1

A supreme court decision says police do not owe a personal duty to individuals.

However, police do have an oath of office and duty to the laws of the state.

If a police make an unlawful arrest: In Texas it is known as 'unlawful restraint'. Unlawful restraint is a class A misdemeanor unless the victim is recklessly exposed to substantial risk of injury which then makes the crime a third degree felony. For example, if an officer points a firearm at the unlawfully arrested person that would be a felony.

Other police on the scene are backup and immune from prosecution because they were merely there and did not physically make the arrest.

Question 1: Are any police on the scene responsible for reporting the crime of unlawful restraint which has become a felony in their presence?

Question 2: Would the police in not reporting the crime be implicating more involvement than mere presence and thereby threaten their immunity stance?

If the police do not owe a duty to protect the person being unlawfully restrained, it would seem they still owe a duty to uphold the laws of the state like they would for the crimes of jaywalking, driving without a seat belt, or rape.

This seems pretty complicated to me. If the police do not owe a duty to the citizen to arrest another officer for violating the law do they at least owe a duty to the law to make a criminal complaint regarding the violation they witnessed? And if so, and if they do not, would they be more accountable than the populace who are required by law to report felonies?

Texas Penal Code - PENAL § 38.171. Failure to Report Felony

5

The statute in question (which is unusual and not part of the law in most U.S. states) is as follows:

(a) A person commits an offense if the person:

(1) observes the commission of a felony under circumstances in which a reasonable person would believe that an offense had been committed in which serious bodily injury or death may have resulted;  and

(2) fails to immediately report the commission of the offense to a peace officer or law enforcement agency under circumstances in which:

(A) a reasonable person would believe that the commission of the offense had not been reported;  and

(B) the person could immediately report the commission of the offense without placing himself or herself in danger of suffering serious bodily injury or death.

(b) An offense under this section is a Class A misdemeanor.

There is no indication that violation of this section gives rise to civil liability. Notably, the U.S. Supreme Court in the case of Castle Rock v. Gonzalez came to its conclusion that there was no civil liability of a police department or police officers for failure to enforce a restraining order in the face of language in a state statute whose plain language fairly clearly created a mandatory duty to that effect.

The offense of unlawful restraint Texas Penal Code § 20.02 is as follows:

(a) A person commits an offense if he intentionally or knowingly restrains another person.

(b) It is an affirmative defense to prosecution under this section that:

(1) the person restrained was a child younger than 14 years of age;

(2) the actor was a relative of the child;  and

(3) the actor's sole intent was to assume lawful control of the child.

(c) An offense under this section is a Class A misdemeanor, except that the offense is:

(1) a state jail felony if the person restrained was a child younger than 17 years of age;  or

(2) a felony of the third degree if:

(A) the actor recklessly exposes the victim to a substantial risk of serious bodily injury;

(B) the actor restrains an individual the actor knows is a public servant while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;  or

(C) the actor while in custody restrains any other person.

(d) It is no offense to detain or move another under this section when it is for the purpose of effecting a lawful arrest or detaining an individual lawfully arrested.

(e) It is an affirmative defense to prosecution under this section that:

(1) the person restrained was a child who is 14 years of age or older and younger than 17 years of age;

(2) the actor does not restrain the child by force, intimidation, or deception;  and

(3) the actor is not more than three years older than the child.

In practice, almost any restraint by a police officer would not obviously be outside the immunity for a lawful arrest sufficient to give rise to the duty to report a felony. Also, the person who decides whether to press charges is the prosecuting attorney who has a strong long term strategic interest in maintain a positive relationship with law enforcement and who often subjectively views law enforcement as his client even though this is the correct as a matter of legal doctrine.

Question 1: Are any police on the scene responsible for reporting the crime of unlawful restraint which has become a felony in their presence?

In general law enforcement may have a duty under department policy as a matter of employment law, but there is no general legal duty for a police officer to report a crime committed in their presence. Law enforcement officers, like prosecutors have wide discretion over whether they will choose to enforce crimes in the U.S.

But, since Texas has a mandatory reporting law, this comes down more to a matter of interpretation and a restraint by an officer would almost never never give rise to a felony due to the privilege for an arrest. Also, it isn't at all obvious that a law enforcement officer has to report the crime to anyone but him or herself to satisfy the requirements of the law, and there is no duty for a law enforcement officer to act upon a report of a felony.

Question 2: Would the police in not reporting the crime be implicating more involvement than mere presence and thereby threaten their immunity stance?

Generally not. To have liability personally, the law enforcement officer would have to be a co-conspirator. Usually conspiracy liability would require an affirmative action in support of the illegal action and not merely inaction in the form of failing to report a crime.

Police have qualified immunity from civil liability for any act that is not a clearly established violation of a constitutional right.

If the police do not owe a duty to protect the person being unlawfully restrained, it would seem they still owe a duty to uphold the laws of the state like they would for the crimes of jaywalking, driving without a seat belt, or rape.

This is mistaken. Law enforcement officers have no legally enforceable duty to uphold any laws. They may have a moral duty to do so, and they may have a strong employment relationship pressure to do so, but a law enforcement officer faces neither civil nor criminal liability for merely failing to enforce a criminal law when they know a crime has been committed.

If the police do not owe a duty to the citizen to arrest another officer for violating the law do they at least owe a duty to the law to make a criminal complaint regarding the violation they witnessed?

Arguably, there is a criminal law duty to report a clear felony, but since the duty is only to report the matter to a law enforcement officer and they are a law enforcement officer, it isn't clear that this statute applies at all. A report of a suspected felony is not a criminal complaint.

And if so, and if they do not, would they be more accountable than the populace who are required by law to report felonies?

No. As noted above, they are arguably less accountable than members of the general public.

2

The Police will usually turn a blind eye and not report anything that will implicate themselves or one of their own. While it is assumed that they would follow the law and be morally just in their enforcement. History has shown it is not like that. Police very rarely get charged with crimes, even less often get convicted of crimes even with video evidence of their crimes.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.