The right to police indifference

Sadly, the Cleveland kidnapping is not the first case in which 911 calls apparently went unanswered

Calling the police doesn't mean they're obligated to respond.
(Image credit: Thinkstock/Ingram Publishing)

When you call 911 in an emergency, the police don't have to respond to your call.

If someone breaks into your house or your partner threatens to hurt you, the police don't have to respond. If you report a neighbor's continual slashing of your tires, the cops can ignore your calls. If a cross burns in your front yard, no one from the precinct must investigate. Despite all talk of "taxpayer dollars," your crisis is completely optional to law enforcement, even in the worst of circumstances. The public can protest and bewail this seeming governmental indifference, but no citizen is legally entitled to police protection.

Police indifference is the under-examined tragedy of the Cleveland kidnappings, in which Ariel Castro allegedly confined and raped three women for a decade in a nondescript house in a poor neighborhood. Neighbors attest to calling the police on several occasions. They recalled seeing naked girls in Castro's yard leashed like dogs. They also saw women beating on closed windows. As long as the neighbors are relaying things accurately — and they might not be — it seems the police either made cursory glances or failed to show up at all.

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But here's the thing: According to a Supreme Court case, Castle Rock v. Gonzales, police have no legal obligation to respond to anyone's calls, even in matters of life and death.

On June 22, 1999 in Castle Rock, Colo., Jessica Gonzales' three daughters were abducted from her yard at 5:15 p.m. by her estranged husband, Simon. The couple had begun divorce proceedings, and Simon violated a restraining order by taking the girls outside of his specified visitation hours. Unable to locate Simon and the girls, Jessica called the local police at 7:30 p.m., 8:30 p.m., 10:10 p.m., and 12:15 a.m., following up with a visit to the station at 12:40 a.m. At 3:20 a.m., Simon appeared at the police station brandishing a gun, resulting in a fatal shootout. When the police checked his truck, they found the bodies of the three daughters in the back.

The police ignored all of Jessica's calls and her visit to the station. Because Simon was allowed to visit the children, the police saw no need for action, even though his "visit" violated the restraining order. The police, Jessica recalled, felt that "he's their father. It's okay for him to be with them." After her third call, they forbid her from calling until midnight.

Jessica's protection order featured a mandatory arrest clause in the event Simon violated his visitation scheme. Mandatory, to a reasonable person, entails an imperative not open for interpretation. Still, the police viewed the protection order as optional.

The Supreme Court agreed, holding that Jessica had no enforceable right to protection, despite the arrest clause. Justice Antonin Scalia saw no contradiction in the police inaction, arguing that "a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes." Castle Rock's indifference to Jessica's pleas and dead children falls under this constitutional veil of "discretion."

Assessing the urgency of emergency is everyday police triage. Bank robberies get priority over cats in trees, and violent behavior takes precedence over noise complaints. Threats of harm are more important to police than residential minutiae, and discretion allows the department to deploy officers effectively and efficiently.

But there is a dark side to police discretion, and it disproportionately affects disadvantaged groups. Domestic violence calls are often dismissed as private matters between lovers, and women's problems can be viewed as hysterical theatrics by male officers. Response time in wealthier neighborhoods far outstrips those of poor communities. And notoriously, "discretion" stands as the primary justification for racial profiling.

A 1996 study on police responses to crime found that the race of the victim and offender significantly affected police responsiveness. White victims received quicker responses and better follow-up. Black victims fared much worse. Differential racial outcomes stem from discretion, which plainly means the issues police find attention-worthy. Sadly, this turns objectively illegal crimes into subjectively important options.

It's not entirely surprising that demographics influence access to public services. What is more surprising — and shocking — is the categorical protection of clear police ignorance, which puts police departments beyond reproach. Police are generally freed of responsibility for the citizens they are supposed to protect.

For over 10 years, Amanda Berry, Gina DeJesus, and Michelle Knight were hidden in plain sight, but outside the scope of police interest. When neighbors called for help, their pleas apparently fell on deaf ears. It's clear that citizens — especially the marginalized — have no legal right to police protection. If you are a female resident of a poor, minority community in one of the poorest cities in America, you're on your own.

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Kevin Noble Maillard is professor of law at Syracuse University, where he teaches family law. His work has been featured in The New York Times, Essence, MSNBC's The Grio, and NPR.