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From: m0102@tnc.UUCP (FRANK NEY)
Newsgroups: dc.general,dc.talk.guns,va.general,talk.politics.guns
Subject: Dial 911 and die
Message-ID: <1877@tnc.UUCP>
Date: 15 Dec 92 14:08:15 GMT
Organization: The Next Challenge, Fairfax, Va.
Lines: 486
Documentation you want, documentation you got.
For those in talk.politics.guns, this is a repost of an article from
May of 1992 for those who have not seen it. Someone in dc.general or
dc.talk.guns or va.general (it was xposted) has challened the thesis
that the police are not here to protect citizens.
I will be the first to admit that this group has their own agenda
(that coincides with mine B-) ). However, I can find no fault with
their research. I have yet to find one case in VA DC or MD where a
police officer or department has been found liable for nonfeasance in
similar cirumstances. Any legal eagles with different information are
invited to share same.
Frank Ney N4ZHG EMT-A LPVa NRA ILA GOA CCRTKBA "M-O-U-S-E"
Commandant and Acting President, Northern Virginia Free Militia
Send e-mail for an application and more information
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Strict liability for gun makers is like suing GM for drunk drivers
JPFO SPECIAL REPORT
DIAL 911 AND DIE!
By Aaron Zelman and Jay Simkin, JFPO
Copyright 1992
by Jews for the Preservation of Firearms Ownership
THE BAD NEWS: YOU'RE ON YOUR OWN..... Most Americans believe that
their local police have a duty in law to protect them against
criminals. They are wrong. Some of them are dead wrong. And
some of those who are dead wrong are dead because they have been
duped by ignorant or dishonest politicians or police chiefs, who
promise protection that they cannot give. Some of these
officials know that they have no legal duty to protect the
average person, and yet still support disarming law-abiding
people, the better "to protect" them from criminals!
Front-line police officers sometimes are verbally abused by
victims of criminals who wrongly believe that police officers
have a duty to protect the law-abiding. These good citizens
blame the police officer for not doing a job for which they have
never been responsible: protecting the average person against
criminals.
THE POLICE: WE SERVE EVERYONE, BUT NO ONE IN PARTICULAR.....U.S.
law is based on English common law. In English common law, "the
Sheriff" is a government employee whose main job is enforcement
of government decisions: Seizure of property, arrest of persons
wanted by the authorities, collection of taxes, etc. Maintenance
of public order, a secondary duty, was done to the extent
resources allowed.
POLICE PROTECTION = POLICE STATE.....It is obvious -- 500 years
ago in England and in America now -- that a sheriff could not be
everywhere at once. It was -- and is -- equally clear that to
protect every person would require an army of Sheriffs (or
sheriff's deputies).
Maintaining an Army of police officers - in effect a police
state - would nullify the Freedoms set forth in the Bill of
Rights. Neither the Framers of the Constitution - nor their
successors - wanted to avoid the risk of harm to some in
individuals arising from criminals' activity by creating a police
state that inevitably would harm every individual.
POLICE STATE OR SECOND AMENDMENT RIGHTS.....Instead, the Framers
provided for a judicial system to deal with criminals, persons
who abused the Freedoms provided by the Constitution. The
Framers assumed that a law-abiding person would largely be
responsible for their safety. As a matter of law, that
assumption still is valid. --MORE--(11%) assumption still is
valid.
THE GOOD NEWS: THE SECOND AMENDMENT PRESUMES INDIVIDUAL OWNERSHIP
OF ARMS.....
The Second Amendment reads: "A well-regulated Militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed."
It is based on individual ownership of arms. Generally, the
Framers avoided stating the obvious. So, they did not word the
amendment, "A well... State, the right of EVERY
PERSON...infringed." That is, the Framers assumed that every
person would look out after his own security, and of necessity
would be armed. They saw no need to state so obvious a truth.
THE MILITIA: ARMED PERSONS ASSEMBLED FOR LAWFUL PURPOSES.....
Rather, the Framers wanted to emphasize what they
felt would be unobvious: that armed individuals may lawfully
assemble to use their Arms only to defend the State based on the
U.S. Constitution (but not to overturn the Constitution). This
is, perhaps, why the words Militia, State, and Arms are
capitalized.
When armed individuals gather for lawful purposes - e.g., the
defense of the Constitution - they are "the Militia". A 20th
Century derivative of "the Militia" is the National Guard, which
has existed since 1901. It is an arm of the Federal Government:
"Since 1933, all persons who have enlisted in a state National
Guard unit have simultaneously enlisted in the National Guard
of the United States. In the latter capacity, they have become
a part of the Enlisted Reserve Corps of the Army, but unless and
until ordered to active duty in the Army, they retained their
status as members of a separate state Guard unit." [Perpich v.
Department of Defense, U.S. Supreme Court, No. 89-542, (1990)
L Ed 2d 312].
Thus, the National Guard exists to enforce government policy.
It is not THE "Militia", but A "militia". U.S. Law states that a
"State may provide and maintain at its own expense a defense
force that is exempt from being drafted into the Armed Forces of
the United States". [32 U.S.C. Sec. 109(C)]. Nonetheless, no
state now does so.
If the Federal authorities used the Army or National Guard to
change the Constitutional order - or a State governor so abused a
state militia - a disarmed citizenry would be helpless. The
Framers did not want this. Generations of their successors have
agreed.
As a result, the Framers wanted the wording of the Second
Amendment to make it clear that armed individuals could gather
together for specific purposes, e.g., defense of the
Constitution and the Liberties it proclaims.
UNCONTROLLED CRIMINALS SUBVERT THE CONSTITUTION.....The Framers
felt no need to state that individuals would use arms to defend
themselves against whom the government never promised to provide,
and indeed, never has had an obligation to provide.
It is only the failure of the government to control criminals
in recent decades that has called into question the validity of
the individual right to own arms for the essential purpose of
defending the Constitution. This is as much an individual duty as
is personal self-defense.
THE LAW: THE POLICE ARE NOT THERE FOR *YOU*.....State and city
governments - rather than the Federal authorities - are
responsible for local law enforcement. So, only occasionally
have Federal Courts ruled on the matter of police protection.
However, in 1856 the U.S. Supreme Court declared that local
law enforcement had no duty to protect a particular person, but
only a general duty to enforce the laws. [South v. Maryland, 59
U.S. (HOW) 396,15 L.Ed., 433 (1856)].
The Fourteenth Amendment to the U.S. Constitution gives you
no right to police protection. In 1982, the U.S. Court of
Appeals, Seventh Circuit, held that:
"...there is no constitutional right to be protected by the
state against being murdered by criminals or madmen. It is
monstrous if the state fails to protect its residents against
such predators but it does not violate the due process clause
of the Fourteenth Amendment or, we suppose, any other provision
of the Constitution. The Constitution is a charter of negative
liberties: it tells the state to let people alone; it does not
require the federal government or the state to provide services,
even so elementary a service as maintaining law and order."
[Bowers v. DeVito, U.S. Court of Appeals, Seventh Circuit,
686F.2d 616 (1882) See also Reiff v. City of Philadelphia,
477F.Supp.1262 (E.D.Pa. 1979)].
There are a few, very narrow exceptions. in 1983, the
District of Columbia Court of Appeals remarked that:
"In a civilized society, every citizen at least tacitly relies
upon the constable for protection from crime. Hence, more than
general reliance is needed to require the police to act on be-
half of a particular individual. ...Liability is established,
therefore, if the police have specifically undertaken to
protect a particular individual and the individual has
specifically relied upon the undertaking.
...Absent a special relationship,
therefore, the police may not be held liable for failure to
protect a particular individual from harm caused by criminal
conduct. A special relationship exists if the police employ an
individual in aid of law enforcement, but does not exist merely
because an individual requests, or a police officer promises to
provide protection." [Morgan v. District of Columbia, 468 A2d
1306 (D.C. App. 1983)].
As a result, the government - specifically, police forces -
has no legal duty to help any given person, even one whose life
is in imminent peril. The only exceptions are a person who:
* Has helped the police force (e.g., as an informant or as a
witness).
* Can prove that they have specifically been promised
protection and has, as a result, done things that they
otherwise would not have done.
RELY ON THE POLICE: AND PAY HEAVILY.....Even someone repeatedly
threatened by another has no entitlement to police protection
until they have been physical-ly harmed.
In 1959, Linda Riss, a New Yorker, was terrorized by an ex-
boyfriend, who had a criminal record. Over several months, he
repeatedly threatened her: "If I can't have you, no one else will
have you, and when I get through with you, no one else will want
you." She repeatedly sought police protection, explaining her
request in detail. Nothing was done to protect her.
When he threatened her with immediate attack, she again
urgently begged the New York City Police Department for help:
"Completely distraught, she called the police, begging for help,
but was refused." The next day, she was attacked" A "thug" hired
by her persecutor threw lye (sodium hydroxide) in her face. She
was blinded in one eye and her face was permanently scarred.
The Court of Appeals of New York ruled that Linda Riss has no
right to protection. The Court refused to create such a right
because that would impose a crushing economic burden on the
government. Only the legislature could create a right to
protection:
"The amount of protection that may be provided is limited
by the resources of the community and by a considered
legislative-executive decision as to how these resources may
be deployed. For the courts to proclaim a new and general
duty of protection ...even to those who may be the partic-
ular seekers of protection based on specific hazards, could
and would inevitably determine how the limited police resources
of the community should be allocated and without predictable
limits."
Judge Keating dissented, bitterly noting that Linda Riss was
victimized not only because she had relied on the police to
protect her, but because she obeyed New York laws that forbade
her to own a weapon. Judge Keating wrote:
"What makes the city's position particularly difficult to
understand is that, in conformity to the dictates of the law,
Linda did not carry any weapon for self-defense. Thus, by a
rather bitter irony she was required to rely for protection on
the City of New York, which now denies all responsibility to
her." [Riss v. City of New York, 293 N.Y. 2d 897 (1968)].
CALIFORNIA: AN IMMINENT DEATH THREAT MEANS NOTHING.....Even a
person whose life is imminent danger is not entitled to help. On
4 September 1972 Ruth Bunnell called the San Jose (California)
police department to report that her estranged husband, Mack
Bunnell, had telephoned her to tell her that he was coming over
to her house to kill her.
In the previous year, the San Jose police, "had made at least
20 calls and responses to Mrs. Bunnell's home...allegedly related
to complaints of violent acts committed by Mack Bunnell on Mrs.
Bunnell and her two daughters." Even so, Ruth Bunnell was told
to call back only when Mack Bunnell arrived.
Some 45 minutes later, Mack Bunnell arrived and stabbed Ruth
Bunnell to death. A neighbor called the police, who then came to
the murder scene.
The California Court of Appeals held that any claim against
the police department:
"...is barred by the provisions of the California Tort Claims
Act, particularly Section 845, which states: `Neither a public
entity nor a public employee is liable for failure to establish
a police department or otherwise provide police protection or,
if police protection service is provided, for failure to provide
sufficient police protection." [Hartzler v. City of San Jose,
App., 120 Cal.Rptr 5 (1975)].
WASHINGTON, D.C.: RAPE IS NO CAUSE FOR CONCERN.....If direct
peril to life does not entitle one to police protection, clearly
imminent peril of rape merits no concern.
Carolyn Warren, of Washington, D.C., called the police on 16
March 1975: tow intruders had smashed the back door to her house
and had attacked a female house-mate. After calling the police,
Warren and another house-mate took refuge on a lower back roof of
the building. The police went to the front door and knocked.
Warren, afraid to go downstairs, could not answer. The police
officers left without checking the back door.
Warren again called the police and was told that they would
respond. Assuming they had returned, Warren called out to the
house-mate, thus revealing her own location.
The two intruders then rounded up all three women. "For the
next fourteen hours the women were held captive, raped, robbed,
beaten, forced to commit sexual acts upon each other, and made to
submit to the sexual demands of [the intruders]."
The Superior Court of the District of Columbia held that:
"...the fundamental principle [is] that a government
and its agents are under no general duty to provide public
services, such as police protection, to any particular
individual citizen...The duty to provide public services is
owed to the public at large, and, absent a special relation-
ship between the police and an individual, no special legal
duty exists."
In an accompanying memorandum, the Court explained that the
term "special relationship" did not mean an oral promise to
respond to a call for help. Rather, it involved the provision of
help to the police force. [Warren v. District of Columbia, D.C.
App., 444 A.2d 1 (1981)].
ILLINOIS: SCHOOL TEACHERS GET NO HELP EITHER.....On 20 April
1961, Josephine M. Keane, a teacher in the Chicago City Public
Schools was assaulted and killed on school premises by a student
enrolled in the school. Keane's family sued the City of Chicago,
claiming that:
"...the City was negligent in failing to assign police
protection to the school, although it knew or should have known
that failure to provide this protection would result in harm
to persons lawfully on the premises (because) it knew or
should have known of the dangerous condition then existing
at the school."
The Appeals Court affirmed the judgment of the Circuit Court
of Cook County. Presiding Justice Burke of the Appeals Court
held that, "Failure on the part of a municipality to exercise a
government function does not, with-out more, expose the
municipality to liability." Justice Burke went on to say that:
"To hold that under the circumstances alleged in the complaint
the City owed a `special duty' to Mrs. Keane for the safety and
well-being of her person would impose an all but impossible
burden upon the City, considering the numerous police, fire,
housing and other laws, ordinances and regulations in force."
[Keane v. City of Chicago, 98 Ill App2d 460 (1968)].
NORTH CAROLINA: HELPLESS CHILDREN DON'T COUNT.....Even
defenseless children merit no special care. On 3 June 1985
police tried top arrest a man and his "girl friend", both of whom
were wanted on multiple murder charges, and who were known to be
heavily armed.
The alleged murderers - along with the "girl friend's" two
sons, aged nine and ten years, - tried to flee in a car. As the
police closed in after a running shoot-out, the children were
poisoned with cyanide and then shot in the head either by the
mother or her "boy friend", one of whom then blew up the vehicle,
killing both. The boy's father - who had filed for divorce -sued
the law enforcement agencies and officers for "wrongful death" of
his sons. The North Carolina Court of Appeals held that:
"...the defendant law enforcement agencies and officers did not
owe them (the children - ed.) any legal duty of care, the breach
of which caused their injury and death...Our law is that in the
absence of a special relationship, such as exists when a victim
is in custody or the police have promised to protect a particular
person, law enforcement agencies and personnel have no duty to
protect individuals from the criminal acts of others; instead
their duty is to preserve the peace and arrest law breakers for
the protection of the general public. In this instance, a special
relationship of the type stated did not exist....Plaintiff's argu-
ment that the children's presence required defendants to delay
[the] arrest until the children were elsewhere is incompatible with
the duty that the law has long placed on law enforcement personnel
to make the safety of the public their first concern; for permit-
ting dangerous criminals to go unapprehended lest particular indiv-
iduals be injured or killed would inevitably and necessarily en-
danger the public at large, a policy that the law cannot tolerate,
much less foster." [Lynch v. N.C. Dept. of Justice, 376 S.E. 2nd
247 (N.C. App. 1989)].
VIRGINIA: WRONGFUL RELEASE = WRONGFUL DEATH? WRONG!.....Marvin
Munday murdered Jack Marshall in Virginia. Mundy - convicted
for carrying a concealed pistol - was sent to jail by a judge who
expressed concern that Munday, "might kill himself or a member of
the public". Munday was mistakenly released from jail 8 days
later. Nine days later he was re-arrested on a un-related
charge. Five hours later, the same jailer and sheriff released
him, apparently without checking to see if that was proper.
Three weeks later, Mundy robbed and murdered Marshall.
Marshall's widow sued, alleging negligence on the part of the
sheriff and jailer, asserting a violation of Jack Marshall's
right to due process. The Court rejected the claim:
"....a distinction must be drawn between a public duty owed
by the officials to the citizenry at large and a special duty
owned to a specific identifiable person or class of persons.
....Only a violation of the latter duty will give rise to
civil liability of the official....to hold a public official
civilly liable for violating a duty owed to the public at
large would subject the official to potential liability for
every action he undertook and would not be in society's best
interest.".....no special relationship existed that would
create a common law duty on the defendants to protect the
decedent (Marshall - ed.) from Mundy's criminal acts. Sim-
ilarly, without a special relationship between the defendants
and the decedent, no constitutional duty can arise under the
Due Process Clause as codified by 42 U.S.C. Sec. 1983. There-
fore, plaintiff's (Mrs. Marshall - ed.) due process claim also
must fall." [Marshall v. Winston, 389 S.E.2nd 902 (Va. 1990)].
THE BOTTOM LINE: YOUR LIFE IS IN YOUR OWN HANDS.....These cases
- and there are many others - show clearly that under U.S. law:
* No individual has a right to police protection, even when
life is in clear and immediate peril;
* There is no right to police protection simply because there
are not enough police resources available to enable every per-
son who feels threatened to be protected;
* To make police officers answerable to individual citizens
for a failure to provide protection would make police officers
afraid to do anything for fear that an action - or inaction -
would expose them to civil liability.
This is unavoidable:
* Life is risky;
* The police cannot be everywhere at once;
* It is impossible to hire enough police officers to protect
every person who needs it or thinks they needs it.
No one can or should rely on the local police force to defend
him or herself, even against a specific threat coming from a
known source. Each of us is responsible for ensuring his or her
personal safety.
Anyone who says "You don't need a gun, the police will
protect you", at best is misinformed, and at worst is simply
lying. To offer such advise suggests that police have a duty to
provide protection and usually will provide it. The police have
no such duty. And, while police may try hard to provide
protection - and a failure to do so can be catastrophobic - there
is no legal recourse for a person harmed by that failure.
WHAT WE NEED LEAST: GUN BANS AND WAITING PERIODS....."Gun
Control" is founded on a total misunderstanding of the role of
police in our society. "Gun control" advocates presuppose the
police have a duty to protect every individual. But, as proved
above, the police never had this duty, and indeed, cannot have it
so long as the Constitution remains in force.
Therefore, bans on gun ownership - or imposition of a waiting
period before a gun may be purchased - simply give an attacker a
legally-protected Window of Opportunity to do you harm.
Moreover, "gun control" makes the law-abiding person less able
and willing to take responsibility for their own defense. We
will never eliminate criminals. But we must do far more to curb
them. That is what the Constitution requires.
Many police forces are understrength. But it is quite clear
that to enable the police to defend each and everyone of us ,
would require us to set up here a police state that makes Joe
Stalin's Russia look like a "Love Boat" cruise ship. That is not
the lesser of two evils - i.e., better than letting criminals run
free - it is the greater.
WHAT WE NEED MOST: NATION-WIDE CONCEALED CARRY.....A law-abiding
person's security - as a matter of Law and a matter of Fact - is
in their own hands. Even if we had effective criminal control -
and we are far from that happy state of affairs - each law-
abiding person would still be responsible for their own safety.
Any law-abiding person should be able legally to carry
firearms, concealed, as this is the best way to enable such
persons to protect themselves. It is a potent deterrent: the
criminal would not know who was, and who wasn't, armed. It would
enable a person who had been threatened - and was not en-titled
to police protection - to have at hand the means to protect
themselves.
THE FUTURE: NO MORE KILLEEN MASSACRES.....Concealed carry is not
a panacea. A criminal would always have the advantage of the
first shot. But if the intended victim(s) were lawfully entitled
to carry a concealed firearm, the criminal's first shot could be
their last. If concealed carry of a firearms were Federal Law,
massacres such as occurred in Killeen, Texas, would almost cer-
tainly become a thing of the past. The criminal would be killed,
quickly, by one of the intended victims.
Licensing is not needed, simply because criminals now carry
concealed weapons at will. Licensing would only affect the 99+%
of Americans who own firearms, and who do not abuse them. What
purpose is served by the costly building of huge files on law-
abiding people? Moreover, is not the presumption in U.S. Law
that a person is presumed innocent until proven guilty?
It is better that we enact and strictly enforce harsh
penalties for concealed carry by those legally debarred from
firearms ownership - persons with criminal records of violence -
the more so if commission of a crime were involved.
LIFE OR DEATH: ITS' UP TO YOU.....Wise-up those who back "gun
control" --Federal, State, and local law-makers. law-enforcement
chiefs, prosecutors, and Media personalities -- that the police
have no duty to protect you. Let them know that their support
for "gun control" puts your life at risk. Send them a copy of
this Special Report. Urge them to ditch "gun control" and to
lobby urgently for nation-wide concealed carry. Your life
depends on it.
Mr. Aaron Zelman,
Jews For the Preservation of Firearms Ownership,
2872 So. Wentworth Avenue,
Milwaukee, Wisconsin, 53207
Telephone (414) 769 0760
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