The police have a moral duty to save us, but whether they have a legal obligation is the question.
I read the NYT article on Mendoza v Castle Rock. That’s not definitive, and there is a set of special conditions involved.
The pure example would be an officer ignoring me if I were bleeding to death in the street, and there being no obvious crime involved; perhaps I misused a chainsaw. Clearly enforcement has a duty to help on a moral level. But is there a legal level? One might argue that by not helping he is depriving me of life, liberty, and the pursuit of happiness.
If we confine it to the cop’s purview, which is enforcement of the law, he may be free of charges. I think it’s a case of finding the right legal theory for the situation.
The Mendoza case is different. There was a restraining order. It was not observed. The husband could not have come into possession of the children without violation of the restraining order, usually a misdemeanor.
The Castle Rock police force is almost certainly under some sort of charter. And that functions as a contract. People pay their taxes and receive services described in the charter. That’s the deal. The most important service offered by the police is enforcement of the law. In this case, the CRPD seems to have been remiss on enforcement. Once the restraining order was violated, the purpose of the restraining order (security) was also violated. That meant the CRPD were obliged to enforce the law; the consequences that the law was meant to prevent and that the order was meant to prevent were now happening. Default of enforcement was not an option. The violator needed to be brought to bay.
The attorneys before the SC relied on a spurious argument: an overly general reading of a clause in the Constitution. It was a bad theory, and literal readers of the Constitution shot it down.
The real argument was dereliction of the obligation to enforce the law. I am assuming that is the purpose of the CRPD. If they had enforced the restraining order and charged the husband w. violation there is a chance the children might be alive. I am also assuming that there is wording in that municipality regarding law enforcement.
This SC decision doesn’t really address the duty to save a dying person. Based on contract theory, if there is wording somewhere that the police are to protect and serve or defend, etc., in a city or state charter, then that is the argument. Another component of the argument is customary practice. Has it been viewed as customary to save the lives of those in danger?
The more I think about this problem I’d say the jury is still very much out. We have to be mindful of the explicit mandate behind any municipal or state police force. What do the founding documents say? If the word protect is used, then we have a pretty good case for legally enforcing the police to save us when we’re dying. And once protection becomes a general practice — and it is — it is hard to deny the force of social expectation as a compelling right to be saved. Why would the state be saving some lives but not others? (Due process, equal treatment.)
Justices have been skewed on this, overthinking the civil liability component if police aid goes wrong; the courts seem committed to sacrificing people’s lives to save municipalities and states from litigation. They have, to our general discomfort, chosen the greater of two evils: better to let us die than err and be liable to claims for damages.