John Minchillo/AP Photo
A passenger looks out at the 36th Street subway station on April 13, 2022, where a shooting attack occurred the previous day. Supreme Court precedent holds that American police have no legal obligation to protect the public.
Last Wednesday, after a 24-hour search, a suspect was apprehended in the New York City Sunset Park subway shooting that injured at least 10 people. Amid the predictable gun control and police funding debates that have begun to roil across social media, it’s fair to also ask: Why wasn’t the NYPD more effective in responding to the situation?
After the shooting, the NYPD was faulted for not stopping the subway lines, having their radio and communications apparatuses malfunction, and exhibiting a plain lack of urgency, as The Intercept reported. Indeed, some speculated that the only reason they caught the suspect, Frank James, was because he made it really easy for them. He had lunch at Katz’s Deli during the manhunt, before tipping off the police himself.
This fits with a number of incidents where police have failed to protect the public; yet, as the Prospect’s Ryan Cooper wrote, they are routinely given more money after tragedies. The questions that get asked in the aftermath are limited: Do police lack the resources to prevent crimes, or did they make tactical or logistical errors that can be fixed with new leadership or more training?
All of these questions are situated in the traditional belief that police are there to proactively prevent and deescalate dangerous situations. The average citizen has been convinced of this imagery of police as heroic and uniquely brave citizens, despite being debunked both by the actions of police forces and the courts themselves.
Let us go back eleven years to February 2011, in the very same place, New York City. As he told in a Cracked.com video some four years ago, Joseph Lozito was on his morning commute through New York City when he hopped on the subway, blissfully unaware of a brutal stabbing spree—perpetuated by Maksim Gelman—that had been going on for over 24 hours at that point.
Lozito would be the final victim in the stint. After Gelman boarded the train and confronted the police officers that were in a secure area, he turned to Lozito and said, “You’re going to die.”
What transpired afterwards was what Lozito described as what “every man thinks about at least twice a day.” Lozito tackled Gelman and they struggled physically, with Gelman stabbing Lozito in the head until they both hit the ground and Lozito disarmed Gelman. Only then did the NYPD officers intervene to apprehend Gelman.
In this case, one of the cops allegedly admitted that he did not intervene in the altercation because he thought Gelman had a gun, instead hiding from the attacker. This prompted Lozito to sue the city of New York. He lost the case in 2013, but not because the Manhattan Supreme Court judge didn’t believe him, or because he lacked evidence, or because the cops had a good reason for not intervening. Lozito lost because of a precedent established by the U.S. Supreme Court: the cops do not have a duty to protect you, or anyone.
In 2005, Jessica Gonzales sued Castle Rock, Colorado police for failing to arrest her husband, who had violated a protective order, resulting in the murder of her three children. Her case went to the U.S. Supreme Court in The Town of Castle Rock v. Gonzales, where she lost because even though the order required arresting her husband upon violation, then-Justice Antonin Scalia successfully argued that “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”
This case builds upon Supreme Court precedent in Deshaney v. Winnebago County Department of Social Services (1989). In that case, a young boy was repeatedly abused at the hands of his father, something that county Social Services was aware of, but made no effort to remove the child. His mother sued once the four-year old entered a vegetative state, and the Court ruled that that the state did not have a special obligation to protect a citizen against harms it did not create.
Based on these precedents, Lozito was told in the New York City case that “no direct promises of protection were made” to him, and therefore he could not sue the police for failing to come to his aid. In other words, the police do not have to act if someone is actively being harmed, they do not have to arrest someone who has violated orders, and they do not have any obligation to protect you from others.
People are still expected to call the police, and many still do, especially given the lack of alternatives. But to criticize their effectiveness in solving crimes in the aftermath furthers the propaganda: It assumes that the police are acting in the interest of the public, when there is no precedent that says that they have to.
Police reform activists have posited that the purpose of policing is not to protect the public, but instead to maintain the status quo that keeps capitalism alive. The first modern-day police were slave catchers; their only interest was your body for their profit. Whatever their true purpose, the legal fact remains that public benefits from policing are incidental, at best.
