Gavin Howe
Law enforcement officials are responsible for upholding the law and maintaining order in society. They are granted specific powers, such as the ability to arrest or detain individuals, and are expected to use force only when reasonably necessary. While the majority of law enforcement officers carry out their duties with integrity and respect for their communities, there are instances of misconduct and failure to enforce the law. This raises the question: can someone be arrested or sued for failing to enforce laws? The answer is complex and depends on various factors, including the specific circumstances, the jurisdiction, and the nature of the failure to act.
| Characteristics | Values |
|---|---|
| Can someone be arrested for failure to enforce laws? | In the US, you can sue anyone, but it is difficult to sue the government for not enforcing criminal laws. The federal government has consented to some tort suits in the Federal Tort Claims Act, but this does not apply to claims based on the failure to perform a discretionary function or duty. |
| Who does this apply to? | Law enforcement officials, including police officers, jailers, correctional officers, probation officers, prosecutors, judges, and other federal, state, or local law enforcement officials. |
| What are the laws regarding police misconduct? | The Department of Justice investigates and prosecutes allegations of Constitutional violations by law enforcement officers, including excessive force, sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs. |
| What is considered police misconduct? | Misconduct can include discriminatory treatment on the basis of race, color, national origin, sex, or religion, as well as harassment, use of racial slurs, discriminatory arrests, coercive sexual conduct, retaliation for filing a complaint, and refusal to respond to complaints. |
| What are the consequences for police misconduct? | The DOJ may seek changes in policies and procedures, individual remedial relief for victims, and individuals may have a private right of action to file a lawsuit under certain circumstances. |
| What are the laws regarding the use of force? | The use of force by law enforcement should be exceptional and restricted by national law in accordance with the principle of proportionality. Firearms should generally not be used unless a suspected offender offers armed resistance or jeopardizes lives, and a report should be made when a firearm is discharged. |
| What are the laws regarding failure to intervene? | An officer who fails to intervene to stop a Constitutional violation by a fellow officer may be prosecuted if they were aware of the violation, had the opportunity to intervene, and chose not to. |
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What You'll Learn
Sovereign immunity
In the United States, sovereign immunity is not absolute and can be waived or consented to in certain situations. For example, the Federal Tort Claims Act waives federal immunity for various tort claims, while the Tucker Act waives immunity for contract-related claims against the federal government. Additionally, Section 702 of the Administrative Procedures Act provides a broad waiver of sovereign immunity for actions taken by administrative agencies, allowing those affected by agency decisions to seek judicial review.
Despite these exceptions, sovereign immunity remains a significant obstacle for individuals or entities seeking to hold governments legally accountable. In the context of law enforcement, the Castle Rock v. Gonzales case (2005) highlighted the reluctance of courts to hold police liable for failing to protect citizens' lives. Similarly, in the 2014 Bundy standoff, the U.S. government did not initially arrest members of a group that threatened law enforcement officers, and it was unclear if individuals or groups could sue the government for failing to enforce criminal laws.
While sovereign immunity provides protection for governments and their employees, it is not without limitations. The abrogation doctrine allows Congress to abrogate state sovereign immunity under specific conditions, as outlined in Section 5 of the Fourteenth Amendment. Furthermore, qualified immunity, a form of sovereign immunity, only shields government actors from liability if specific conditions specified in statutes or case law are met.
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Police misconduct
While the majority of law enforcement officers perform their jobs with respect for their communities and in compliance with the law, there are incidents of police misconduct. Police misconduct refers to behaviour by police officers that exceeds their broad powers and violates the civil rights of citizens. This includes the use of excessive force, sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or a substantial risk of harm to a person in custody. Police misconduct can also take the form of discriminatory treatment on the basis of disability, race, colour, national origin, sex, or religion. This includes discriminatory arrests, traffic stops, and the use of force.
In the United States, the Department of Justice (DOJ) investigates and prosecutes allegations of police misconduct. The DOJ's authority extends to all law enforcement conduct, regardless of whether an officer is on or off duty, as long as they are acting in their official capacity. Federal laws that address police misconduct include both criminal and civil statutes, covering the actions of state, county, and local officers, including those working in prisons and jails.
To address police misconduct, the DOJ may seek changes in the policies and procedures of the law enforcement agency and, if appropriate, seek individual remedial relief for the victims. In criminal cases, the DOJ seeks to punish the wrongdoer through imprisonment or other sanctions, while in civil cases, the focus is on correcting the agency's policies and practices that fostered the misconduct.
In addition to federal laws, state laws, and civil rights laws also play a role in addressing police misconduct. For example, 42 U.S.C. § 1983 is a civil rights law that makes it unlawful for anyone acting under state authority to deprive another person of their constitutional or federal rights. However, it is important to note that qualified immunity may protect law enforcement officers from civil lawsuits or criminal charges, as it requires proof that the officer's conduct violated an established constitutional or statutory right.
While individuals can file complaints and claims of police misconduct, the success of these claims depends on various factors, including the ability to demonstrate particularized injury resulting from the misconduct and the availability of evidence to prove misconduct.
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Discrimination
The Americans with Disabilities Act (ADA) and Section 504 prohibit discrimination against individuals with disabilities in all State and local government programs, services, and activities. These laws also protect individuals associated with a person with a disability. Additionally, the ADA and Section 504 prohibit discriminatory treatment, including misconduct, on the basis of disability by law enforcement officers in their activities, such as interrogating witnesses, providing emergency services, enforcing laws, and arresting, booking, and holding suspects.
In a notable case, United States District Judge John A. Gibney Jr. ruled in favour of Mr. Keith Moore, who presented sufficient evidence of selective enforcement of the law by the Richmond Police Department (RPD) against Black drivers. Judge Gibney relied on statistical evidence and the history of racial discrimination in Richmond to conclude that Mr. Moore had established the discriminatory effect and purpose necessary to prove his claim of systemic bias.
Individuals who believe they have experienced discrimination can report a civil rights violation to the Civil Rights Division of the Department of Justice by completing an online form or contacting them directly. The Division works with other agencies to promote a consistent approach to civil rights laws and can provide assistance and guidance to those affected.
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Use of force
While I could not find explicit information on the use of force to arrest someone for not enforcing laws, I did find information on the use of force by law enforcement in general, as well as the arrest of law enforcement officers for failure to enforce laws.
The use of force by law enforcement officials is governed by a set of basic principles and regulations. The United Nations Office on Human Rights (OHCHR) outlines several guidelines that governments and law enforcement agencies should follow:
- Law enforcement officials should only use force when strictly necessary and to the extent required for their duty.
- Firearms should not be used against persons except in self-defence or the defence of others against an imminent threat of death or serious injury.
- Firearms should be used in a manner likely to decrease the risk of unnecessary harm, and certain types of firearms and ammunition that cause unwarranted injury should be prohibited.
- Governments and law enforcement agencies should develop a range of means, including non-lethal weapons, to allow for a differentiated use of force.
- Rules and regulations should specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted.
Private citizens also have the right to use force when attempting to arrest a suspect, although their rights are more limited than those of police officers. According to the Model Penal Code, private citizens can use deadly force when trying to make an arrest only if the suspect has committed a felony. In contrast, police officers can use deadly force based on a reasonable belief that the suspect has committed a dangerous felony, even if that belief is later proven wrong.
Arrest of Law Enforcement Officers for Failure to Enforce Laws
There have been cases where law enforcement officers have faced legal consequences for failing to intervene and stop the violation of another person's Constitutional rights. For example, in the case of Castle Rock v. Gonzales, the police were reluctant to hold officers accountable for failing to protect the life of a citizen. However, in general, the Department of Justice investigates and prosecutes allegations of Constitutional violations by law enforcement officers, including the use of excessive force, sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs.
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Right to remain silent and other rights when stopped by police
Being stopped by the police can be a stressful experience, and it is important to know your rights in such situations. It is worth noting that the burden of de-escalation falls on police officers, but you cannot assume that they will respect your rights. Here are some of your rights when stopped by the police:
Right to Remain Silent
You have the right to remain silent and do not have to answer any questions about where you are going, where you are travelling from, what you are doing, or where you live. You can explicitly state that you wish to exercise this right out loud. However, in some states, you may be required to provide your name if asked to identify yourself, and an officer may arrest you for refusing to do so.
Right to a Lawyer
You have the right to talk to a lawyer before answering any questions, and the police should stop questioning you once you have expressed this wish. If you cannot afford a lawyer, you have the right to a government-appointed one.
Right to Refuse Search
You do not have to consent to a search of yourself or your belongings, but police officers may pat you down if they suspect you are carrying a weapon. Refusing consent may not stop the officer from carrying out the search, but making a timely objection can help preserve your rights in any later legal proceedings.
Right to Make a Local Phone Call
If you are arrested, you have the right to make a local phone call. The police cannot listen in if you call a lawyer, but they may listen if you call anyone else.
Right to Record
You have the right to record the encounter, if possible. If not, make sure to write down everything you remember, including officers' badge and patrol car numbers, which agency the officers were from, how many officers were present, and what their names were.
It is important to note that you cannot be punished for refusing to answer a question, and only a judge can order you to answer. However, it is also crucial to understand that anything you say to a law enforcement officer can be used against you and others.
While this answer focuses on the rights of individuals when stopped by the police, it is worth noting that, in the United States, individuals generally cannot sue the government for failing to enforce laws. This is because both the state and federal governments have sovereign immunity, meaning they cannot be sued without their consent.
Additionally, the Department of Justice in the United States investigates and prosecutes allegations of constitutional violations by law enforcement officers, including discriminatory treatment, excessive force, sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs.
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Frequently asked questions
In the United States, there is no clear answer to this question. While there have been instances of police misconduct and failure to enforce laws, resulting in consequences such as the Castle Rock v. Gonzales case, it is challenging to hold individuals accountable for not enforcing laws.
Police misconduct can include excessive force, sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or substantial risk of harm to a person in custody. It can also involve discriminatory arrests, discriminatory traffic stops, coercive sexual conduct, and the use of racial slurs.
While it is technically possible to sue anyone in the United States, suing the government for failure to enforce laws is challenging due to sovereign immunity. To have standing to bring a lawsuit, you would need to demonstrate a particularized injury directly caused by the government's failure to enforce the law, which is often difficult to prove.
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