The news that there were several NYPD officers riding with the motorcyclists who assaulted motorist Alexian Lien last month has prompted much public outrage about why the cops didn’t stop the beating. None of the officers was in uniform, none participated in the attack, and two of them have claimed they didn’t arrive on the scene until the assault was over. Nevertheless, their very presence raises some questions: What was their responsibility in this situation? Are off-duty police officers obliged to intervene when they witness or suspect a crime?
Update, Oct. 9, 2013: NYPD detective Wojciech Braszczok, one of the officers who participated in the rally, was arrested Tuesday evening and charged with riot and criminal mischief. Though Braszczok originally claimed he was not directly involved in the confrontation, video footage allegedly shows him shattering the rear window of Lien's SUV. He is not suspected of participating in the assault on Lien. NBC New York reports that Braszczok was "on a deep undercover assignment" at the time.
New York state Criminal Procedure Law does not differentiate between off-duty and on-duty police officers; both share the same power to apprehend and arrest criminal suspects. But the right to arrest is not an obligation to arrest. Off-duty cops must weigh many factors when deciding whether to intervene: jurisdiction, the crime being committed, whether they’re adequately equipped to defend themselves and subdue the suspect, and whether their intervention might escalate the situation and endanger the public welfare.
But even if an off-duty cop has no good reason to stand back, he’s still not obliged to get his hands dirty. In fact, on-duty cops aren’t obliged to intervene in every single crime. While this might strike you as odd—it certainly struck me that way—it’s actually a long-standing legal principle, based on the idea that the state generally is not responsible for the welfare of individual citizens.
This principle was articulated on the federal level in the Supreme Court case DeShaney v. Winnebago County, which concerned Joshua DeShaney, a child who was beaten so badly by his father that he suffered permanent brain damage. Randy DeShaney, Joshua’s father, was well-known to county social workers as a suspected child abuser, and DeShaney’s mother, who was divorced from the boy’s father, sued the county for its failure to protect Joshua by not removing him from a dangerous situation. The case made its way to the Supreme Court, where, in 1989, it ruled that Winnebago County had no affirmative duty to protect Joshua DeShaney. In his majority opinion, William Rehnquist wrote that while the Due Process Clause of the 14th Amendment "forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ [its] language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” (The court reached a similar conclusion in 2005's Castle Rock v. Gonzales, when it ruled that a Colorado woman could not sue her local police department for failing to enforce a restraining order against her husband, who had gone on to murder their three daughters; Antonin Scalia concluded his majority opinion by helpfully noting that while the Framers "did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.")
Here's another example. In 1975, Carolyn Warren and Joan Taliaferro were asleep on the third floor of their rooming house in Washington, D.C., when they heard a break-in downstairs. Warren called the police, and they eventually arrived and knocked on the front door, only to depart upon receiving no response. Even though Warren called the police again, they never came back. But the burglars were still in the house, and Warren, Taliaferro, and their downstairs neighbor were raped and beaten for 14 hours.
Warren sued the police department for negligence. The case was dismissed; Warren appealed. In 1981’s Warren v. District of Columbia, the D.C. Court of Appeals affirmed the initial dismissal, citing “the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.” In other words, the police department is responsible for maintaining the public welfare in general. But absent some sort of pre-existing “special relationship” between cop and citizen—if the police had actively promised to protect a specific person from harm, for example—there’s no obligation to intervene.
This point hit the headlines in 2011, when spree killer Maksim Gelman stabbed a subway passenger named Joseph Lozito seven times on an uptown 3 train. Two NYPD officers who were standing in the train operator’s compartment chose not to immediately intervene, and Lozito sued the department on account of the officers’ inaction. The NYPD vigorously defended the officers, and, in July, the New York Supreme Court dismissed Lozito’s complaint, noting that “the law is abundantly clear that no liability flows from negligence in the performance of a police function unless there is a special relationship,” and that no special relationship existed between Lozito and the officers in the subway car. (“[P]roximity does not create a special relationship,” the court noted.)
So back to Alexian Lien and the motorcycles. It looks like the officers on the scene had no legal obligation to intervene and stop the other bikers from pulling Lien from his car and beating him in front of his family. But it’s also clear that the NYPD is embarrassed that its officers stood by and failed to prevent a crime about which the entire country is enraged. (The department is also upset that the officers failed to come forward until days after the attack took place.) The embarrassment and the public outrage explain why the cops “will all be stripped of their guns and badges and have been placed on desk duty,” according to CBS News. But the crystal-clear legal precedent here tells me that that’s where the punishment will end.