Another case on "the government will protect you"
From the Burlington Free Press:
"A state trooper had no special duty to arrest a man who had sexually assaulted and battered his former girlfriend and continued to do so after the trooper left, the state's highest court has ruled.
Trooper Maurice Lamothe of the St. Albans barracks, responding to a domestic violence call on Nov. 18, 2002, saw marks on the victim's face but did not arrest the man later convicted of battering and sexually assaulting her, despite what Baker described Thursday as a "pro-arrest policy" in the state police manual. ...
After Lamothe, who Baker said is still a trooper in St. Albans, left the scene, the man beat and sexually assaulted the woman again; he did both things again after breaking into her apartment early the next day, the court said. ...
In a decision written by Associate Justice Brian Burgess, the court said there is a high bar for someone suing the state, because it is protected by a legal doctrine of "sovereign immunity."
The victim would have had to show gross negligence on the part of the trooper, Burgess wrote, and his failure to foresee and prevent further violence did not rise to that level.
"Ordinarily, the duty owed between strangers does not extend to controlling the conduct of third persons to prevent physical harm," he wrote. And while Vermont law calls on police officers to protect public safety, "the statutes create no special relationship between crime victims and law enforcement personnel." ...
[NB: at this, many if not most states would take an even broader view of sovereign immunity: you can't sue, period, whether it was gross negligence or not. But the second standard mentioned -- that a person has no duty to prevent someone else from committing a crime -- would rule out suits in VT even if gross negligence were shown.
A bit of personal experience is set out in extended remarks below.
I may have played a modest role in the gross negligence standard.
Back in the mid 1970s, I was a law student and clerking for John Stompoly of Tucson. I was researching a case where he represented a fellow named Grimm and was suing the Brown Fox Tavern. A robber had entered, demanded money, the proprietor was drunk and had just argued with his wife, refused to give him any, and he shot and killed the proprietor and several patrons. Grimm was, as I recall, one of the patrons.
I told Stompoly the suit against the tavern was very weak. We were going to have to argue that a robbery victim has a legal obligation to give in, if it would protect his patrons -- very weak indeed.
But I happened to open my desk. In it were the "slip opinions" from appellate courts. The top one caught my eye. It was a criminal appeal, by the same guy as shot these people. And dated maybe a month before the shooting. It affirmed his conviction for attempted murder. What was he doing out on the street a month later?
A bit of investigation showed the board of pardons and paroles had paroled him, at the first opportunity. And in the court file were the opinions of three psychiatrists as to whether he was competent to stand trial. 2-1 he was competent. But all three added he was extremely dangerous, no conscience at all. Viewed killing a person as no more important than pulling out a weed. One opined that it was astonishing that he hadn't killed already. So why was he paroled? And maybe we could sue the parole board. I told Stomper, who initially scoffed.
Then his investigator came back, with a report that the board had done it almost as reflex. They were aware of the psychiatric reports but apparently hadn't read them, just figured that 2 our of 3 said he was sane (i.e., competent to stand trial) so he was OK.
Stomper did sue the board, and it became Grimm v. Bd of Pardons and Paroles. The AZ Supreme Court ultimately held that you could sue them if you could show gross negligence. Arizona eventually wrote that standard into statute.
BTW, I knew a court clerk for the Supremes at that time. She related that they'd never heard a debate like that in chambers. Thru the door you could hear the justices shouting things like "You just can't do that!" at each other.
I don't see what is so outrageous about suing govt employees for gross negligence. If you manage to do your job so poorly that people die as a result, you should be in seriously deep shit. If I create an x-ray machine that sometimes irradiates patients, I would certainly expect to be sued. Getting a government paycheck doesn't change this.
Being on a parole board should be seen as serious business. These people should come to work with the understanding that carelessness on their part can cost innocent lives. The threat of liability can accomplish that.
Posted by: Jim W at August 31, 2007 03:23 PM
Getting a government paycheck changes everything. Essentially all of our laws originate when government meant the King, and the King held his position because G-d himself had put him there. While some of the trappings have gone by the wayside, you'll have about as much luck suing G-d today as you would the government.
Posted by: Ken at August 31, 2007 05:20 PM
The U.S. Congress typically exempts itself from regulations they pass on American businesses and the general public; even such wonderful agencies like the EPA & OSHA have no jurisdiction on Congress. You wish to smoke in your office and your co-workers be damned? Go to or work for Congress. From one perspective, I suppose this is sensible. These regulatory agencies report to the President & theoretically could be used to harass the Legislature. Still, if these regulations are so wonderful, why would Congress wish to exempt themselves?
Posted by: Jerry in Detroit at September 5, 2007 04:42 AM