Police Liability for Negligent Failure To Prevent Crime

• NCJ Number: 75888
• Journal: Harvard Law Review Volume: 94 Issue: 4 Dated: (February 1981) Pages: 821-840
• Author(s): Anonymous
• Date Published: 1981
• Length: 20 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article examines the deficiencies found in the prevailing doctrine of no-duty which disallows police or government liability for failure to prevent crime and suggests a police professional standards model which would expand police liability while making sufficient allowance for police discretion.

Abstract

In the absence of a special relationship between the police and the victim, such as that between the police and a witness, no jurisdiction recognizes liability of government or law enforcement officers for failure to prevent crime. Even in those jurisdictions that no longer honor blanket immunity and do not statutorily immunize police, the courts rely on the tort concept of duty to continue that immunity. However, courts do recognize the liability of police and government in cases where a special relationship does exist and have expanded to some degree the special relationship exception within the last two decades. Although section 1983 of the Civil Rights Act of 1871 would seem to allow a broad application of negligence liability, controversy surrounds that issue. The courts, in adhering to the no-duty rule, mask policy considerations, such as reluctance to interfere with executive discretion, and a fear of the financial impact of expanded liability. However, expanded liability is justified by the principle of loss spreading and simple fairness. Several alternative liability approaches exist, including crime victim compensation statutes, a gross negligence standard, and expansion of the special relationship doctrine. However, the professional standards model seems best suited for compromise. The model would allow violations of professional standards to create a cause for action under State tort law, thus allowing judicial scrutiny of most law enforcement decisionmaking while functioning within the traditional constraints of negligence law. Eighty-eight footnotes accompany the text.