Police had no duty to assist or protect a civilian who risked his life to stop a killer on a New York subway car, according to the defendant’s arguments in Lozito v. City of New York. The plaintiff sued the city and the NYPD after a suspect wanted for several murders attacked him in view of two officers. Unfortunately, caselaw going up to the U.S. Supreme Court may support the city’s argument, as it pertains to civil liability for failure to prevent or investigate individual crimes. In the absence of a specific duty established by statute, law enforcement is generally not liable to crime victims for such omissions.
The plaintiff, Joseph Lozito, was on a subway train on the morning of Saturday, February 12, 2011, when Maksim Gelman boarded the train at Manhattan’s Penn Station. Gelman was the subject of a citywide manhunt for a crime spree that left four people dead. Gelman pounded on the door of the motorman’s car, where two NYPD officers were stationed as part of the manhunt. Gelman turned and ran towards Lozito when the officers refused to open the door. Using a move he learned from watching mixed martial arts on television, Lozito knocked Gelman to the ground, and the two fought. By the time police officers intervened, Lozito had at least seven knife wounds. Gelman was later sentenced to two hundred years in prison.
Lozito filed suit against the NYPD for failing to protect him. The NYPD’s account of the incident states that Officer Terrance Howell tackled Gelman, but Lozito claims that Howell locked himself and another officer in the motorman’s car. A grand-jury member allegedly told Lozito that Howell admitted to staying put during the attack because he thought Gelman might have a gun. The city’s argument that the NYPD does not owe a duty of protection to any individual, but rather to the public at large, is fairly well-settled as the “public duty doctrine.”
The U.S. Supreme Court ruled in DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 202-03 (1989), that the police did not violate a child’s civil rights when they failed to intervene to protect him from his abusive father. Police and county social workers had investigated a series of allegations of child abuse, but did not intervene in time to prevent the father from inflicting permanently disabling injuries. The Due Process Clause of the Fourteenth Amendment, the court held, does not put an affirmative obligation on police to prevent harm against any individual person. Id. at 195-96.
A recent Washington DC case affirms the principle that police do not owe a duty to investigate crimes to any specific individual. McGaughey v. District of Columbia, 684 F.3d 1355 (D.C. Cir. 2012). The plaintiff in that case suspected that she had been drugged and raped. She went to the hospital, but detectives with the Metropolitan Police declined to investigate further and told the hospital that no forensic exam was necessary. The appellate court affirmed summary judgment for the District based on the public duty doctrine.
Lozito is seeking to distinguish his case based on the fact that the attack occurred during a manhunt for Gelman, and while two officers were on the train specifically to look for him. This, Lozito claims, made the officers aware that a crime might be imminent. Few cases, if any, have addressed this angle, but some courts have made an exclusion to the public duty doctrine when a statute creates a specific duty. In Rodriguez v. Perez, 994 P.2d 874 (Wash. App. 2000), the court allowed a claim for negligence to proceed against a city for failing to investigate allegations of child sex abuse. The court noted that state law affirmatively established a duty to protect children by investigating child abuse allegations. Id. at 877-78.
Lebowitz & Mzhen’s personal injury attorneys help people in the Washington, DC area recover their just compensation when they have suffered injuries because of negligence or tortious conduct. For a free and confidential consultation, contact us today online or at (800) 654-1949.
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