Police Regularly Breach Their Social Contract

As the public sadly learns after every mass shooting, and as first year law students are shocked to learn, the police have no duty to protect you. There is a large and growing body of legal precedent where judges affirm, somehow with a straight face, that police have no duty to protect you. The police failed the students in Parkland, Florida in 2018 and then again in Uvalde, Texas in 2022. These are just two of a growing pile of examples (and bodies). One of the first court cases analyzing police duty was Riss v. New York, 22 N.Y.2d 579 (N.Y. 1968), where a woman who had been harassed by a rejected romantic suitor asked the police for protection after the scorned suitor warned her that it was her “last chance.” Despite their knowledge of the threat, the police failed to act in any capacity, and the woman was the victim of an acid attack, through a hired assailant. This attack permanently disfigured her face, and sadly enough, she later married her “admirer.”

The area of law in which judges always analyze police duty, or any other duty to act in a situation where personal injury occurs, is called “Torts,” not to be confused with a delicious dessert. By contrast, Contracts is a completely separate class in law school and a completely separate area of law. This separation makes sense in most situations. For instance, the issue of whether a good Samaritan has a duty to act in the first place to help someone hurt on the side of the road, is firmly within the province of Tort Law. However, this author argues that the subject of police duty to citizens necessarily blurs the lines between Tort Law and Contract Law.

Broadly speaking, Contract Law examines whether a contract was formed in the first place, whether or to what extent a contract has been or is being performed, and whether a contract has been breached. One of the main tenets of contract formation is the concept of Consideration. In other words, there can be no contract, not even between two individuals, without Consideration. “Consideration,” in the legal sense, differs from the common-sense definition of consideration. In Contract Law, “Consideration” refers to the rule that in order for there to even be a contract between two parties in the first place, let alone whether a contract was performed or breached, one party needs to give something up in exchange for a benefit. In other words, there needs to be a simultaneous benefit and detriment to both parties. With regard to police duty, a social contract is formed between police and citizens when citizens pay taxes and experience some restriction of their freedom and the threat of punishment if they themselves break laws. These detriments are allegedly in exchange for the protection that police allegedly offer. In no other contract would either party to the contract have as much leeway in its contractual duties as the police has leeway with regard to protecting taxpaying citizens. The concept of the social contract was first popularized by English philosopher John Locke. Locke believed that the obligation of citizens to obey governmental authority is conditional upon the government’s protection of the rights of each citizen, including the rights to life, liberty, and property.

Assuming now that we have established the existence of a contract, we turn to the problem of performance of the contract. A party can completely perform their end of a contract or substantially (imperfectly) perform it. Imperfect performance will not give rise to a lawsuit for breach of contract but the other party may be entitled to compensation for the difference between the expected and actual performance. Perhaps within this framework, the citizens of the town where a mass shooting occurs, or at the very least the affected families, should be entitled to a tax refund or at least a relief from paying taxes for some amount of time in the future.

Having said that, police inaction in a mass shooting or other tragedy, of which the police had notice, would arguably amount to a “material breach” (i.e., below the standard of substantial performance). The police inaction in these tragedies is akin to a contractor being paid to build a house and then abandoning the project after building a frame. In any other contract, the party who suffered the material breach may sue the breaching party for damages. Unfortunately, police and other governmental officials have carved out a labyrinth of protection against being sued, and that is a whole other can of worms called Sovereign Immunity. Without getting too into the weeds, this concept indicates that police cannot be sued unless you can show that your constitutional or statutory rights were clearly violated, such as through excessive force or deliberate indifference. These “deliberate indifference” cases tend to arise in the context of failure to provide medical treatment to prisoners. There is a good argument to be made that families affected by school shootings should be entitled to sue their respective negligent police departments for deliberate indifference. These deliberate indifference cases arise under the Fourteenth Amendment, through deprivation of life without due process of law. These cases are actionable under the Federal statute, 42 U.S.C. § 1983.

If affected families of these tragedies cannot hold police accountable, then it is unclear why the public even pays taxes to the police. By contrast, the Fire Department actually regularly does its job, whereas the police seem to do nothing but collect more revenue through speeding tickets and forfeiture of the property and money of those they arrest, such as for petty drug charges. In essence, we are paying the police taxes so we can pay them even more money in speeding tickets.

Since you cannot rely on the police to arrive on time, or even apparently to help once they do arrive, it is important to not rely only on police for your family’s protection. You and your family are your own first tier of defense against home intruders and other assailants. Arm yourself and train yourself before it is too late. Most tragedy is avoidable.

Credit for inspiration for this article goes to Ryan McMaken at the Mises Institute: https://mises.org/power-market...

This article is not meant to serve as legal advice nor meant to describe the law of any particular jurisdiction. If you have any questions about your specific legal situation or any contemplated actions, you should contact an attorney in your jurisdiction.

Author: H. Gera Meyman, Esq., Meyman Law PLLC