence, we tell them that at every opportunity and much of the press discourages people that attempt to protect them selves. (eg Zimmerman in FL).
    Now, as a public employee, the department should be able to impose a code of conduct that would cost these individuals their jobs, assuming that the police union is not corrupt also.
    I would also think that since the gang went out with the intent of breaking laws (“stop traffic, violate traffic laws, and others” ) that they could be considered a “criminal organization” and subject to RICO laws.
    Here, in Texas, large groups of bikers are seen often and are not considered a negative and many times are involved in very positive community service activities.

  • 42USCSection1983

    Criminal and Civil Liability Mixed Up. It appears that the post on whether or not the five police officers involved in the gang beating of Alexian Lien had a duty to protect him confuses civil liability and criminal liability. Firstly, the five officers have been charge criminally for beaten Mr. Lien and a civil lawsuit has yet to filed. You in error analogized civil cases (South v. Maryland, supra; Warren v. DC, supra, Castlerock v. Gonzalez, Lozito v. City of New York, supra) to a criminal case. These five police officers have been charged with felony assault and gang crimes which carry a sentence up to 25 years. Surely a jury could convict them and hold them criminally responsible these allege crimes. On the other hand, speaking civilly, while it remains to be seen that the Lozito dismissal will be overturned on appeal (I am of the opinion that it will be, as there are material issues of fact that remain). One indisputable fact is clear, under federal law a police officer can indeed be held liable for not intervening in not preventing the violation of Constitutional rights. Under New York law, “A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers.” O’Neill v. Krzeminski, 839 F.2d 11. An officer who fails to intervene can be held liable for damages under § 1983 if that officer observes or has reason to know . . . that a citizen’s rights are being violated by other officers. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).An attorney filing a lawsuit in state or federal court could absolutely obtain a verdict of civil liability against said five police officer, as they knew each were violating Mr. Lien fundamental civil rights and did nothing to intervene.