Jun 17, 2022

No Special Duty

Since the massacre that took the lives of 19 schoolchildren in Uvalde, Texas, people across the world began to ask versions of one question: why did police wait outside the door instead of protecting the kids?

It's not the first time this question has come up. Two years ago, as she watched police respond to the protests that followed the death of George Floyd, Producer B.A. Parker wondered: what are police for? With the help of our Producer Sarah Qari, she found that the United States’ Supreme Court had given this a most consequential and bewildering answer.

We decided to re-air this episode to shed light on how a case from 2005 upended our assumptions about the role police are meant to play in our lives.

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[RADIOLAB INTRO]

 

LULU MILLER: Hi, I'm Lulu Miller. This is Radiolab. We are just a few weeks out from the shooting in Uvalde, Texas, and even more recent tragedies like the drowning of Sean Bickings, a 34-year-old man in Tempe, Arizona, who drowned just four days later as three police officers looked on, refusing to intervene as he pleaded for help. One of them saying, "Okay. I'm not jumping in after you."

LULU: Alongside all the anger and the grief, we've noticed this question bubbling up on social media and beyond about the role of police. What is their obligation to us, their duty? And as we've seen these questions swirling around, we've been thinking about this piece we played a while ago that takes on this question in a deep, deep way. We wanted to play it for you today.

JAD ABUMRAD: Hey, I'm Jad Abumrad. This is Radiolab. Quick warning: this episode contains strong language and graphic violence, so if you're 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.: Oh boy. All right.

JAD: Do you know—I mean, do you have a sense of where you want to start?

B.A.: Mm-hmm. Sure.

JAD: Okay.

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

[PROTEST SOUND CLIP]

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

B.A.: Feeling kind of helpless.

JAD: ... and just spending a lot of her time thinking.

[NEWS CLIP: Defund the police department ...]

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

JAD: Hmm. You mean like what is their job?

B.A.: Yes. Like, 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. I mean, that felt pretty clear to me. Police are supposed to enforce the law, yes, but more than that ...

[VIDEO CLIP: Police are sworn to protect and serve.]

JAD: They're supposed to protect us.

[VIDEO CLIP: To protect and serve.]

JAD: That's what they say, right? I mean, it's the thing you see written on the sides of their cars: "Protect and serve."

[VIDEO CLIP: To protect and serve the people.]

JAD: Now do they always do that? No. But that's clearly their job.

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

[VIDEO CLIP: If you've ever been on the internet. And I mean, you're here right now ...]

B.A.: ... of this guy.

[VIDEO CLIP: My name is Joe Lozito.]

B.A.: Named Joe Lozito. And he's got a bald head, trim goatee. And in this video, he basically just tells this ...

[VIDEO CLIP: ... insane ...]

B.A.: ... wild story ...

[VIDEO CLIP: You're going to die! Whips out an eight-inch knife.]

B.A.: ... of this thing that happened to him, that took this question that I had of, like, what do the police do, and just sort of like, blew it open.

JAD: Hmm. Tell me more.

B.A.: So I saw this video.

JAD: Okay.

B.A.: And it was about what happened to him. And so I immediately—I went and I—like, I searched for him and messaged him.

JOE LOZITO: Okay.

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

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

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

JOE LOZITO: Yeah. Oh shit. I didn't mute my TV. Hold on. Fuck, I forgot about that.

B.A.: [laughs]

JOE LOZITO: Okay. How about that? Is that better?

B.A.: Yeah, I can't hear it now.

JOE LOZITO: All right.

B.A.: So let's go back to February of 2012. 2011, sorry.

JOE LOZITO: 2011. Yeah, so February of 2011, February 12. Started like a regular day.

[ALARM CLOCK BEEPING]

B.A.: 6:00 a.m. Joe got up.

JOE LOZITO: I'm a creature of habit.

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

JOE LOZITO: Got my coffee.

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

JOE LOZITO: Working in New York City. So drove to New Jersey, got out on the train, took a nap.

B.A.: Woke up in Manhattan.

JOE LOZITO: Penn Station.

B.A.: Made his way downstairs.

JOE LOZITO: Where the subways are.

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

JOE LOZITO: Got out on the first train, which is the 3 train.

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

JOE LOZITO: In the very first seat.

B.A.: So Joe's basically, like, at the very front of the train. A few more people got in.

JOE LOZITO: And if you've taken the subway before, you know the doors are open for 10 seconds or whatever.

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

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

[ARCHIVE CLIP: Ladies and gentlemen, we are delayed ...]

B.A.: And they walked up to the very front of the car where there's this little door.

JOE LOZITO: To the motorman's compartment.

B.A.: It's where the driver is. And the two officers, they go in there.

JOE LOZITO: Which I thought was weird but whatever, it's New York. Who the hell knows? Finally, the doors close. We start moving. But we're crawling as if a single person was behind the entire subway and pushing it. It was that slow.

B.A.: Hmm.

JOE LOZITO: Which again was a little weird, but it was only gonna get weirder.

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

JOE LOZITO: He was a little dirty.

B.A.: Standing a few feet away from Joe. And this guy went over to the door where the officers and the driver were.

JOE LOZITO: He starts banging on the door.

B.A.: Starts yelling.

JOE LOZITO: "Let me in!"

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

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

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

JOE LOZITO: And with that, the man walks back without incident.

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

JOE LOZITO: Scared to death, like he was gonna shit his pants.

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

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

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

JOE LOZITO: Looking over his shoulder.

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

JOE LOZITO: And I look up at him.

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

JAD: Oh my God!

JOE LOZITO: Under my left eye.

B.A.: And Joe said ...

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

B.A.: He lunged at this guy's legs.

JOE LOZITO: Ended up wrapping my arms around his waist. And while I was taking him down ...

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

JOE LOZITO: But I was able to get him down.

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

JOE LOZITO: But even with that, he still had the knife in his hand. And now all of a sudden, he's flailing up with the knife.

B.A.: And Joe's got his hands out.

JOE LOZITO: Trying to catch his wrist.

B.A.: And this guy slashes at Joe, hits his hand. Slashes again, slices his arm. And then the third time, Joe grabs this guy's wrist, slams it to the ground.

JOE LOZITO: And the knife came out.

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

JOE LOZITO: And only then ...

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

JOE LOZITO: And says, "You can get up now. We got him."

B.A.: At this point ...

JOE LOZITO: I've lost a lot of blood.

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

JOE LOZITO: And the paramedics are waiting there.

B.A.: And they rush into the train.

JOE LOZITO: Lift me up off of the subway seat to put me on the stretcher. And as they lift me up, I pass out. And it's kinda 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.: And Joe heard one of the officers who was on the train with him ...

JOE LOZITO: Call me "Likely."

JAD: "Likely." What does that mean?

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

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

B.A.: They get him on morphine.

JOE LOZITO: Jacked me up pretty good.

B.A.: He ended up with, like 80 staples in his body.

JAD: Wow.

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

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

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

B.A.: Turns out his name was Maksim Gelman who a.k.a., after the fact is called, like, the Butcher of Brighton Beach.

JAD: Oh!

B.A.: But what's 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. Like, there was a city-wide manhunt for him. And that morning Joe was attacked, the police had gotten a tip that Gelman was in the subway. And so they sent hundreds of officers down there looking for him.

JAD: Wait. So the police on the train knew?

B.A.: Knew.

JAD: But they stayed behind the door?

B.A.: Yes.

JAD: Oh wow!

[NEWS CLIP: Take down. Maksim Gelman ...]

B.A.: And a few days later ...

JOE LOZITO: I'm doing all these interviews.

[NEWS CLIP: Joe, thanks for joining us. We really appreciate it.]

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

[NEWS CLIP: Wow. Oh boy. Oh boy.]

B.A.: And in all these interviews ...

JOE LOZITO: They're calling me "Hero."

[NEWS CLIP: "A hero tonight, Jeff.]

JOE LOZITO: And I'm saying, "Well, I'm not a hero."

[NEWS CLIP: He still doesn't believe he's a hero.]

JOE LOZITO: Because I'm just a regular guy.

[NEWS CLIP: You're a hero.]

[NEWS CLIP, Joe Lozito: No, I don't think I'm a hero.]

[NEWS CLIP: No, I hear you. You're a normal guy, that's cool.]

B.A.: Instead Joe's like ...

[NEWS CLIP: The police are the heroes.]

JOE LOZITO: The police are heroes.

[NEWS CLIP: Like I said, I'm just grateful for all the police and the EMTs that were down there to save me or else, like I said, I wouldn't be here right now.]

JOE LOZITO: Those were the heroes. I'm not a hero.

B.A.: But 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 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 been followed.

JOE LOZITO: I turn around quickly and I'm like, "Can I help you?"

B.A.: And the man told Joe, "Listen, I was a part of that grand jury and I've gotta 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 LOZITO: "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." And I'm sitting here going, like, holy shit! They left a spree killer, a known spree killer, a spree-killing fugitive on a subway with probably 20 people, 20-25 people.

B.A.: When Joe heard this, he thought back to this moment when he was in the hospital recovering. It was when his sister had come by. And she's a cop, and he told her that he heard one of the officers on the train say that he was "Likely."

JOE LOZITO: I said, "What does 'Likely' mean?" And she goes, "They called you 'Likely?'" And I go, "Yeah." And she turned white. And I go, "What?" She goes, "'Likely' means 'Likely to die.'"

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

JOE LOZITO: That was when—that was when we decided to pursue legal action.

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

JOE LOZITO: Got this gigantic box of legal documents.

B.A.: Started pouring through his case.

JOE LOZITO: 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.: And 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. And the judge says, "Mr. Lozito's version of the story sounds highly credible and his version of events rings true."

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

JAD: Wait, what's the "Blah blah blah blah blah?" Why?

B.A.: Well, here's what the judge said, "No direct promises of 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.: Well she basically says, the cops had no duty to protect Joe in that situation.

JAD: What?

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

JOE LOZITO: Castle Rock v Gonzalez. That was the big one.

B.A.: And to tell that story, I'm actually gonna bring in some help. I'll come back, but for now here's producer Sarah Qari.

SARAH QARI: Yes, hi! Okay, so I talked to this woman, Kris McDaniel-Miccio.

KRIS MCDANIEL-MICCIO: An attorney and a law professor.

SARAH: In upstate New York.

KRIS MCDANIEL-MICCIO: Mm-hmm.

SARAH: So where were you, like, in life or in the world, I guess, when you first got to know Jessica Lenahan?

KRIS MCDANIEL-MICCIO: I was a 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: And one day she comes across this one case.

KRIS MCDANIEL-MICCIO: And I was thunderstruck. Completely shocked.

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

KRIS MCDANIEL-MICCIO: So 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 was at the center of the case.

KRIS MCDANIEL-MICCIO: And I met her. We became friends.

SARAH: The woman's name is Jessica Lenahan.

KRIS MCDANIEL-MICCIO: She lived in the town of Castle Rock. She had three little girls.

SARAH: Who were ten, nine and seven years old.

KRIS MCDANIEL-MICCIO: Who she adored.

SARAH: And back then—this is June, 1999—she was getting a divorce from her husband.

KRIS MCDANIEL-MICCIO: Simon Gonzalez.

SARAH: And had even taken out a restraining order against him.

KRIS MCDANIEL-MICCIO: That protected her and the children. Both.

SARAH: And in this restraining order, there was this condition ...

KRIS MCDANIEL-MICCIO: That he had to give notice if he wanted to see the children.

SARAH: If he were to violate that order, the police would have to arrest him.

KRIS MCDANIEL-MICCIO: That's right. So ...

SARAH: A few weeks after she'd taken this restraining order ...

KRIS MCDANIEL-MICCIO: June 22, 1999. The kids were playing outside, from what she told me.

SARAH: Jessica was in the house.

KRIS MCDANIEL-MICCIO: And you know how kids are: They don't talk, they scream.

SARAH: Mm-hmm.

KRIS MCDANIEL-MICCIO: So they're screaming at each other, and they're playing. And all of a sudden it's very quiet. She looks out the window. No kids. She knew immediately Simon had taken them.

SARAH: Because he has this history of being abusive.

KRIS MCDANIEL-MICCIO: She was beyond anxious.

SARAH: She calls the police.

KRIS MCDANIEL-MICCIO: Repeatedly, she calls the police.

SARAH: At 5:50 p.m.

KRIS MCDANIEL-MICCIO: At 7:30 p.m.

SARAH: 8:30 p.m.

KRIS MCDANIEL-MICCIO: 10:10 p.m.

SARAH: And she even later that night ...

KRIS MCDANIEL-MICCIO: She goes in person to the Castle Rock police station at 12:40 a.m. on June 23.

SARAH: And the thing was, Jessica worked at the police station as a custodian.

KRIS MCDANIEL-MICCIO: And 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. And people knew who she was. And people knew that Simon was violent.

SARAH: Basically the police told her ...

KRIS MCDANIEL-MICCIO: "Oh, you know, he'll bring—wait, wait, wait. He'll bring the kids back, don't worry. He'll bring the kids back."

SARAH: Like, the kids are with their dad. It's not a big deal.

KRIS MCDANIEL-MICCIO: And she was beside herself. Who else was she gonna call? What was she gonna do?

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

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

[ARCHIVE CLIP, Jessica Lenahan Gonzales: 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, looked for a lost dog, and had three officers tending to a routine traffic stop.]

SARAH: And what happens is, finally at 3:00 a.m. that night ...

KRIS MCDANIEL-MICCIO: Simon drove up to the Castle Rock police station.

SARAH: Got out of his truck.

KRIS MCDANIEL-MICCIO: I think he had a Glock. And he just started firing at the precinct.

SARAH: Oh wow.

KRIS MCDANIEL-MICCIO: Why would anybody do that? Why would anybody do that? You know the reaction you're gonna get.

SARAH: Like, he wanted a confrontation?

KRIS MCDANIEL-MICCIO: He wanted to die. He knew what—if he fired on that precinct, they were gonna come out and they were gonna start firing at him.

SARAH: The police come outside, open fire on Simon. He dies at the scene. And once the shooting stops, the police approach Simon's truck and open the door.

KRIS MCDANIEL-MICCIO: And at that point they saw three dead little girls.

JAD: Oh Christ. Jesus!

SARAH: Yeah. Basically, the understanding is that—that Simon has killed them before arriving.

JAD: Whoa.

SARAH: And when Jessica arrived at the police station, she was taken into an interrogation room.

KRIS MCDANIEL-MICCIO: And 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 'til they were laid out for the funeral.

SARAH: Eventually, after all this, Jessica decided to sue the Castle Rock Police Department, as Joe Lozito would with the NYPD over a decade later. And 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: And 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."

[ARCHIVE CLIP, Jessica Lenahan Gonzales: I turned to 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 MCDANIEL-MICCIO: So she files a petition in the federal district court.

SARAH: Which got kicked up to the 10th circuit court.

KRIS MCDANIEL-MICCIO: And then it went up to the Supremes.

[ARCHIVE CLIP, Supreme Court: We'll hear argument now, number 042-78: The town of Castle Rock v Jessica Gonzales.]

SARAH: So in 2005, Jessica's case went before the Supreme Court.

[ARCHIVE CLIP, Supreme Court: Mr. Chief Justice, and may it please the court ...]

SARAH: And very quickly in this case, the justices started asking these questions that were ...

[ARCHIVE CLIP, Supreme Court: Mr. Reichel, how would you describe the property?]

SARAH: They're just—they're just very technical.

[ARCHIVE CLIP, Supreme Court: What is the property your client has been deprived of?]

SARAH: There are questions about property, and if the restraining order is property.

[ARCHIVE CLIP, Supreme Court: That would be a property, right? If she had a private contract.]

SARAH: Or there was a lot of discussion about ...

[ARCHIVE CLIP, Supreme Court: The word "shall" enforce ...]

SARAH: What the word "shall' means.

[ARCHIVE CLIP, Supreme Court: Suppose "shall" does mean "shall." Fine.]

SARAH: But eventually ...

[ARCHIVE CLIP, Supreme Court: So that 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 ...

[ARCHIVE CLIP, Supreme Court: Don't the police have an obligation to enforce them?]

[ARCHIVE CLIP, Supreme Court: To my knowledge, we've never held that the police have an actionable obligation to enforce them.]

[ARCHIVE CLIP, Supreme Court: What—what good—what does a restraining order do then?]

[ARCHIVE CLIP, Supreme Court: I think 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. And that is the interest the restraining order gives her.]

[ARCHIVE CLIP, Supreme Court: But only to ask the police and then not—the police are not obliged to respond?]

[ARCHIVE CLIP, Supreme Court: That is correct. She—she has the ability to ask the police to enforce the order, but the police have discretion under our reading of the statute.]

SARAH: And then Justice John Paul Stevens just asks point blank ...

[ARCHIVE CLIP, Supreme Court: Do the police have any duty at all, in your view?]

[ARCHIVE CLIP, Supreme Court: The police—I don't believe that the police have any sort of

actionable duty. I think that what the ...]

SARAH: And 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 MCDANIEL-MICCIO: The Constitution is a negative-rights constitution, meaning our constitution is "Keep your laws off my body."

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

KRIS MCDANIEL-MICCIO: There's no affirmative duty on the part of the state to protect you.

JAD: So it protects you from the police, theoretically.

SARAH: Right.

JAD: 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 Justice Stevens asks ...

[ARCHIVE CLIP, Supreme Court: Do the police have any duty at all, in your view?]

SARAH: The lawyer for the police was like ...

[ARCHIVE CLIP, Supreme Court: The police ...]

SARAH: "No."

[ARCHIVE CLIP, Supreme Court: I don't believe that the police have ...]

KRIS MCDANIEL-MICCIO: They didn't have to do anything. They didn't have to do a damn thing.

[ARCHIVE CLIP, Supreme Court: The case is submitted.]

KRIS MCDANIEL-MICCIO: And to be brutally frank, I knew we were gonna lose. I knew it. But I didn't think we'd lose as badly as we did.

SARAH: In a 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 thy declined.

[ARCHIVE CLIP, Jessica Lenahan Gonzales: In 2005, the United 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 MCDANIEL-MICCIO: When she lost, it was as if her children had been murdered again.

[ARCHIVE CLIP, Jessica Lenahan Gonzales: I went from being victimized by Simon to being victimized by Colorado and Castle Rock.]

KRIS MCDANIEL-MICCIO: It was as if she experienced it all over again.

[ARCHIVE CLIP, Jessica Lenahan Gonzales: I felt so deceived. I'd grown up thinking that my government was bound by the laws, and that it was just and fair. But all of a sudden when I needed you the most, you turned your 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 MCDANIEL-MICCIO: They were three beautiful little girls who didn't deserve this. No child deserves this. No woman deserves this.

[ARCHIVE CLIP, Jessica Lenahan Gonzales: Our system is broken, and I have paid the price for its flaws.]

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

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

B.A.: They—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.: It's a really dark day but it's also an "I get it."

JAD: Huh. What do you mean?

B.A.: They understand. Like, 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, you know, an open container. We'd have to arrest for everything. And you would have essentially, a police state.

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

B.A.: Yes.

JAD: Now that I think about that, like, are you convinced by that argument, that there is that slippery slope that they—that they seemed to be worried about?

B.A.: I mean, this idea that we either get discretion, meaning police make all their own subjective decisions in 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 get a police state, I don't understand why that has—those two—those have to be the two choices. Like, that just seems bananas to me. Like, I feel like there's some medium, and I don't understand why the law can't figure that out.

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

B.A.: 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. And we just heard two different stories from two different people where the police failed to project either of them. And we learned that, according to the Constitution, the police don't have to. They have no constitutional duty to either of them.

SARAH: Right. And you were wondering if there—like, if there is some sort of middle path to the police having to protect us.

JAD: Yes.

SARAH: Yeah. Right. So in that Supreme Court Case, Scalia in his opinion kind of hints at that. Like, he references these cases in the lower courts that talk about this idea of, like, a special relationship.

JOHN GOLDBERG: Hello.

SARAH: Hello. Hi! How are you?

JOHN GOLDBERG: 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? Like, what—what does that mean?

JOHN GOLDBERG: Yeah.

SARAH: So I called this guy, John Goldberg.

JOHN GOLDBERG: Professor at Harvard Law School, and my main area of interest and expertise is tort law.

SARAH: So real quick, tort law is the universe of law that governs what happens when one person hurts another person.

JAD: Hmm.

SARAH: And in tort law ...

JOHN GOLDBERG: We have a general rule that says people aren't obliged to help you. It's your problem, it's not theirs.

SARAH: The classic example is like, if you're walking down the street and ...

JOHN GOLDBERG: 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 GOLDBERG: 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: Yeah. Totally.

JOHN GOLDBERG: But 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—I don't know, man. I don't get it either.

JOHN GOLDBERG: But ...

SARAH: There's an exception to that in the law.

JOHN GOLDBERG: 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 GOLDBERG: So a classic example would be if you are a hotel, and you invite people to come stay in your hotel—as all hotels do—you need, you know, working locks on the door to make sure nobody breaks in in the middle of the night. You need 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.

JOHN GOLDBERG: Airlines, taxi cabs, things like that.

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

JOHN GOLDBERG: Between prison and prisoner, parents and minor children. So surely police officer-citizen has gotta be the right kind of special relationship, right?

SARAH: Yeah.

JOHN GOLDBERG: But along come the courts and say, "Nope, actually not."

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

JAD: Hmm. What are the boxes you need to check in order to have a quote, "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 LAHAV: professor of law at the University of Connecticut.

SARAH: And 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 LAHAV: All right, so the rule in New York ...

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

JOHN GOLDBERG: So someone goes to the police and says, "You gotta help me."

SARAH: The second thing is the police then have to respond to you and say ...

JOHN GOLDBERG: "Okay. We're on it."

ALEXANDRA LAHAV: So some kind of promise to this individual: I will protect you.

SARAH: And then number three ...

ALEXANDRA LAHAV: 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 like getting into the head of the police.

SARAH: Yeah, how could you know that kind of thing?

ALEXANDRA LAHAV: That's what's—now you're seeing why this test is so hard to meet.

SARAH: Right.

ALEXANDRA LAHAV: And then you need in addition ...

SARAH: The fourth thing is kind of the most mind-boggling, which is the person asking for protection ...

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

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

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

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

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

SARAH: And in Joe Lozito's case, he just didn't check those boxes.

JOHN GOLDBERG: Well very, very few people do.

JAD: Wow. God, what a minefield!

SARAH: So 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." And 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." And then four, Joe would have then had to then 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. And I guess it all—it kind of 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: Ah, now you've come to the fundamental problem.

SARAH: So this is Professor Barry Friedman.

BARRY FRIEDMAN: 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, like, 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 FRIEDMAN: No.

SARAH: Really?

BARRY FRIEDMAN: It is remarkable. I was interested in policing for years and years, and this is the 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 know, you might get a drone statute in one state, and you'll get a statute about chokeholds in another state.

SARAH: Hmm.

BARRY FRIEDMAN: And you'll get a statute about, you know, license plate readers in another state. But it's all totally like pinprick. And what you will never, ever, ever find is a comprehensive code of police conduct. Doesn't exist.

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

BARRY FRIEDMAN: You're—listening to you is making me so happy. Because, you know, you were listening and the veil is coming off of your eyes, and I—and it happened to me. But no. You know, this is a question that we oddly don't ask much about the police, but ask in most other areas of government. So if you think about it, you know, there's a—whether it's the FDA or your local zoning board, we don't usually think of government getting to do things without some sort of formal permission: a statute or a constitutional authorization.

B.A.: Wait, so we've just, like, collectively as a society been like, "Hey, you're a cop." And they're like, "Oh, okay. What does that mean?" "I don't know. Just do what you gotta do." And they're like, "Oh, all right." And then that's it?

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

JEREMIAH JOHNSON: Hello?

TERRY CHERRY: Hello?

AARON LANDERS: Hello?

CHASE WETHERINGTON: 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 office with the Lincoln Police Department in Nebraska.

JAD: And when we asked them, like, what do they think their job is, they said, "Well, to protect people."

LUKE BONKIEWICZ: Oh, certainly that's part of it. Intervening and protecting ...

JAD: Again and again they said yeah ...

JEREMIAH JOHNSON: Helping people is kind of, cliche as that sounds ...

JAD: Our job is to protect and serve.

CHASE WETHERINGTON: We wanna protect people's stuff, we wanna protect people against burglaries.

LUKE BONKIEWICZ: Trying to protect women from abusers.

JEREMIAH JOHNSON: We have a natural duty to protect.

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

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

ALEXANDRA LAHAV: That's why we're doing this.

JAD: And in talking to them about where that idea actually comes from ...

JEREMIAH JOHNSON: Sure. So when—when you talk about duties ...

JAD: Like, where is it written down?

JEREMIAH JOHNSON: That kind of gets into the code of ethics for policing, or our 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." And 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 kind of internal to the police departments themselves.

BARRY FRIEDMAN: And 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. And 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: And I guess in that void it's sort of—it seems like what happens is that it leaves the courts to kind of debate over what those rules are and how to draw lines, I guess?

BARRY FRIEDMAN: Yes! And they're terrible at it.

SARAH: Hmm.

BARRY FRIEDMAN: I mean, again, if you think about it, the Constitution is kind of a weird way to run anything in government. I mean, it's a framework for government, but all it is is a framework. And 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. And so 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.

BARRY FRIEDMAN: And 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. I mean, you've puzzled through it, Sarah, in a very logical way, and everywhere you turn looking for logic you find a twist. And that's—that's problematic. And what bothers me about the moment we're in—and there are many bothersome 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. And I asked this to Parker.

B.A.: Mm-hmm.

JAD: If it's not legally the police's job to protect us, then whose job is it?

B.A.: I don't know!

JAD: [laughs]

B.A.: [laughs]

JAD: All of this sounds so sad.

B.A.: It is! But there's this one part of the story I haven't told you yet that gives me a little hope.

JAD: Hmm.

B.A.: Like, if you think back to Joe Lozito, the guy who got stabbed in the subway, it wasn't just Joe, the cops and the stabber on the train that day. This was rush hour. There were a bunch of other people on the train, and when the stabber lunged at Joe, they got out of the way. They were like, "Absolutely not. I want no part to this. I'm going to the next car." Took a step back, just like the cops did. But 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.: What was it like to witness something like that, to see someone get attacked?

ALFRED DOUGLAS: Miss, I can tell you that, you know, I'm 58 years old, I've never seen somebody so viciously slashed before.

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

ALFRED DOUGLAS: I was just standing there.

B.A.: And as the train started moving ...

ALFRED DOUGLAS: You know, this guy came from the back of the train. And once he walked in, my eyes was fixed on him because, you know, he didn't look right. And, you know, he went and sit beside this woman. The woman get up, and then he move and went—sit, you know, across from Joe.

B.A.: And all of a sudden ...

ALFRED DOUGLAS: He just lunged forward, jumped onto Joe and then started attacking Joe. Joe—Joe is all covered in blood. The other passengers that was up the front, you know, they start running to the back of the car. While the tussle was going on, the police that was in the—the motorman's cabin, he opened the door and looked out, and then they went back in and, you know ...

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

ALFRED DOUGLAS: After Joe Lozito took him down and they were on the ground, the police came out of the motorman's car and grab him. Maksim Gelman now fighting the cop. By that time Joe couldn't see, you know?. His head was covered in blood, you understand me? So he was just crying for his wife, his kids and whatever.

ALFRED DOUGLAS: So I said to myself, "You know, we gotta help him." So I just—I kneeled in his stomach, you know, and tried to get control of his hand because the officer, like, have his gun in one hand and, you know, trying to control him with one hand. So, you know, I see that he needed help, so I went there and I kneeled down on him.

ALFRED DOUGLAS: So after he cuff him up now, you know, the train comes to a stop. And when I look at Joe, you know, I've never seen a slash like that before. His—his neck—like, the back of his neck, it was just jumping, like pump—you know, like, you know, blood just pumping out of him.

ALFRED DOUGLAS: It seemed like eternity because, you know, Joe, he thought he was gonna bleed out. You know, I thought he was gonna bleed out too. So I asked, you know, if anybody have like a tissue or a napkin, but before I got a tissue or napkin, I was hold—you know, I was putting—applying pressure to his—to his neck.

B.A.: Mm-hmm.

ALFRED DOUGLAS: And then somebody came with a—with a piece of napkin and, you know, I used the napkin to apply the pressure. You know, that's just me. I was—I was raised by my grandmother. I was taught to help, you know, when you see a need for help. You know, I just did what I thought that was right at the time.

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

ALFRED DOUGLAS: No, I haven't heard anything about that. And how did that go?

B.A.: The judge threw the case out.

ALFRED DOUGLAS: Oh, man!

B.A.: Citing—yeah, citing that the police has no special duty to protect him.

ALFRED DOUGLAS: Yeah?

B.A.: And ...

ALFRED DOUGLAS: So the transit cop that, you know, walk the beat down there, didn't have no duty to protect the consumers?

B.A.: Essentially, yeah.

ALFRED DOUGLAS: Damn! That's—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.: That's what I'm trying to figure out [laughs].

ALFRED DOUGLAS: We're—we're paying our taxes, you know? That's—you know, that's what I thought they were employed for. You know, this is news to me. I didn't know the police doesn't have a duty to protect the citizens of a country or a state. I can't—I don't—I mean, I gotta process this, you know?

B.A.: Yeah.

ALFRED DOUGLAS: I didn't know something like this exists. If this is the case, you know, they should free up the gun laws in New York. Everybody could have their protection. I was living all my life all this time, thinking, you know, the police are there to serve and to protect, you understand me? If they see something unlawful happening, it's their duty to, you know, be the judge and the jury on the spot. I can't see how they could say that wasn't their job to protect the citizens. I didn't—it's a strange world, man.

B.A.: Mm-hmm.

ALFRED DOUGLAS: I gotta process this, and I gotta let my kids know. And whoever will listen to me, I got to let them know, you know, about this because this is news to me.

B.A.: Like, it takes two—like, a badly wounded guy and a guy with some napkins to defeat a serial killer.

JAD: Yeah.

B.A.: And 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 yeah. Hell, no.

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

JAD: [laughs]

B.A.: [laughs]

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

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

JAD: "I'm sorry." [laughs] "I'm gonna leave this Kleenex right over here, and you can come and get it."

B.A.: Yep.

JAD: Special thanks to April Hayes and Katia Maguire for their documentary "Home Truth" about Jessica Lenahan. To Cracked.com for sending us down this rabbit hole. Caroline Bettinger Lopez, Jeff Grimwood, Christy Lopez, Anthony Huron, Mike Wells, Keith Taylor. And to the officers we spoke to for this piece: Chase Wetherington, Terry Cherry, Luke Boniewicz, Jeremiah Johnson and Aaron Landers.

JAD: I'm Jad Abumrad. Thanks for listening.

[LISTENER: Radiolab is created by Jad Abumrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Suzie Lechtenberg is our executive producer. Dylan Keefe is our director of sound design. Our staff includes: Simon Adler, Jeremy Bloom, Becca Bressler, Rachael Cusick, W. Harry Fortuna, David Gebel, Maria Paz Gutiérrez, Sindhu Gnanasambandan, Matt Kielty, Annie McEwen, Alex Neason, Sarah Qari, Anna Rascouët-Paz, Sarah Sandbach, Arianne Wack, Pat Walters and Molly Webster. With help from Bowen Wang. Our fact-checkers are Diane Kelly, Emily Krieger and Adam Przybyl.]

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