"I'll be right over, after I finish this donut..."

October 9, 2006 1:31 PM

Is it possible to sue a police department for crummy response time?

This is not for legal advice, it's simply for my own curiousity.

A friend's business was robbed last night. An employee witnessed someone breaking in through a window from across the street (she had left to get a coffee and was walking back), and called 911. They said that there was someone breaking in, that they were watching them remove computers and other office gear, and dispatch told her to stay away and said they'd send someone out right away. She was expecting a sirens-and-squealing-tires response. The actual response: An hour after the burglars left, a single patrol car wheels up, shines a flashlight on the broken window, and *without even going inside to see if there was anyone in there* calls the building's landlord from the emergency number on the front of the building to come put a board up over the broken window.

The burglars were using a stolen u-haul so there was no way to track the license plate she got back. Insurance will cover the loss, of course, but it still seems like criminals have free reign. The building also had an alarm, which worked, so the 911 call wasn't the only notification of a break-in.

This was in Houston, TX by the way. I normally have a lot of respect for police, but this seems rediculous to me. The police clearly had enough notification and didn't provide the service that they're supposed to. Where does liability lay and is there any legal background for this kind of lawsuit?

posted by SpecialK to law & government (29 comments total)

No. There's legal precedent that states that the police cannot be held responsible for their failure to do their job in a timely fashion, or, for that matter, at all.
posted by kindall at 1:37 PM on October 9, 2006

I would guess that on any given night in a city of that size, there are many many robberies and a good amount of murders, narcotics deals, domestic abuse, major events requiring some policing, traffic accidents and problems, etc. Houston police apparently has a neat crime program up in which you can see how many things happened per area per month.
posted by shownomercy at 1:41 PM on October 9, 2006

However if the private alarm company also included armed (or unarmed) response then the owner may have an argument with them.

From personal experience a silent alarm does nada zip. Loud annoying noise would have scared the bad guys away.
posted by Gungho at 1:41 PM on October 9, 2006

I would not consider the description of the above to be an emergency. They would've been better off calling the Police Department directly.
posted by dgeiser13 at 1:46 PM on October 9, 2006

dgeiser: How is a break-and-entry and felony theft in progress, which usually aren't committed by the nicest people, not an emergency requiring an urgent response by a police force that is chartered to ensure the preservation of life and property? What if another of her coworkers had been inside when the thieves broke the window, and the girl who called it in didn't know it? This wasn't very late in the night, either.
posted by SpecialK at 1:51 PM on October 9, 2006

i think you might have something there, specialk...maybe the cops didn't have the resources at the time to do an intervention. in a perfect world, they would want 2-4 officers there, and maybe even more. if they could only send 1, i would hold off ... lest he becomes another victim.
posted by lester's sock puppet at 2:03 PM on October 9, 2006

My understanding of 911 is that it is to be used when people's lives are in immediate danger. I understand what you are saying regarding the chance that someone may have been in there. But in reading your description of the incident I didn't get that sense of urgency.

I've called police a few dozen times on various issues and I've always used their direct number and have gotten great service. My guess is when you call 911 there is a level of discretion left up to the 911 operator. When you call the police you are typically talking to an actual police officer and you know that they know.
posted by dgeiser13 at 2:09 PM on October 9, 2006

Speculation - I wonder if this isn't policy - perhaps the priority is that mere property is not worth blood - if the crime in progress might result in someone getting hurt, then it would be a priority. If not, then attempting to confront someone in the act of a break-in is the biggest risk for someone getting hurt, so don't do that - spend more resources later for a lower chance of catching the person. Lots of pros and cons, does anyone know how (if?) they come into play?

Another maybe-it's-normal? speculation - perhaps experience has taught police that unless a policecar is already in the neighbourhood and not doing anything, then even a priority response will arrive too late to catch break-ins, so just fit it in when there is time.

Any dispatchers here?
posted by -harlequin- at 2:09 PM on October 9, 2006

the title seems to imply that officers did not show up because they where being lazy, which i would venture is a false assumption. this question might as well read “is it possible to sue a police department because there are more criminals than officers?”
posted by phil at 2:11 PM on October 9, 2006

I agree with dgieser13--unless you know it's life-threatening, don't call 911. Call the police department directly.
posted by dobbs at 2:26 PM on October 9, 2006

The case I've always heard associated with this question is Warren v. District of Columbia. The answer is definitely 'no.'
posted by Skorgu at 2:28 PM on October 9, 2006

Like kindall said, there's no legal precedent, but your friend should absolutely call the local TV stations and her local city councilperson / municipal representative.

The cops can be "encouraged" to be more responsive through public pressure, and especially in an election year.
posted by bshort at 2:29 PM on October 9, 2006

Yeah, Warren is the case I was thinking of, I just couldn't remember the name.
posted by kindall at 2:45 PM on October 9, 2006

The sad reality is that property crimes are rampant and impossible to investigate / prosecute. Consequently, the police usually limit their involvement to keeping a record of what goods were stolen. Prevention is in the domain of private security, and compensation is up to insurers. Let go of your anger and move on.
posted by randomstriker at 2:54 PM on October 9, 2006

Maybe there's legal precedent under some state laws -- it's possible but I've never heard of it. There's almost certainly no liability under the federal constitution on the hypothetical situation you've given, and the relevant case is probably Deshaney v. Winnebago:

"[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means."

However, most federal courts do recognize something called the "state created danger theory" -- essentially, that if the cops make the situation worse by some affirmative act, acting like they're going to intervene but then not following up, then you might have a claim. So for instance, if the cops told the business owner in your hypothetical that they were going to stop the robbery in progress, that she didn't need to call her private security company or come down herself, but then did nothing -- she might have a claim.
posted by footnote at 3:05 PM on October 9, 2006

Not in this case, but Kindall is overstating the case a little bit.

Police officials can be sued, not for slow response time, but for willful, wanton harms. County of Sacramento v. Lewis is one example that I've worked with before. Again, it doesn't come to bear on this case, but cops can be sued under certain circumstances.
posted by craven_morhead at 3:29 PM on October 9, 2006

I would make a huge fuss with my city council, chamber of commerce, police commission and anybody else I could think of. If thieves and other criminals know that the response will be slow, then people aren't safe. This is a basic function of the city, and they should be able to figure out how to respond to a breakin in progress.

The insurance will cover the value of the stolen items, rarely replacement value, and not the hassle value of replacing files from backup, reinstalling software, etc.
posted by theora55 at 3:40 PM on October 9, 2006

#dgeiser13: My understanding of 911 is that it is to be used when people's lives are in immediate danger.

In my area, the only way to contact the police is through 911 (for emergancies and non-). I think they like going through a system where all callers are logged and recorded.
posted by MonkeySaltedNuts at 3:59 PM on October 9, 2006

The police can't even be held responsible for failure to prevent or respond to violent crime, up to and including murder. See Castle Rock v. Gonzales, in which a police failure to respond to a violation of a restraining order resulted in the murder of three small children. The Supreme Court ruled that the children's mother was not entitled to compensation from the police because courts must defer to the judgement of police forces about which of their duties take priority, and they are entitled to decide that enforcing a restraining order against a violent ex-husband is a low priority. The court said that individuals have no "enforceable individual rights to a certain level of police protection."
posted by decathecting at 4:30 PM on October 9, 2006

For the con law geeks in the room: the interesting thing about Castle Rock is that it asserted a procedural due process right to police protection (enforcement of a TRO).
posted by footnote at 4:43 PM on October 9, 2006

In Chicago, I can't tell you how many times I have called the police department's non-emergency number on what I consider to be something not-so-urgent, and gotten transfered to 911. Ok, I can. At least half a dozen.

Where I used to live in the suburbs of Chicago, the person who answered the 911 calls and the person who answered the non-emergency number are the same.

I would never discourage someone from dialing 911.
posted by Not in my backyard at 6:02 PM on October 9, 2006

"I'll be right over, after I finish this donut..."

Your title assumes facts not in evidence.

That is, you are assuming that a unit was dispatched to the call immediately and took their time responding, maybe went on a meal break first.

We do not know how long the call was “held” before being dispatched.

As others have said, there may not have been units available to respond. There are many situations when a police officer may not leave a current assignment.

For example:

Transporting a civilian in your vehicle? Unable to respond.

Transporting a prisoner in your vehicle? Unable to respond.

Transporting a crime victim in your vehicle back to the station to make a statement? Unable to respond.

Guarding the scene of an “unattended” death? Unable to respond.

Guarding a crime scene where evidence must be secured? Unable to respond.

At the scene of a motor vehicle accident fatality? Unable to respond.

At a domestic dispute, assault-in-progress, gun call, shots fired, et cetera, unable to respond.

Having said all of that, the response time was abysmal, and I would be interested to hear the Police Department’s explanation.

As you note, a burglary-in-progress is a felony, often perpetrated by people who are “not the nicest” and in my experience are priority calls even in high crime areas.

Fortunately, Texas law permits the disclosure of 911 tapes.

The relevant section states, in part,

“A police department's ‘radio logs’ or ‘radio cards’ that describe the police department's records of all calls answered by the police, including a brief description of the nature or reason for the call and its location, generally are public, although exceptions might arise exempting the names of complainants.” Tex. Att'y Gen. ORD-394 (1983). Source (Scroll down to "IV RECORD CATEGORIES--OPEN OR CLOSED"-->"K. Police records"--->"3. 911 Tapes")

If you (or your friend) were to file a request, make sure to ask for the time the call was received and dispatched.
posted by MLIS at 7:13 PM on October 9, 2006

I'll give you a different answer that might help you...

Visit the police/fire department and ask them what their average response times are. Then get the comparitive response times for different agencies in surrounding communities. They may be unhelpful, but this should be public information.

This info makes great fodder for newspaper articles and visits to the local city council meetings.
posted by frogan at 7:19 PM on October 9, 2006

Several responses have correctly told you that lawsuits against the police, on a constitutional theory, will not fly. What no one has yet mentioned is that this episode can be a pivotal point for political action. If you were running for mayor, or for city council, this would be a strong anecdote to point out that (regardless of whether there can be a lawsuit filed) the City ain't doin' its job.
posted by megatherium at 8:32 PM on October 9, 2006

MLIS: I often put sarcasm, cliches, or otherwise tounge-in-cheek titles on Ask Metafilter posts. Sorry if it offended you. Thanks for the information. I do realize that there are LOTS of other valid reasons that they could've been slow in responding; in fact, one of my motorcycle riding buddies is a Houston police officer and I have nothing but the utmost respect for him, his patience dealing with all kinds of people, and the number of overtime hours he puts in.
posted by SpecialK at 9:22 PM on October 9, 2006

The interesting thing about the case law is that it seems to consider guaranteed prompt police response to be a special right. In other words, by claiming that the police should have responded to your emergency faster than they did, you are saying that your needs should have come ahead of the needs of others who also needed assistance at that time. When you think about it like that, it's obviously ludicrous.
posted by kindall at 10:58 PM on October 9, 2006

As a civilian, it occurs to me that spotting a burglary in progress seems like an oppurtunity for the police to actually catch some criminals that are otherwise difficult. This would raise expectations of a fast response.

I'm not saying this should be the case, only that it seems like a reasonable thing for a civilian to suppose. It sure is how I think of it. Reality probably is something else. Police may do themselves a favor my making the reality of the situation better understood by the tax-paying public.
posted by Goofyy at 5:00 AM on October 10, 2006

IAAL.

You learn in the first year of law school that public entities (fire, police, utilities) can't be sued for failure to protect against the harm they were created to address, unless they specifically undertake that duty for your benefit.

The leading case is Moch v. Rensallaer Water Co. The plaintiff's building caught fire, the fire department came but there was no water pressure at the hydrant, even though the water company had a statutory duty to supply it. A lawsuit against the water company was dismissed, because the water company had no enforceable duty to the plaintiff.

This applies even where the police are specifically notified of a severe risk but don't respond. Riss v. NYC Police Dept.

The only exception is where the defendant specifically assumes the duty of protecting the plaintiff, as in Schuster v. City of New York.
posted by KRS at 10:45 AM on October 10, 2006

KRS - Not to quibble..eh, who am I kidding...I quibble: those are New York state tort cases; DeShaney is the federal case on a substantive due process/1983 theory.
posted by footnote at 12:28 PM on October 10, 2006