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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.
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 behalf 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
physically 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 particular 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 imminently in peril 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 - ed.)
The Superior Court of the District of Columbia held that:
"...the fundamental principle (is -ed.) 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 relationship 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,
without 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 argument 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 permitting dangerous criminals
to go unapprehended lest particular individuals be
injured or killed would inevitably and necessarily
endanger 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 unrelated 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. Similarly, 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. Therefore,
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 person 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 mis-
informed, 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 castrophobic - 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 under-strength. 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 entitled 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 certainly 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.
* * * * * * *
A one-hour VHS video tape of "Dial 911 and Die", taped from "Cooper's
Corner", a community-orientated program from Highland Park, Illinois,
featuring Jay Simkin is available from:
Mr. Aaron Zelman,
Jews For the Preservation of Firearms Ownership,
2872 So. Wentworth Avenue,
Milwaukee, Wisconsin, 53207
Telephone (414) 769 0760
Please enclose (check or money order) $14.95 for the
tape, and $3.50 handling and shipping.
"Cooper's Corner" is not associated with Colonel Jeff
Cooper in any way. Cooper's Corner features Mr.
Kenneth Cooper of Highland Park, Illinois.
A condensed version of this "Special Report" will
appear in the July issue of "GUNS & AMMO" magazine,
scheduled for a June release.
Composed and uploaded as a public service
For the JFPO
by
George Wm. Everitt, Editor,
TheIllinoisShooter,
Official publication of the
Illinois State Rifle Association.
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