Oct 2, 2020

No Special Duty

What are the police for? Producer B.A. Parker started wondering this back in June, as Black Lives Matter protests and calls to “defund the police” ramped up. The question led her to a wild story of a stabbing on a New York City subway train, and the realization that, according to the law, the police don’t always have to protect us. Producer Sarah Qari joins Parker to dig into the legal background, which takes her all the way up to the Supreme Court... and then all the way back down to on-duty officers themselves.

This episode contains strong language and graphic violence.

Reported and produced by B.A. Parker and Sarah Qari, and produced by Matt Kielty and Pat Walters.

Special thanks to April Hayes and Katia Maguire for their documentary Home Truth about Jessica Gonzales, Cracked.com for sending us down this rabbit hole, Caroline Bettinger-López, Geoff Grimwood, Christy Lopez, Anthony Herron, Mike Wells, and Keith Taylor.

Support Radiolab by becoming a member today at Radiolab.org/donate.    


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Intro: You're listening to Radiolab. From-

Intro: WNYC.

Jad Abumrad: Hey, I'm Jad. This is Radiolab. Quick warning this episode contains strong language and graphic violence. So if you are listening with kids, you might want to sit this one out. But okay, with that out of the way, we'll start things off with--

B.A. Parker: Recording.

Jad: Producer B.A. Parker.

B.A. Parker: Oh, boy. All right.

Jad: Do you have a sense of where you want to start?

B.A. Parker: Yes, sure.

Jad: Okay.

B.A. Parker: It all began I think in June, the George Floyd protests were happening in full flux in New York.

Jad: Parker says, since she was a journalist and forbidden from protesting, she was just stuck in her apartment.

B.A. Parker: Feeling kind of helpless.

Jad: Just spending a lot of her time thinking.

News clip: -defund the police departments--

B.A. Parker: I wound up having this genuinely, befuddling thought of just, "Wait, what exactly is the police for?"

Jad: You mean like, what is their job?

B.A. Parker: Yes. That was just something that I was really trying to figure out for myself.

Jad: Now, I have to confess. Initially, I didn't see how that was even a question. I mean, there are a lot of things that need to be talked about when it comes to policing in America, but their job description didn't seem to be one of them. That felt pretty clear to me. Police are supposed to enforce the law, yes, but more than that-

Voice clip: Police are sworn to protect and serve.

Jad: -they're supposed to protect us.

Voice clip: To protect and serve.

Jad: It's what they say, right? I mean, it's this thing you see written on the sides of their cars, "To protect and serve."

Voice clip: To protect and serve the people.

Jad: Now do they always do that? No, but that's clearly their job.

B.A. Parker: Yes, that's what you think, that's what I thought. But then, funnily enough, a friend sent me like an animated video-

Voice clip: If you've ever been on the internet, I mean, you hear right now.

B.A. Parker: -of this guy-

Voice clip: My name is Joe Lozito.

B.A. Parker: -named Joe Lozito. He's got a bald head trimmed goatee and in this video, he basically just tells this insane wild story-

Voice clip: -you're going to die-- whipped out an eight-inch knife.

B.A. Parker: -of this thing that happened to him. That took this question that I had of, "What do the police do?" and just blew it open.

Jad: Tell me more.

B.A. Parker: I saw this video. It was about what happened to him. Immediately I went and I searched for him and messaged him.

Joe Lozito: Okay.

B.A. Parker: Cool, cool, cool. Can you just tell me your name and where you're from?

Joe: Yes, Joseph Lozito, but everyone calls me Joe. I'm from Long Island, Merrick, New York, but originally from Queens.

B.A. Parker: Hey, Joe, is there's something in the background?

Joe: Yes. Oh, shit. I didn't mute my TV. Hold on. Fuck, I forgot about that.

B.A. Parker: [laughs]

Joe: Okay, how about that? Is that better?

B.A. Parker: Yes, I can't hear it now. Let's go back to February of 2011.

Joe: 2011. Yes, February of 2011, February 12, started like a regular day.

[alarm beeping]

B.A. Parker: 6:00 AM, Joe got up.

Joe: I'm a creature of habit.

B.A. Parker: Got dressed, got out of the door, walked over to a Wawa.

Joe: Got my coffee.

B.A. Parker: At the time, he was living in Philly.

Joe: Working in New York City. Drove to New Jersey, got out on the train, took a nap.

B.A. Parker: Woke up in Manhattan.

Joe: Penn Station.

B.A. Parker: Made his way downstairs.

Joe: Where the subways are.

B.A. Parker: Got down the platform, waited a minute.

Joe: Got on the first train, which is the 3 train.

B.A. Parker: Got in the very first car, took a seat.

Joe: In the very first seat.

B.A. Parker: Joe is basically at the very front of the train. A few more people got in.

Joe: If you've taken the subway before, you know the doors are open for 10 seconds or whatever.

B.A. Parker: But this morning Joe says, they were just sitting there with the doors open.

Joe: Next thing I know, two police officers get on the subway.

B.A. Parker: They walked up to the very front of the car where there's this little door--

Joe: -to the motorman's compartment.

B.A. Parker: That's where the driver is and the two officers, they go in there.

Joe: Which I thought was weird, but whatever. It's New York. Who the hell knows? Finally the doors closed. We start moving but we're crawling as if a single person was behind the entire subway and pushing it. It was that slow. Which again was a little weird, but it was only going to get weirder.

B.A. Parker: Because it was right then Joe noticed that there was this man, in mid-20s, six feet tall-

Joe: He was a little dirty.

B.A. Parker: -standing a few feet away from Joe. This guy went over to the door where the officers and the driver were.

Joe: He starts banging on the door.

B.A. Parker: Starts yelling.

Joe: "Let me in."

B.A. Parker: One of the officers shouts back.

Joe: "Who are you?" He says, "I'm the police."

B.A. Parker: The officer shouts back, "No, you're not. We're the police."

Joe: With that, the man walks back without incident.

B.A. Parker: But then Joe looks across the train and notices this other guy.

Joe: Scared to death like he was going to shit his pants.

B.A. Parker: A passenger. This guy had clearly seen the first guy and he was alarmed. He goes up to the same door, starts knocking on it.

Joe: But with a bit of subtlety, as to not draw attention, waving the cops to come out.

B.A. Parker: He keeps knocking on this door.

Joe: Looking over his shoulder--

B.A. Parker: Back at the first guy, who is now standing a foot away from Joe.

Joe: I look up at him--

B.A. Parker: He says to Joe, "You're going to die." Then he reaches into his jacket, pulls out an eight-inch knife and stabs Joe right in his face.

Jad: Oh my God.

Joe: Under my left eye.

B.A. Parker: Joe said--

Joe: You don't have time to think about it.

B.A. Parker: -he lunged at this guy's legs.

Joe: I ended up wrapping my arms around his waist. While I was taking him down--

B.A. Parker: This guy was able to stab show once, twice, three times in his head.

Joe: But I was able to get him down.

B.A. Parker: Joe landed on him with all of his weight.

Joe: But even with that, he still had the knife in his hand. Now all of a sudden, he's flailing up with the knife.

B.A. Parker: Joe got his hands out.

Joe: Trying to catch his wrist.

B.A. Parker: This guy slashes at Joe, hits his hand. Slashes again, slices his arm. Then the third time, Joe grabs this guy's wrist, slams into the ground.

Joe: The knife came out.

B.A. Parker: According to Joe, it's then-

Joe: Only then--

B.A. Parker: -that one of the police officers who was behind that little door, rushes over, grabs the guy.

Joe: Says, "You can get up now, we got him."

B.A. Parker: At this point-

Joe: I've lost it a lot of blood.

B.A. Parker: -Joe was laying there bleeding from his face and his back and his hands. The cops are wrestling the madman, other passengers are fleeing. At one point a man rushes up to Joe and starts pressing napkins to his wounds. Eventually, the train gets to the next station.

Joe: The paramedics are waiting there.

B.A. Parker: They rushed into the train.

Joe: Lift me up off of the subway seat to put me on the stretcher. As they lift me up, I pass out. It's kind of like when you start nodding off while you're watching television where you're nodding off but you could still hear what's going on in the background.

B.A. Parker: Joe heard one of the officers who was on the train with him--

Joe: Calling me "likely".

Jad: "Likely", what does that mean?

B.A. Parker: He wasn't sure. Eventually, they get him to a hospital.

Joe: Bring me in this room and now all of a sudden is when the pain kicks in. It's the worst pain I've ever had. Like someone doused my head in gasoline and lit it on fire. Pain you can't even imagine.

B.A. Parker: They get him on morphine.

Joe: Jacked me up pretty good.

B.A. Parker: He ends up with like 80 staples in his body.

Jad: Wow.

Joe: Fast forward a little bit more. My day gets a lot better. My family's there, all of a sudden my wife and my kids get there.

B.A. Parker: In the midst of all this, at some point a police officer shows up in Joe's room, introduces himself.

Joe: He holds up a mugshot of the guy. He says, "Is this the guy that did this to you?" I said, "Yes." He says, "Oh, you're a hero. He killed four people last night."

B.A. Parker: Turns out his name was Maksim Gelman, who AKA after the fact is called the Butcher of Brighton Beach. But what was pretty astonishing about this, and Joe didn't know this at the time, but the police had been searching for this guy for the past 24 hours. There was a citywide manhunt for him. That morning Joe was attacked, the police had gotten a tip that Gelman was in the subway. They sent hundreds of officers down there looking for him.

Jad: Wait, so the police on the train knew-

B.A. Parker: Knew.

Jad: -but they say stayed behind the door?

B.A. Parker: Yes.

Jad: Oh, wow.

News clip: Take down, Maksim Gelman--

B.A. Parker: A few days later--

Joe: I'm doing all these interviews.

Newscaster: Joe, thanks for joining us. We really appreciate it. My pleasure.

B.A. Parker: He's got a black eye, gnarly scars all over his head.

Newscaster: Wow, oh boy.

B.A. Parker: In all these interviews--

Joe: They're calling me a hero.

Newscaster: A hero tonight--

Joe: I'm saying, "Well, I'm not a hero."

Newscaster: He still doesn't believe he's a hero.

Joe: Because I'm just a regular guy.

Newscaster: You're a hero.

Joe: I don't think I'm a hero.

Newscaster: No, I hear you. You're a normal guy. That's cool.

B.A. Parker: Instead, Joe's like--

Joe: The police are the heroes. The police are heroes. Like I said, I'm just grateful for the police and EMTs were down there to save me or else, like I said, I wouldn't be here right now. Those are the heroes, I'm not a hero.

B.A. Parker: Then a few things happened. After the news media moves on, after the two police officers on the train are praised by the mayor and the chief of police. After Joe testifies at Gelman's grand jury and gets him indicted. One day Joe is walking down the street, and he notices he's being followed.

Joe: I turned around quickly, and I'm like, "Can I help you?"

B.A. Parker: The man told Joe, "Listen, I was part of the grand jury and I've got to tell you something. When those police officers testified, one of them told us, while you were there, rolling around on the floor with Gelman--"

Joe: He said, "I started to come out, but I thought he had a gun, so I closed the door and stayed inside." After we heard that, we got furious. He goes, "The whole group of us we all looked at each other like, "Did he actually just admit to not coming out to do his job and leave the subway full of people with a spree killer?"" He said, "After that," he goes, "I had to tell you." I'm sitting here going, holy shit. They left a spree killer, a known spree killer, a spree killing fugitive on a subway with probably 20, 25 people.

B.A. Parker: When Joe heard this, he thought back to this moment when he was in the hospital recovering, when his sister came by. She's a cop. He told her that he heard one of the officers on the train say that he was "likely".

Joe: I said, "What does the "likely" mean?" She goes, "They called you "likely"?" I go, "Yes." She turned white. I go, "What?" She goes, ""likely" means likely to die."

B.A. Parker: : We reached out to the police officers who were on the train through their precinct but never heard back. Anyway, make a long story short, after meeting that guy on the street, after thinking back to what really happened that day--

Joe: That was when we decided to pursue legal action.


B.A. Parker: Joe decides to sue the police department. Problem is he couldn't get a lawyer to actually take his case to trial. He decides to represent himself.

Joe: I got this gigantic box of legal documents.

B.A. Parker: Starting pouring through his case.

Joe: If I had time before work, I was doing this before work. If I had time after work, I was doing this after work.

B.A. Parker: Eventually, Joe gets his day in court. Tells his whole story, and says the cops failed him, failed everybody on that train, and they should have to pay. The judge says Mr. Lozito's version of the story sounds highly credible and his version of events rings true.

Joe: Basically says, "You're telling the truth." Then goes on to say, "But based on blah, blah, blah, I have to dismiss this case."

Jad: Wait, what's the "blah, blah, blah, blah"? Why?

B.A. Parker: Well, here's what the judge said, "No direct promises or protection were made to Mr. Lozito, nor were there direct actions taken to protect Mr. Lozito prior to the attack. Therefore, a special duty did not exist."

Jad: What? I'm confused. What does that mean?

B.A. Parker: Well, she basically says the cops had no duty to protect Joe in that situation.

Jad: What?

B.A. Parker: Yes. This is where you get to my earlier question, what are the police for? Despite what you think, legally, it turns out protecting you is not their job.

Jad: Protecting me is not their job. How is that even possibly true? That's not true. Is that true? How is that true?

B.A. Parker: Well, it turns out it has to do with some legal precedents.

Joe: Castle Rock versusGonzales, was the big one.

B.A. Parker: To tell that story, I'm actually going to bring in some help. I'll come back. For now, here's producer Sarah Qari.

Sarah Qari: Yes. Hi. Okay. I talked to this woman, Kris McDaniel-Miccio.

Kris McDaniel-Miccio: An attorney and a law professor.

Sarah: In upstate New York. Where were you in life or in the world when you first got to know Jessica Lenahan?

Kris: I was the professor of law at the University of Denver, Sturm College of Law, and I was teaching law classes, and one of them was a seminar on domestic violence.

Sarah: One day she comes across this one case.

Kris: I was thunderstruck, completely shocked.

Sarah: It was a domestic violence case from Castle Rock, Colorado.

Kris: I'm reading this and I'm thinking, I need to get involved.

Sarah: She asked around, ended up finding the number of the woman who is at the center of the case.

Kris: I met her, we became friends.

Sarah: The woman's name is Jessica Lenahan.

Kris: She lived in the town of Castle Rock. She had three little girls.

Sarah: Who are 10, 9, and 7 years old.

Kris: Who she adored.

Sarah: Back then, this is June 1999, she'd gotten divorced from her husband-

Kris: Simon Gonzales.

Sarah: -and had even taken out a restraining order against him.

Kris: That protected her and the children, both.

Sarah: In this restraining order, there was this condition--

Kris: That he had to give a notice if he wanted to see the children.

Sarah: If he were to violate that order, the police would have to arrest him. A few weeks after she’d taken this restraining order-

Kris: June 22nd, 1999. The kids were playing outside from what she told me.

Sarah: -Jessica was in the house.

Kris: Do you know how kids are? They don't talk, they scream. They’re screaming at each other and they're playing and all of a sudden is very quiet. She looks out the window, no kids. She knew immediately Simon had taken them.

Sarah: Because has this history of being abusive-

Kris: She was beyond anxious.

Sarah: -she calls the police.

Kris: Repeatedly. She calls the police.

Sarah: At 5:50 PM.

Kris: At 7:30 PM.

Sarah: 8:30 PM.

Kris: 10:00 PM.

Sarah: She even later that night--

Kris: She goes in person to the Castle Rock police station at 12:40 AM on June 23rd.

Sarah: The thing was, Jessica worked at the police station as a custodian.

Kris: We're not talking about a police department the size of the Bronx, or the New York City Police Department. We're talking about a relatively small environment. People knew who she was. People knew that Simon was violent.

Sarah: Basically, the police told her-

Kris: Wait, wait, wait, he'll bring the kids back. Don't worry. He'll bring the kids back.

Sarah: -the kids are with their dad. It's not a big deal.

Kris: She was beside herself. Who else was she going to call? What was she going to do?

Jessica Lenahan: The police basically ignored the restraining order. I called and met with a Castle Rock police nine times over a 10-hour period.

Sarah: This is testimony from Jessica herself a few years later.

Jessica: I begged them to find my daughters, to bring them to safety and arrest Simon. My cries for help fell on deaf ears. The police went to dinner, look for a lost dog, and had three officers tending to a routine traffic stop.

Sarah: What happens is, finally at 3:00 AM that night--

Kris: Simon drove up to the Castle Rock police station.

Sarah: Got out of his truck.

Kris: He had a Glock, and he just started firing at the precinct.

Sarah: Oh, wow.

Kris: Why would anybody do that? Why would anybody do that? You know the reaction you're going to get.

Sarah: He wanted a confrontation.

Kris: He wanted to die. He knew that if you fired on a precinct, they were going to come out and they were going to start firing at him.

Sarah: The police come outside, open fire on Simon. He dies at the scene. Once the shooting stops, the police approached Simon's truck and opened the door.

Kris: At that point they saw three dead little girls.

Jad: Oh Christ. Jesus.

Sarah: Yes. Basically, the understanding is that Simon has killed them before arriving.

Jad: Wow.

Sarah: When Jessica arrived at the police station, she was taken into an interrogation room.

Kris: She was informed. She didn't get to see her children. They wouldn't let her see her children. She didn't get to see her children until they were laid out for the funeral.

Sarah: Eventually, after all this, Jessica decided to sue the Castle Rock police department as Joe Losito would with the NYPD over a decade later. The argument that her lawyers were making is that the police by not enacting this restraining order, by not seeking to arrest this man and protect Jessica and her children, by failing to do those things, they violated Jessica's 14th amendment right.

Jad: The 14th, again is--?

Sarah: The 14th amendment is "The state shall not deprive any person of life, liberty, or property without due process of law."

Jessica: I turned to the United States Courts to seek justice, to hold police accountable for illegally ignoring and demeaning me and my children in our time of need.

Kris: She files a petition in the federal district court.

Sarah: Which got kicked up to the 10th Circuit Court.

Kris: Then it went up to the Supremes.

Archival clip Supreme Court: We'll hear argument now number 042-78, the town of Castle Rock versus Jessica Gonzales.

Sarah: In 2005, Jessica's cases went before the Supreme Court.

Archival clip Supreme Court: Mr. Chief Justice, may it please the court.

Sarah: Very quickly in this case, the justices started asking these questions that were--

Archival clip Supreme Court: Mr. Rankle, how would you describe the property?

Sarah: They're just very technical.

Archival clip Supreme Court: What is the property your client has been deprived of?

Sarah: There's questions about property and if the restraining order is property.

Archival clip Supreme Court: That would be a property, if he had a private contract.

Sarah: There was a lot of discussion about-

Archival clip Supreme Court: The word "shall" enforce.

Sarah: What the word "shall" means.

Archival clip Supreme Court: Sometimes "shall" does mean "shall". Fine.

Sarah: But, eventually.

Archival clip RBG: If you compare it to--

Sarah: Ruth Bader Ginsburg zeroes in on the big question that we've been asking about the police's job, which is like, if we have restraining orders.

Archival clip RBG: Don't he police have an obligation to enforce them?

Archival clip Supreme Court: To my knowledge, we've never held that the police have an actionable obligation to enforce them.

Archival clip RBG: What does the restraining order do then?

Archival clip Supreme Court: It does two main things. First of all, it gives her rights against her husband, which are enforceable through contempt, and are enforceable by asking the police to enforce them. That is the interest of the restraining order gives her.

Archival clip RBG: But only to ask the police and they're not obliged to respond.

Archival clip Supreme Court: That is correct. She has the ability to ask the police to enforce the order, but the police have discretion under our reading of the statute.

Sarah: Then Justice John Paul Stevens just asks point-blank.

Archival clip JPS: Do the police have any duty at all, in your view?

Archival clip Supreme Court: I don't believe that the police have any sort of actionable duty. I think that what the statute--

Sarah: What you start to hear is this argument that's come up again and again at the court. That if you look at the 14th amendment or the US Constitution as a whole, there's nothing in there that says the police have to protect you from other people. In fact, that's not what the Constitution is for.

Kris: The Constitution is a negative rights constitution. Meaning, our Constitution is keep your laws off my body.

Sarah: The Constitution is there only to protect you from the state.

Kris: There's no affirmative duty on the part of the state to protect you.

Jad: It protects you from the police, theoretically, but it doesn't demand that the police protect you from your abusive spouse.

Sarah: Right. Exactly. Which is why in Jessica's case when John Stevens asked-

Archival clip JPS: Do the police have any duty at all, in your view?

Sarah: The lawyer for the police was like--

Archival clip Supreme Court: The police--

Sarah: No.

Archival clip Supreme Court: I don't believe that the police have any--

Kris: They didn't have to do anything. They didn't have to do a damn thing.

Archival clip Supreme Court: The case is submitted.

Kris: To be brutally frank, I knew we were going to lose. I knew it, but I didn't think we'd lose as badly as we did.

Sarah: In the 7-2 decision, the Supreme Court decided that the Castle Rock police had no duty to enforce the restraining order against Jessica's ex-husband. The two dissenting judges were John Paul Stevens and Ruth Bader Ginsburg. We reached out to the Castle Rock police department to interview them about Jessica Gonzales's case, but they declined.

Jessica: In 2005, the United States Supreme Court threw out my case. The court also sent a message to police officers all over the country,

that they can ignore their responsibilities to enforce restraining orders and that they can get away with it.

Kris: When she lost, it was as if her children had been murdered again.

Jessica: I went from being victimized by Simon to being victimized by Colorado and Castle Rock.

Kris: It was as if she experienced it all over again.

Jessica: I felt so deceived. I have grown up thinking that my government was bound by the laws, and then it was just and fair. But all of a sudden, when I needed you the most, you turned you back on me and my family. Obviously, the years after my tragedy have been hell. It's really paralyzing.

Sometimes the pain overwhelms me, and I have to step away from my own life just to cope.

Kris: They were three beautiful little girl who didn't deserve this. No child deserves this. No woman deserves this.

Jessica: Our system is broken, and I have paid the price for its flaws.

B.A. Parker: I have to say, talking to other lawyers about this case-

Jad: Again, this is B.A. Parker.

B.A. Parker: -first of all, all these lawyers talk about this case in really quiet, somber tones.

Jad: Like it's a dark day for them.

B.A. Parker: It's a really dark day, but it was also an "I get it".

Jad: What do you mean?

B.A. Parker: They understand. They don't agree with the policy, but they understand why the Supreme Court made that decision. Because they say if the Constitution says the police must protect you, well, suddenly that's going to incentivize the police to be a lot more heavy-handed. Then we'd have to arrest for jaywalking, we'd have to arrest for an open container, we'd have to arrest for everything. You would have essentially a police state.

Jad: Is what you mean that they see Jessica Gonzales as, in a utilitarian sense, she's the cost you pay to preserve our safety from over-policing?

B.A. Parker: Yes.

Jad: Yes. Now that I think about that-- Are you convinced by that argument, that there is that slippery slope that they seem to be worried about?

B.A. Parker: I mean, his idea that we either get discretion, meaning police make all their own subjective decisions, and how to enforce the law. "Hello, racial bias." Or we get a world in which they have an obligation to enforce every law across the board, but you get a police state.

I don't understand why those have to be the two choices. That just seems bananas to me. I feel there is some medium and I don't understand why the law can't figure that out.

Jad: Well, is there some kind of middle path that says the police can have discretion, but they do have to protect us in certain cases?

B.A. Parker: Well, sort of. There's literally this special path.

Jad: That's coming up right after the break.


Jad: Jad. Radiolab. We are back with B.A. Parker and Sarah Qari. We just heard two different stories from two different people where the police failed to protect either of them, and we learned that according to the Constitution, police don't have to. They have no constitutional duty to either of them.

Sarah: Right, and you were wondering if there is some middle path to the police having to protect us.

Jad: Yes.

Sarah: In that Supreme Court case, Scalia, in his opinion hints at that. He references these cases in the lower courts that talk about this idea of a special relationship.

John Goldberg: Hello.

Sarah: Hello. Hi. How are you?

John: I'm good. How are you?

Sarah: I don't know. When I first encountered this term "special relationship" I was like, "What the heck? What does that mean?" I called this guy, John Goldberg.

John: Professor at Harvard Law School. My main area of interest and expertise is tort law.

Sarah: Real quick, tort law is the universe of law that governs what happens when one person hurts another person. In tort law-

John: We have a general rule which says, people aren't obliged to help you. It's your problem. It's not theirs.

Sarah: The classic example is, if you're walking down the street, and-

John: You see somebody in need of rescue, and you could easily and safely rescue them, but you don't.

Sarah: Legally, that's totally fine. You don't have to do anything for them.

Jad: What? That's horrible.

John: Right. Morally, you've probably done something horribly wrong, but legally, you're not subject to liability.

Jad: See, okay, here's where I find myself thinking all about the limitations of the law.

Sarah: Yes, totally.

John: The idea here is, we may think it's virtuous and heroic even, for someone to step in and rescue another person from some danger, but do we really think that if they don't do that they should be paying thousands or millions of dollars to the victim because they chose not to?

Sarah: I don't know, man, I don't get it either. There is an exception to that in the law.

John: What the courts have said is, if there's the right kind of special relationship between the person who's at risk and the person who could rescue them, there might be a legal duty to protect or rescue.

Sarah: If two people are in a special relationship, then one of them has to protect the other.

John: A classic example would be, if you are a hotel and you invite people to come and stay in your hotel, as all hotels do, you need working locks on the door to make sure nobody breaks in, in the middle of the night. You have to have a well-lit parking lot, or maybe even a security guard, and that's all premised on the idea that a hotel or a motel or an inn, owes it to its guests by virtue of their relationship.

Sarah: John says you'll also see this special relationship status in transit industries.

Jad: Airlines, taxi cabs, things like that.

Sarah: Or you'll see it in these relationships between a guardian and another person.

Jad: Between prisoner, parents and minor children. Surely police officer-citizen has got to be the right kind of special relationship. But along come the courts and say, "No, actually not."

Sarah: However, the courts have said that there are times when the police do have a special relationship. If certain conditions are present, then maybe yes, the police do have an obligation to protect you.

Jad: What are the boxes, you need to check in order to have a "special relationship" with the police so that they can protect you?

Alexandra Lahav: Well, most states have a rule that's similar to the one that you're seeing in New York.

Sarah: This is Alexandra Lahav.

Alexandra: Professor of law at the University of Connecticut.

Sarah: She told me that in a lot of different places around the US, it comes down to the very same criteria that Joe Lozito was being held to.

Alexandra: The rule in New York--

Sarah: It's this four point test. The first of which is that there has to be direct contact between the person and the police.

John: Someone goes to the police and says, "You got to help me."

Sarah: The second thing is, the police then have to respond to you and say-

John: "Okay, we're on it."

Alexandra: Some kind of promise to this individual, "I will protect you". Then-

Sarah: Number three-

Alexandra: You need knowledge on the part of the officers that not acting could lead to harm.

Sarah: The police also have to be aware that if they don't do anything that the person will suffer.

Jad: That seems getting into the head of the police.

Sarah: Yes, how could know that kind of thing?

Alexandra: Now you're seeing why this test is so hard to meet. Then you need an addition.

Sarah: The fourth thing is the most mind boggling, which is the person asking for protection.

Alexandra: They believe, justifiably, that the police will protect them.

Sarah: They have to prove that they relied on the police's protection.

John: They've acted differently, exactly. They changed their behavior, because they were like, "Oh, phew. Now I know, I'm safe. I can go out, but I wouldn't have gone out otherwise."

Sarah: The way the courts look at these four criteria is, all four of them have to be checked off.

John: Now we've got the right kind of special relationship.

Sarah: In Joe Lozito's case, he just didn't check those boxes.

John: Well, very few people do.

Jad: Wow. God, what a minefield.

Sarah: If you think about it, in order for Joe Lozito to have checked those boxes, he would have had to one, walk up to the police and say, "Police, I need your help, I'm about to get stabbed." Then two, the police would have needed to say, "Yes, we will help you," because three, "We know that to not help you would definitely result in harm to your face and your back and your hands." Then four, Joe would have then had to say, "Great, I will now relax myself and act differently in the knowledge that you will help me."

Jad: That is insane. That's insane. It brings me back to Parker's original question, which is, if protecting people on the streets is so damn hard to make legally binding because it's not their job, then what is their job?

Barry Friedman: Now you come to the fundamental problem.

Sarah: This is Professor Barry Friedman.

Barry: Law professor at New York University School of Law, and I'm the Faculty Director of the policing project there.

Sarah: Is there anywhere in the country that has really clear laws for what the local or state police is supposed to be doing or what they're not supposed to be doing.

Barry: No. It is remarkable. I was interested in policing for years and years and this is a light bulb that went off in my head finally and then I started to see it everywhere that I looked. What you get is, you might get a drone statute in one state, and you'll get a statute about chokeholds in another state, and you'll get a statute about license plate readers in another state but it's all totally pinprick. What you will never, ever, ever find is a comprehensive code of police conduct. Doesn't exist.

Sarah: That's so strange. Not even in, I don't know, state constitutions or something? Maybe that's a far cry.

Barry: Listening to is making me so happy, because you're listening and the veil is coming off of your eyes, and it happened to me. No, this is a question that we oddly don't ask much about the police but ask in most other areas of government. If you think about it, whether it's the FDA or your local zoning board, we don't usually think of government getting to do things without some formal permission, a statute or a constitutional authorization.

Sarah: Wait, so we've just collectively as a society being like, "Hey, you're a cop," and they're like, "Oh, okay. What does that mean?" "I don't know. Just do what you got to do." They're like, "Oh, all right." Then that's it?

Jad: Now, this is Jad in the present. To be fair, we called up a bunch of active duty officers-

[phone rings]

Officers: Hello.

Jad: -from all over the country. From South Carolina.

Terry Cherry: Recruiter for the city of Charleston police department.

Jeremiah Johnson: Sworn police officer in the state of Connecticut.

Jad: From Illinois, Florida.

Luke Bonkiewicz: Police officer with the Lincoln police department in Nebraska.

Jad: When we asked them like what do they think their job is? They said "Well, to protect people."

Luke: Certainly. That's part of it, intervening and protecting.

Jad: Again and again. They said, "Yes.

Jeremiah: Helping people, as cliché as that sounds.

Jad: Our job is to protect and serve."

Chase Wetherington: We want to protect people's stuff. We want to protect people against burglaries.

Luke: Trying to protect women from abusers.

Jeremiah: We have a natural duty to protect.

Aaron Landers: What most police officers want to be doing is standing between the general public and violence.

Terry: You want to do your best to help other people and keep them out of harm's way.

Aaron: That's why we're doing this.

Jad: In talking to them about where that idea actually comes from-

Jeremiah: Sure. When you talk about duties.

Jad: -where is it written down?

Jeremiah: That gets into the code of ethics for policing, or mottos.

Jad: It's ethics guidelines, it is mottos, like, protect and serve. It's city charters that created police forces in those cities, charters that say things like, "Protect the peace, maintain order, enforce the law." This is something that came up in Sarah Qari's conversation with Barry Friedman, that the actual mandates for what police are supposed to be doing are internal to the police departments themselves.

Barry: The problem is there's a lack of democratic control. We don't use the ordinary ways that we do everything else in government with regard to the police. We don't pass statutes. We don't pass regulations. We don't then because we have those statutes do sufficient auditing to make sure that they're being followed. The reason it's hard to hold people responsible today is because we're missing clear rules on the front to tell them what we expect them to do.

Sarah: I guess in that void, it seems like what happens is it leaves the courts to debate over what those rules are and how to draw lines, I guess?

Barry: Yes, and they're terrible at it. Again, if you think about it, the Constitution is kind of a weird way to run anything in government. It's a framework for government but all it is is the framework. Then the framework gets filled in with statutes. We have environmental protection statutes, and we have workplace safety statutes but we don't have policing statutes. Basically, the courts are left to try to hold people accountable or not under the vaguest of terms. That's why it's hard to hold people accountable and why people get frustrated.

The odd thing is, they keep doubling down on that by creating more mechanisms on the back end to try to hold people responsible, and don't notice that the whole problem is the vacuum, as you described it, on the front end. You've puzzled through it, Sarah, in a very logical way and everywhere you turn looking for logic, you find a twist. That's problematic. What bothers me about the moment we're in, there many bosses of some things about the moment we're in, but people are walking around very much with a bad apples view of the problem, when the truth of the matter is that the orchard just isn't regulated.

Jad: Well, let me ask you a bigger question. I'm going to ask this to Parker. If it's not legally the police's job to protect us, then whose job is it?

B.A. Parker: I don't know.

Jad: This sounds so sad.

B.A. Parker: It is. There's this one part of the story I haven't told you yet that gives me a little hope. If you think back to Joe Lozito, the guy got stabbed in the subway. It wasn't just Joe, the cops and the stabber round the train that day. This was rush hour. There were a bunch of other people on the train. When the stabber lunged out at Joe, they got out of the way. They were like, "Absolutely not. I want no part of this, we're going to the next car." Took a step back, just like the cops did. There was one guy on the train who didn't step back. He took a step forward.

Alfred Douglas: My name is Alfred Douglas and I was originally born in Jamaica. I came here at 26 years old and I've been living in New York ever since.

B.A. Parker: What was it like to witness something like that, to see someone get attacked?

Alfred: Miss, I could tell you that, I'm 58 years old. I've never seen somebody so viciously slashed before.

B.A. Parker: Alfred was on the 3 train with Joe.

Alfred: I was just standing there.

B.A. Parker: As the train started moving-

Alfred: This guy came from the back of the train. Once he walked in, my eyes was fixed on him, because he didn't look right. When he went and sit beside this woman, the woman get up and then he move and went on across from Joe.

B.A. Parker: All of a sudden-

Alfred: -He just lunged forward, jump on to Joe and then start attacking Joe. Joe is all covered in blood, all the passenger that was up the front, they start running to the back of the car. While the tussle was going on, the police that was in the motorman's cabin, he opened the door and looked out, and then they went back in and--

B.A. Parker: Hid. Just hid in there as Joe was getting stabbed.

Alfred: After Joe Lozito took him down and they were on the ground, the police came up the motorman car and grab him. Maksim Gelman, fighting the cop. By the time Joe couldn't see. His head was covered in blood. You understand me? He was just crying for his wife, his kids, and whatever. I said to myself, "We got to help him." I kneeled in his stomach and tried to get control of his arm because the officer, have his gun in one hand and trying to control him with one hand. I see that he needed help. I went there, and I kneeled down on him.

After he cuff him up now, the train line come to a stop. When I look at Joe, I've never seen a slash like that before. The back of his neck, it was just jumping like pump, blood just pumping out of him. It seemed like eternity because, Joe, he thought he was going to bleed out. I thought he was going to bleed out too. I asked if anybody have a tissue or a napkin, but before I got a tissue and a napkin, I was applying pressure to his neck and then somebody came with a piece of napkin and I use the napkin to apply the pressure. That's just me. I was raised by my grandmother, I was taught to help when you see a need for help.

I just did what I thought that was right at the time.

B.A. Parker: Had you heard that Joe sued the city?

Alfred: No, I haven't heard anything about that. How did that go?

B.A. Parker: The judge threw the case out citing that the police has no special duty to protect him.

Alfred: Yes? The transit cop that walk the beat down there didn't have no duty to protect the consumers?

B.A. Parker: Essentially, yes.

Alfred: Damn. That's news to me. Why do they have the police in New York then if they ain't got no duty to protect us?

B.A. Parker: That's what I'm trying to figure out.

Alfred: We're paying our taxes. That's what I thought they were employed for. This is new to me, I didn't know the police doesn't have a duty to protect the citizens of a country or a state. I don't. I got to process this. I didn't know something like this exists. If this is the case, they should free up the gun laws in New York. Everybody could have that protection. I was living all my life, all this time, thinking that the police are there to serve and to protect. If they see something unlawful happening, it's their duty to be the judge and the jury on the spot.

I can't see how they could say that it wasn't their job to protect the citizens. I don't know. It's a strange world, man. I got to process this, and I got to let my kids know. Whoever will listen to me, I got to let them know about this, because this is news to me.

B.A. Parker: It takes two, a badly wounded guy and a guy with some napkins to defeat a serial killer. I say this fully aware that if I were in a situation like that, I don't know if I would jump in.

Jad: Oh, yes. Hell, no.

B.A. Parker: The kindest thing I've done on the subway was in February, I saw a girl crying and I gave her a tissue and now that COVID's happened, I know that I won't do that anymore.


Jad: You just give her an empathetic frown face across the way?

B.A. Parker: Like, "I'm sorry, ma'am."

Jad: "I'm sorry. I'm going to leave the Kleenex right over here and you can come and get it."

Special thanks to April Hayes and Katia Maguire for their documentary Home Truth about Jessica Lanahan; To cracked.com for sending us down this rabbit hole; Caroline Bettinger-López; Jeff Grimwood; Kristie Lopez; Anthony Herron; Mike Wells; Keith Taylor; and to the officers that we spoke to for this piece, Chase Wetherington; Terry Cherry; Luke Bonkiewicz; Jeremiah Johnson; and Aaron Landers. I'm Jad Abumrad. Thanks for listening.



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