This article is for informational purposes and is not legal advice. Consult with your agency’s legal advisor.

The way law enforcement officers use force is under scrutiny like never before. While officers used to be primarily concerned about civil liability, new use-of-force laws and ever-changing public expectations are ushering in an increased criminal exposure.

One particularly perplexing dilemma that has challenged the thinking of officers for many years is how law enforcement should respond to non-criminal barricades. Consider the following scenario: Neighbors in a crowded apartment building call 9-1-1, reporting that a man and his girlfriend are screaming at each other. She is overheard to yell, “Put down the rifle” and “Don’t shoot.” Patrol officers respond and evacuate the neighbors. They implement a surround and callout operation, but there is no response from inside. Suddenly, the woman and her child walk out of the apartment, leaving only the suspect behind. The woman is interviewed and denies she or her child were ever held against their will, nor was she the victim of any crime. As the foggy details of the incident become clear, what was thought to have been a hostage incident was really just a man feeling suicidal and his girlfriend trying to convince him not to shoot himself. The girlfriend confirms the man is now alone inside the home with a rifle. Your negotiator speaks with the man on the phone. He refuses to exit the apartment and confirms he is going to kill himself with his AR-15 rifle. Negotiations continue for 45 minutes, until the suspect stops answering calls. What would you do next?

The law

In the United States, courts have continually reaffirmed that law enforcement officers, absent a “special relationship,” do not have a specific legal duty toward individuals, but rather have a duty to the public at large.^[1]As a law enforcement officer and trainer in the U.S., my study of the public duty doctrine ends at the borders of my country. I wouldn’t pretend to understand laws in other countries, but during … Continue reading This common law idea is known as the public duty doctrine. The origin of the public duty doctrine can be traced to South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855). In South, the plaintiff alleged that he was kidnapped, held for a period of four days and released only when he secured the ransom money demanded by his kidnappers. He also asserted that the local sheriff knew that he had been unlawfully detained yet did nothing to obtain his release. The plaintiff sued the sheriff for refusing to enforce the laws of the state and failing to protect the plaintiff. The circuit court awarded the plaintiff a substantial judgment. The Supreme Court reversed and declared that a sheriff’s duty to keep the peace was “a public duty, the neglect of which he is amenable to the public, and punishable by indictment only.” The easiest way to understand the doctrine is by the phrase “duty to all, duty to none.”^[2]Steve Papenfuhs and Eric P. Daigle, “Duty to All, Duty to None,” DLG Learning Center, October 1, 2011, https://dlglearningcenter.com/duty-to-all-duty-to-none/#post-25581-endnote-ref-20. The duty to protect, for example, is a duty owed to the public at large but not to individuals, unless a special relationship is created between the officer and the individual.

The question of duty and liability is relatively clear in some states, like California, Kansas and Nevada, yet somewhat murky in other states, like Florida.^[3]William N. Drake Jr., “The Rescue of an August Body of Law: Florida’s Public Duty Doctrine,” The Florida Bar Journal, no. 5 (May 2006): 18.^[4]William N. Drake Jr. and Thomas A. Bustin, “Governmental Tort Liability in Florida: A Tangled Web,” The Florida Bar Journal, no. 2 (February 2003). Unlike most other states, Florida law comes with nuances to the public duty doctrine. Some nuances include whether an action or inaction by a law enforcement officer was “discretionary or operational” and a theory known as “the zone of risk.” In Florida law, a discretionary decision is immune from liability, whereas an operational decision is not. The zone of risk theory says that when an officer’s conduct creates a foreseeable zone of risk posing a general threat of harm to others, a duty for the officer to conduct themselves reasonably will arise. It is also important to understand that certain police agencies, by the very nature of their jurisdiction, may automatically have a “special relationship” with those they serve — most notably, college campus police officers in the U.S. At least one court case has ruled that campus police officers do in fact have a legal obligation to protect students from foreseeable harm.^[5]Regents of the Univ. of Cal. v. Superior Court of L. A. Cnty., 240 Cal.App.4th 1296, 193 Cal. Rptr. 3d 447 (Cal. Ct. App. 2015).

Law enforcement officers should be familiar with the public duty doctrine cases from the states in which they are employed. A case to be familiar with, however, is Warren v. District of Columbia, 444 A.2d 1, 8 (D.C. 1981). It seems to be the most often cited public duty doctrine case pertaining to law enforcement, so it would be a good place to start as you begin your research. Two notable quotes from that case are as follows:

• “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 specific legal duty exists.”
• “A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.”

Special relationships

While law enforcement officers do not generally have a legal duty to individuals, a duty can be created when the officer enters into a special relationship with an individual. Two ways an officer may create a duty are 1) when the officer made a representation that induces a person into a relationship of reliance and that representation is detrimentally relied upon and causes a foreseeable harm; or 2) where the officer engages in an affirmative act that increases the foreseeable risk of harm to the individual.^[6]Pollock v. Florida Highway Patrol, 882 So. 2d 928 (Fla. 2004), McCorkle v. Los Angeles, 449 P.2d 453 (1969), Mann v. State, 70 Cal.App.3d 773 (1977).

Conclusion

Decision-making at the scene of a non-criminal barricade should be based on an understanding of the law and modern tactics. How the intricacies of the law impact law enforcement officers must be hammered out ahead of time with the help of a competent legal advisor and by seeking out appropriate training.