Another ruling that the government has no duty to protect
"First, we briefly recount the tragedy that led to this
lawsuit. Jennifer Braddock was issued three protective orders against James Hudson, the father of
her son, because Hudson repeatedly abused Braddock. In August 2001, while the third protective
order was in effect, Hudson broke into Braddock’s home and threatened her. She called the
Memphis Police Department, but it made no attempt to find him. Hudson eventually was convicted
of aggravated criminal trespass, vandalism, and violating the protective order, and sentenced to one
week in jail. Over the next two years, Braddock called the police several times to complain about
various violations of the protective order, including acts of physical violence, but the Memphis
Police took no action. Braddock’s struggle against Hudson’s violence ended when Hudson broke
into her home, killed her and two of her friends, then turned the gun on himself and committed
"As a general principle, state actors cannot be held liable for private acts of violence under
a substantive due process theory. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S.
189, 196 (1989); see also Castle Rock, 545 U.S. at ___, 125 S. Ct. at 2810. We recognize two
exceptions to this rule: (1) when the state has a special relationship to the victim, and (2) when the
state creates the danger that led to the victim’s harm. Jones v. Union County, 296 F.3d 417, 428 (6th Cir. 2002). In Jones, the plaintiff claimed that Union County, Tennessee, violated her substantive
due process rights when it failed to serve a protective order on her ex-husband, who later attacked
her. We held that “the Tennessee Legislature’s imposition of affirmative duties upon state officials
to serve ex parte orders of protection timely does not give rise to a due process claim cognizable
under § 1983 based upon a special relationship between Union County and Plaintiff.” Id. Similarly,
we hold that a protection order does not create a special relationship between police officers and the
individual who petitioned for that order.
Nor may the plaintiffs establish their claims under the state-created-danger theory. Under
this theory, a plaintiff must show “an affirmative act that creates or increases the risk, a special
danger to the victim as distinguished from the public at large, and the requisite degree of state
culpability.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 464 (6th Cir. 2006) (citing Kallstrom
v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir. 1998)). These officers’ alleged inaction fails
to satisfy the “affirmative act” requirement."
[Update in light of comments: the Court's treatment of due process falls into two categories. "Procedural" due process is what you'd normally think of as due process. A person got what process was due, a fair trial or procedure. "Substantive" due process is a strange bird, largely created to make the 14th amendment apply the Bill of Rights to the states. For example, if a state outlaws freedom of speech, it deprives a person of liberty without "due process" no matter how much process they give that person.]
If Memphis or the county refused to giver her a concealed firearms permit, I suppose you could argue they had created or increased the danger to her by denying her the right to self defense...I don't know if thats the case here...Why wasn't she armed and dangerous?
Posted by: doug in colorado at May 10, 2007 01:17 PM
At the risk of committing a shameful act of self-promotion (AKA tooting one's own horn), it was posts like this one from our knowledgeable proprietor that led me last April to get this column printed in my then-hometown paper (their website calls it a letter but at 602 words the print edition looked very different!) in response to this "Watchdog"-type report on the efficacy of restraining orders.
It was then picked up and reprinted in the June issue of The Firing Line, the magazine of the California Rifle & Pistol Association.
Posted by: JT at May 10, 2007 01:34 PM
No duty to protect. And yet, the anti-gunners in this country and the U.N. taking advantage of the Virginia Tech Massacre claiming the individual has not right of self-defense as they now call for a global gun control treaty! That is due cause for despare being forced legally to be a "sitting duck" for the oncoming genocide. Forget about going to a therapist to sort this out because there is not a movement to strip people with emotional problems of their Second Amendment rights. That's the old "Give the Government an inch worth of your rights and they will take a mile. Can you say, "slave?"
May God help us all!
Posted by: Don Hamrick at May 10, 2007 01:59 PM
Forget about going to a therapist to sort this out because there is now a movement to strip people with emotional problems of their Second Amendment rights.
Posted by: Don Hamrick at May 10, 2007 02:00 PM
POINT 1: NO DUTY TO PROTECT!
POINT 2: AND NO DUTY TO ANSWER "FIRST AMENDMENT RIGHT TO PETITION!" See info below.
MY COMMENTARY: I society is breaking down and sliding ever closer to anarchy and the State and U.S. Government have no duty to protect the individual and the State and Federal Government have no duty to respond or answer our petitions to the State and Federal Agencies under the First Amendment Petition Clause, and the State and Federal judicial systems are presumed to be corrupt then that leaves us in a state of injustice. Do we not then have the Tenth Amendment power to "arm ourselves" in defiance of State and Federal gun control laws? If we don't "rebel" against the "State of Disunion" the United Nations is next in line to make a substantial attack on our Second Amendment with a proposed global gun control "treaty." The future looks bleak for the Second Amendment.
DECISION OF THE DAY
First Amendment: Must the Government Respond to Citizens’ Grievances?
Tuesday, May 8th by Robert Loblaw
We The People v. U.S., 05-5359 (D.C. Cir., May 8, 2007)
This case would be an interesting one for the originalists on the Supreme Court, if it ever gets that far. The plaintiffs belong to an organization called We The People, which challenges the government’s authority to tax, wage war, and otherwise intrude on its citizens’ lives. We The People and its members have made their views known to their elected officials, but they have not received a response. They claim that the government’s failure to respond violates their First Amendment right “to petition the Government for a redress of grievances.” They also argue that they are entitled to withhold taxes until they get an answer.
The D.C. Circuit quickly dispenses with this second claim, explaining that the Anti-Injunction Act bars the Court from reviewing the Government’s collection of taxes. Although the first question is a bit more vexing, the Supreme Court has already concluded that the Petition Clause does not actually require the Government to listen to its citizens’ grievances. Accordingly, no response is required.
Judge Rogers concurs to note that the High Court has not yet considered the precise argument raised by We The People. Although she agrees that the D.C. Circuit is bound by Supreme Court precedent, the plaintiffs have raised an interesting historical argument about the original understanding of the Petition Clause, and she wonders whether the folks upstairs will be willing to entertain it.
Posted Tue, 08 May 2007 09:00:03 and filed under First Amendment, Decision of the Day. You can leave a response, or trackback from your own site.
Posted by: Don Hamrick at May 10, 2007 02:33 PM
What are "substantive due process" rights, and how do they differ from regular due process rights?
Posted by: Nimrod45 at May 11, 2007 09:54 AM
Don: Correction, this is not anarchy. We would all be better off with anarchy (anarchism: a political theory favoring the abolition of governments). What we have is an out of control national government which continues to destroy our federal system of government, known as states' rights guaranteed by the 10th Amendment, which were not crushed by Lincoln. The amendments to the constitution during the War To Prevent Southern Independence were not ratified. There is no law forcing us to pay income tax (16th), nor are our Senators holding their offices legitimately (17th). Until the state legislatures begin taking back control of their sovereignty and begin excercising their rights of interposition, we will continue to lose our individual rights. We likewise, must exercise our right of jury nullification to counter the unlawful and run away activist judiciary.
God save our republic.
Posted by: Phil at May 12, 2007 11:03 AM
Frankly folks, I see Jury Nullification as the only salvation at this point short of armed rebellion. Armed rebellion would be nothing short of a disaster, cause untold damage to our Republic but at least we could take most of the self serving Anti-freedom Congress with us and thus make it possible for the public to finally let our so called representatives who have abandoned their oaths of office know that we indeed hold them accountable.
Jury nullification not only can but would let the Judiciary and the Congress, not to mention our State Governments know we mean business and to take back their sovereignty or else. I do not hold with the Armed Rebellion part......yet..... But if it does turn out that the UN does get its way, the Democrats get power in the next election, Armed rebellion will be just a heartbeat away I do believe.
Posted by: Richard E Nygaard at May 13, 2007 12:52 PM
How do we utilize the very valuable and powerful Jury Nullification tool? Advertise it, hold classes on it, invite members of your community to meetings to discuss it and consider it when they get selected for jury duty. Of course one has to know what Jury Nullification is, what it means, what it can do before we can in fact start to use this very powerful tool of the people. It certainly seems like time to take back some of the power that the people have given to those they charge with governing them. It is that or get rid of those governing them altogether and their laws along with them. Sadly, that can have several meanings, all of them with negative consequences. Jury Nullification is easy to use, holds no clauses for retribution by Governments and individuals cannot be held liable for using this very valuable tool. Why is it not being used more often? Because the people do not know they have this powerful tool at their disposal. Time to change all of that.
Posted by: Richard E Nygaard at May 13, 2007 12:59 PM
Many of the people I talk to are astounded and surprised when I tell them the phrase "To Serve and Protect" refers only to a general obligation to the citizenry at large and does not imply any duty at all to any particular individual except in limited circumstances where the police have either taken some affirmative action which placed a citizen in danger or undertaken to protect someone so that they reasonably believed they would be protected from some specific danger.
Thus, denial of a carry permit satisfies neither of the two exceptions because all the denial does is leave the citizen in the same position she was in before applying for a permit. The answer to this situation is not to create legal liability and profits for trial lawyers but to make the laws more reasonable, such as shall issue laws based upon objective criteria.
The real change that is needed, however, is societal. A society that believes in the right of self defense and that owning firearms for that purpose is ordinary and normal will lead to the right kind of laws. Unfortunately, the USA is probably the only first world country with any hope of ever reaching [or returning to] that state, and we're not there yet.
Posted by: Flash Gordon at May 13, 2007 01:24 PM
The police did not arrest Chris Hudson during the time of turmoil he caused Jennifer.
The court even dismissed the case against the sister of Chris Hudson, Susie Hudson. She drove Chris to Jennifer's house knowing he had a gun. She then proceeded to go home and call the police, for GODS sake does this scream accessory to murder or WHAT?????
The family has not had their day in court, Justin is an orphan, no one has been accountable for what this horrible man did to so many innocent people, he was a crack head and had protection from the police, the same ones who were supposed to arrest him, protected him instead of Jennifer and her friends and son.
Justice, NO, why oh why can police hide behind the fact that they did all they could. They did nothing, they let Chris go several times and even waited for him to leave her home so he wouldn't be arrested.
Someone should pay for this, Susie Hudson is guilty of being a accessory to MURDER!!!!!!!!
HELP US OH HELP US PLEASE.
Posted by: Cindy Braddock at August 27, 2007 10:20 AM