AAC
route and did not follow her all the way to the shelter. At an intersection, the woman’s husband spotted her and rammed her vehicle with his vehicle, walked to her vehicle and began beating her, returned to his car and got a knife, and used the knife to stab her to death in her car.
Citing DeShaney and
Castle Rock, the Arkansas Supreme Court explained that in- dividuals do not have a constitutional right to have a person arrested, so the officer could not be held liable for failing to arrest the husband, and the officer “was under no affirmative duty to aid or protect” the woman “from a private act of violence” under the constitution. Tere is an exception to the general rule that the govern- ment has no constitutional duty to render aid in the free world. Sometimes called the “special-relationship exception” and sometimes called the “state-created-danger exception,” the exception basically holds that there is a constitutionally enforceable duty to protect when a government official af- firmatively places an “individual in a position of danger that [the person] would not otherwise have faced.” Repking, 2010 Ark. 356, at 9, 377 S.W.3d at 218. A government official can be liable for private acts of violence if the government official has taken action to assume a special custodial rela- tionship with the perpetrator or to place potential victims in danger, and thereby affirmatively created a duty to protect that would not otherwise exist. For example, in Sherpherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998),
LITIGATION LESSONS
the court permitted a constitutional claim against govern- ment officials arising from a murder and other violent acts committed by an inmate at a private medical clinic because government officials transported the inmate to the private medical clinic but failed to take precautions to prevent the inmate from committing violent acts against potential vic- tims at the private medical clinic, though the officials knew the inmate was extremely violent. In conclusion, the general rule that government officials are
not constitutionally required to protect citizens from private violence (outside the jail and prison context) may seem harsh — especially in light of some of the tragic facts of the seminal cases — but it would be unfair to hold law enforcement li- able for private acts of violence just because violence might have been prevented with the benefit of 20/20 hindsight. Of course, regardless of whether the courts allow constitutional claims against law enforcement for failure to protect or not, and regardless of whether the actions of law enforcement con- tribute to a risk of harm to citizens or not, law enforcement officers are sworn to protect and serve the citizenry, and do so gracefully and effectively the vast majority of the time. In light of the exception to the general rule, deputy sheriffs and other law enforcement officials should be aware that a constitutional duty to protect may arise in custodial situations and other cir- cumstances where the actions of law enforcement contribute to or create a risk of harm to citizens.
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