Tuesday, January 12, 2016

Lets talk taxes!!!

Starting off today with a link for you to go over.


And some quotes to help you understand better.

...the Court has frequently held that domicile or residence, more substantial than mere presence in transit or sojourn, is an adequate basis for taxation, including income, property, and death taxes. Since the Fourteenth Amendment makes one a citizen of the state wherein he resides, the fact of residence creates universally reciprocal duties of protection by the state and of allegiance and support by the citizen. The latter obviously includes a duty to pay taxes, and their nature and measure is largely a political matter. Of course, the situs of property may tax it regardless of the citizenship, domicile, or residence of the owner, the most obvious illustration being a tax on realty laid by the state in which the realty is located."

[Miller Brothers Co. v. Maryland, 347 U.S. 340 (1954)]

The most telling part (in bold) informs us that our "residence" in their political jurisdiction (not geographical location, see social contract, domicile) is what subjects us to these reciprocal duties of taxation.

Lets get some more quotes in here.....

Accordingly, when returns were filed in Mrs. Morse's name declaring income to her for 1944 and 1945, and making her potentially liable for the tax due on that income, she became a taxpayer within the meaning of the Internal Revenue Code


Taxes are voluntary, and when we file returns we agree to be taxpayers, as this case states.

More cases so you can see more of their reasoning........

"The Sixteenth Amendment, although referred to in argument, has no real bearing and may be put out of view. As pointed out in recent decisions, it does not extend the taxing power to new or excepted subjects..."

U.S. Supreme Court, Peck v. Lowe, 247 U.S. 165 (1918);

Who are the excepted subjects? Why they are the non resident aliens of course. The federal government can not tax subjects that are not theirs UNLESS there is a nexus between the foreign subject and a trade or business within the united states. They do this thru the "minimum contact doctrine".

Lets move on........

"[T]he settled doctrine is that the Sixteenth Amendment confers no power upon Congress to define and tax as income without apportionment something which theretofore could not have been properly regarded as income."

U.S. Supreme Court, Taft v. Bowers, 278 US 470, 481 (1929).

This is saying that if it was not considered Income before the amendment, then it was not considered "income" after the amendment.

Now, as to what the definition of income is.....

In Stratton's Independence v. Howbert, 231 U.S. 399, 400; 34 S.Ct. 136 (1913) the Supreme Court stated:
"Income may be defined as the gain derived from capital, from labor, or from both combined."
" . . . And, however the operation shall be described, the transaction is indubitably 'business' within the fair meaning of the act of 1909; and the gains derived from it are properly and strictly the income from that business; for "income" may be defined as the gains derived from capital, from labor, or from both combined, combined operations and here we have of capital and labor." Id at p. 415
                                                                                    (emphasis added)
            Five years later, the Supreme Court in Doyle v. Mitchell Brothers Co., 247 U.S. 179, 38 S.Ct. 467 (1918), states:
"Yet it is plain, we think, that by the true intent and meaning of the act the entire proceeds of a mere conversion of capital assets were not to be treated as income. Whatever difficulty there may be about a precise and scientific definition of "income," it imports, as used here, something entirely distinct from principal or capital either as a subject of taxation or as a measure of the tax; conveying rather the idea of gain or increase arising from corporate activities. As was said in Stratton's Independence v. Howbert, 231 U.S. 399, 415: 'Income may be defined as the gain derived from capital, from labor, or from both combined.'" Id at 184-5
                                                                                        (emphasis added)

The Court held that:
". . . Income may be defined as the gain derived from capital, from labor, or from both combined," provided it be understood to include profit gained through a sale or conversion of capital assets, to which it was applied in the Doyle case (pp. 183, 185)."
"Brief as it is, it indicates the characteristic and distinguishing attribute of income essential for a correct solution of the present controversy. The Government, although basing its argument upon the definition as quoted, placed chief emphasis upon the word "gain," which was extended to include a variety of meanings; while the significance of the next three words was either overlooked or misconceived. "Derived — from — capital;" — "the gain — derived — from — capital," etc. Here we have the essential matter: not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and coming in, being "derived," that is, received or drawn by the recipient (the taxpayer) for his separate use, benefit and disposal; — that is income derived from property. Nothing else answers the description." Id at 207
                                    (italics the Court's, bold emphasis added)

Whether Eisner v. Macomber or Glenshaw Glass, the measure of income is in the GAIN realized.
            There is no doubt that had the government contended that all of the treble damage award in Glenshaw was income, the Court would have rejected such a position. Likewise, if the government were to contend that a widget shop owner could only deduct his shop expenses, but not his cost of goods, from his gross revenue, the Court would not stand for that, either, because that would not only be a tax on the income (gain or profit), but on the capital, as well.
            Gain or profit is, without question, that portion of monies received that is above and beyond what was given up, either in property or expense, in order to receive those funds. Gross revenue less cost and overhead equals profit or gain—income. Neither the Court nor the government gave a thought to whether the compensatory damages were income, having backed those compensated damages out of the equation to begin with. Given the understanding, then, that in order to be income there must first be a gain, or profit, we are prepared to examine whether wages, salaries and fees personally earned (hereinafter referred to collectively as "wages" in the interest of brevity), are income within the meaning of the Constitution.
            The Code defines gross income as "income from . . . compensation for services". Since income is gain, profit, then that definition is actually "that portion of compensation for services that is gain or profit." The government's contention is that the gain or profit is everything received for compensation for services, thus with respect to wages the government contends that gross revenue and gross income are the same. Wages are the only revenue that the government treats as equivalent to income.
            A tax on gross revenue as opposed to net gain is not an income tax, but a tax on both capital and income. State Tax on R. Gross Receipts, 15 Wall. 284, 21 L. Ed. 164; Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 122 U.S. 326, 30 L. Ed. 1200; Maine v. Grand Trunk R. Co., 142 U.S. 217, 35 L. Ed. 994; and since a tax on gross revenue is taxing both income and capital, insofar as the tax on capital is concerned it is not indirect nor is it 'exempt' from the requirement of apportionment.
            The problem with wages is that, unlike every other form of "income" described in the code, the government does not permit the wage-earner to back out what he has given up in order to receive those wages. It has been established that a man's labor is his property, the capital. Thus wages are the purchase price for that property. Any other exchange of property for money must generate a profit before it is considered income, so on what basis does the government contend that all of the money exchanged for his property must be and is profit or gain?

The obvious conflict in the government's assessment of wages as having been paid for nothing is that if that is the case, then the wages are gratuities, gifts, not "income". The government cannot have it both ways, to state that the wage-earner on the one hand realized earnings, or income, but on the other hand received something for nothing, a purely gratuitous gift, is nonsense.
            If we attempt to imagine the most "worthless" employment possible, one that required the absolute least amount of expenditure of effort and no knowledge or skill, we would still have to admit that no matter how much or how little such an employment paid, the employee is not paid for nothing. A night watchman, whose only requirement is that he remain in the premises overnight, is still giving up something for his wages. He is not being paid for nothing in exchange.

Example 1: Gains on Capital
            Joe places $100,000 in a certificate of deposit earning 6% per annum. Joe gave up his $100,000 for a year and at the end of the year he received $106,000 of which only $6,000 would be income as defined by the act. Joe still has his original $100,000 and can 'rent' it out again for another year, but he pays taxes only on the $6,000 gain.
Example 2: Gains on Sales
            Tom buys a widget for $1 and sells it for $2. Tom gave up $1 in order to receive $2, but only the additional $1 is considered income. Tom still has his dollar back and can purchase another widget to sell, but he pays taxes only on the $1 gain
Example 3: Gains on Labor
            Bob pays Bill $50 to unplug Mrs. Haversham's drain for which Bob charges Mrs. Haversham $75. Bob gave up $50 in order to receive $75, but only $25 is considered income, his realized gain of $25 on Bill's labor. Bob still has his original $50 that he can use to purchase more labor that he can sell for profit, but he pays taxes only on the $25 gain.
            But what about Bill's $50?  What has Bill given up? Nothing?  Bill gave up a day out of his life, he expended his effort and skill, employed the use of his working tools. Bill no longer has his day or his labor, both are spent. He cannot, even with every penny of his $50, buy another day or recover the effort he expended, yet according to the government, his $50, every bit of it, is profit, gain, accession to wealth and was received in exchange for nothing. What Bill gave up to receive his $50 was not "nothing", it was "'The property which every man has in his own labor, [and] as it is the original foundation of all other property, so it is the most sacred and inviolable. . . .' Adam Smith's Wealth of Nations, Bk. I. Chap. 10." Butchers' Union, supra.
Last couple of quotes came to us from tax freedom dotcom
As always, question everything, believe nothing, verify, verify, verify.

Allegiance for protection better known as the citizenship contract.

While debating fellow researchers of law, it was attested that citizenship was not a contract. I hope to explain fully that citizenship is a contract, and has always been such. In its basic form it is called allegiance for protection, a classic benefits for obligations contract. This has to do with citizenship of the national government as well as when there were just state citizens as well. Some people think that being citizens of the state means you are free, but it does not, it just means you have a contract with the state instead of the federal government. Here are some quotes to help illustrate what I am talking about.

The United States Supreme Court once drew a parallel between

CITIZENSHIP and membership in an association so well, that it

triggered my analogy to that of joining a Country Club:

  "... Each of the persons associated becomes a member of the

nation formed by the association. He owes it allegiance and

is entitled to its protection. Allegiance and protection are,

in this connection reciprocal obligations. The one is a

compensation or the other; allegiance for protection and

protection for allegiance.

  "For convenience it has been found necessary to give a name to

this membership. The object is to designate by title the

person and the relation he bears to the nation. For this

purpose the words "subject," "inhabitant" and "citizen" have

been used, and the choice between them is sometimes made to

depend upon the form of the Government. Citizen is now more

commonly employed, however, and as it has been considered

better suited to the description of one living under a

Republican Government, it was adopted by nearly all of the

States upon their separation from Great Britain, and was

afterwards adopted in the ARTICLES OF CONFEDERATION and in the

Constitution of the United States. When used in this sense it

is understood as conveying the idea of membership of a nation,

and nothing more."

- MINOR VS. HAPPERSETT, 88 U.S. 161, at 166 (1874).

"Since the 14th Amendment makes one a Citizen of the state where

ever he resides, the fact of residence creates universally

recognized reciprocal duties of protection by the state and of

allegiance and support by the Citizen. The latter obviously

includes a duty to pay taxes, and their nature and measure is

largely a political matter."

- MILLER BROTHERS VS. MARYLAND, 347 U.S. 340, at 345

"In every civilized Country, the individual is BORN to duties

and rights, the duty of allegiance and the right to

protection; and these are correlative obligations, the one the

price of the other, and they constitute the all-sufficient

bond of union between individual and his Country; and the

Country he is born in is, PRIMA FACIE, his Country. In most

countries the old law was broadly laid down that this natural

connection between the individual and his native country was

perpetual; at least, that the tie was indissoluble by the act

of the subject alone..."

  "But that law of the perpetuity of allegiance is now

changed..." [meaning Americans can dissolve the tie whenever

they feel like it, a severance not possible under the old

Britannic rule of Kings.]

  - Edward Bates, United States Attorney General, in

["Citizenship"], 10 Opinions of the Attorney General 382 at

394, [W.H. & O.H. Morrison, Washington (1868)].
"This Government... has certainly some power to protect its

own Citizens in their own country. Allegiance and protection

are reciprocal rights."

- CONGRESSIONAL GLOBE, 39th Congress, 1st Session, at page

1757 (1866).
The word CITIZEN appears four times in the 14th Amendment; some

are in reference to Citizens of the United States, and others are

in reference to Citizens of the several States. There is a

Citizenship Clause in the 14th Amendment pertaining to the

benefits [a RIGHT is also frequently a benefit] enjoyed by

Citizens of the States in relationship to the benefits enjoyed by

Citizens of other States. Called the PRIVILEGES AND IMMUNITIES

CLAUSE, this Clause has generated a large volume of Court Cases.



STATES, 1 Michigan Law Review 286 (1902);


OF STATE CITIZENSHIP [John Hopkins Press, Baltimore (1918)];


[Columbia University Press, New York (1913)].
The most predominate ways that an individual can become subject to

the jurisdiction of the United States is by:

1. Violating a law the Government is authorized to prosecute

(counterfeiting, bank robbery, treason, etc.);

2. Be employed by the Federal Government;

3. Apply for its privileges, or accept its benefits;

See generally:


DUTIES [Pudney & Russell, New York (1857)];


STATES [University of Chicago Press, Chicago (1934)];

  - Albert Brill in TEN LECTURES ON CITIZENSHIP [Ascendancy

Foundation, New York (1938)];



New York (1907)];

  - Imp Charles Beard in AMERICAN CITIZENSHIP [MacMillian, New

York (1921)];

  - Editors, UNITED STATES CITIZENSHIP "Rights and Duties of an

American" [American Heritage Foundation, New York (1948)];

  - Nathan S. Shaler in CITIZENSHIP "The Citizen -- A Study of

the Individual and the Government" [A.S. Barnes & Company, New

York (1904)];

  - Melvin Risa in CITIZENSHIP "Theories on the Obligations of

Citizens to the State," Thesis, [University of Pennsylvania,

Philadelphia (1921)];

  - Ansaldo Ceba in CITIZENSHIP "Rights, Duties, and Privileges

of Citizens" [Paine & Burgess, New York (1845)].
As you can see, the courts and you will find history of citizenship agrees that it is a allegiance for protection contract.
Remember, to understand citizenship, you must research citizenship first.

Friday, January 8, 2016

Patrick Henry Liberty or Empire? 1788

 Liberty or Empire?
Patrick Henry
THIS, sir, is the language of democracy--that a majority of the community have a right to alter government when found to be oppressive. But how different is the genius of your new Constitution from this! How different from the sentiments of freemen that a contemptible minority can prevent the good of the majority!

If, then, gentlemen standing on this ground are come to that point, that they are willing to bind themselves and their posterity to be oppressed, I am amazed and inexpressibly astonished. If this be the opinion of the majority, I must submit; but to me, sir, it appears perilous and destructive. I can not help thinking so. Perhaps it may be the result of my age. These may be feelings natural to a man of my years, when the American spirit has left him, and his mental powers, like the members of the body, are decayed. If, sir, amendments are left to the twentieth, or tenth part of the people of America, your liberty is gone for ever.

We have heard that there is a great deal of bribery practised in the House of Commons of England, and that many of the members raise themselves to preferments by selling the rights of the whole of the people. But, sir, the tenth part of that body can not continue oppressions on the rest of the people. English liberty is, in this case, on a firmer foundation than American liberty. It will be easily contrived to procure the opposition of the one-tenth of the people to any alteration, however judicious. The honorable gentleman who presides told us that, to prevent abuses in our government, we will assemble in convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, sir! we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone; and you have no longer an aristocratical, no longer a democratical spirit. Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors can not assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in America.

A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited--an exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, etc. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan; they will therefore act as they think proper; all power will be in their own possession. You can not force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the State? For, as arms are to be provided by Congress, they may or may not furnish them.

The honorable gentleman then went on to the figure we make with foreign nations; the contemptible one we make in France and Holland, which, according to the substance of the notes, he attributes to the present feeble government. An opinion has gone forth, we find, that we are contemptible people; the time has been when we were thought otherwise. Under the same despised government we commanded the respect of all Europe; wherefore are we now reckoned otherwise? The American spirit has fled from hence: it has gone to regions where it has never been expected; it has gone to the people of France in search of a splendid government, a strong, energetic government. Shall we imitate the example of those nations who have gone from a simple to a splendid government? Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they have suffered in attaining such a government--for the loss of their liberty? If we admit this consolidated government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things. When the American spirit was in its youth, the language of America was different; liberty, sir, was then the primary object.

We are descended from a people whose government was founded on liberty; our glorious forefathers of Great Britain made liberty the foundation of everything. That country is become a great, mighty, and splendid nation; not because their government is strong and energetic, but, sir, because liberty is its direct end and foundation. We drew the spirit of liberty from our British ancestors; by that spirit we have triumphed over every difficulty. But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances? But, sir, "we are not feared by foreigners; we do not make nations tremble." Would this constitute happiness or secure liberty? I trust, sir, our political hemisphere will ever direct their operations to the security of those objects.

Consider our situation, sir; go to the poor man and ask him what he does. He will inform you that he enjoys the fruits of his labor, under his own fig tree, with his wife and children around him, in peace and security. Go to every other member of society; you will find the same tranquil ease and content; you will find no alarms or disturbances. Why, then, tell us of danger, to terrify us into an adoption of this new form of government? And yet who knows the dangers that this new system may produce? They are out of sight of the common people; they can not foresee latent consequences. I dread the operation of it on the middling and lower classes of people; it is for them I fear the adoption of this system. I fear I tire the patience of the committee, but I beg to be indulged with a few more observations.

When I thus profess myself an advocate for the liberty of the people, I shall be told I am a designing man, that I am to be a great man, that I am to be a demagog; and many similar illiberal insinuations will be thrown out; but, sir, conscious rectitude outweighs those things with me. I see great jeopardy in this new government. I see none from our present one. I hope some gentleman or other will bring forth, in full array, those dangers, if there be any, that we may see and touch them. I have said that I thought this a consolidated government; I will now prove it. Will the great rights of the people be secured by this government? Suppose it should prove oppressive, how can it be altered? Our Bill of Rights declares that "a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal."

The voice of tradition, I trust, will inform posterity of our struggles for freedom. If our descendants be worthy the name of Americans they will preserve and hand down to their latest posterity the transactions of the present times; and tho I confess my exclamations are not worthy the hearing, they will see that I have done my utmost to preserve their liberty, for I never will give up the power of direct taxation but for a scourge. I am willing to give it onditionally--that is, after non-compliance with requisitions. I will do more, sir, and what I hope will convince the most skeptical man that I am a lover of the American Union; that, in case Virginia shall not make punctual payment, the control of our customhouses and the whole regulation of trade shall be given to Congress, and that Virginia shall depend on Congress even for passports, till Virginia shall have paid the last farthing and furnished the last soldier.

Nay, sir, there is another alternative to which I would consent; even that they should strike us out of the Union and take away from us all federal privileges till we comply with federal requisitions; but let it depend upon our own pleasure to pay our money in the most easy manner for our people. Were all the States, more terrible than the mother country, to join against us, I hope Virginia could defend herself; but, sir, the dissolution of the Union is most abhorrent to my mind. The first thing I have at heart is American liberty; the second thing is American union; and I hope the people of Virginia will endeavor to preserve that union. The increasing population of the Southern States is far greater than that of New England; consequently, in a short time, they will be far more numerous than the people of that country. Consider this and you will find this State more particularly interested to support American liberty and not bind our posterity by an improvident relinquishment of our rights. I would give the best security for a punctual compliance with requisitions; but I beseech gentlemen, at all hazards, not to give up this unlimited power of taxation. The honorable gentleman has told us that these powers given to Congress are accompanied by a judiciary which will correct all. On examination you will find this very judiciary oppressively constructed, your jury trial destroyed, and the judges dependent on Congress.

This Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints toward monarchy, and does not this raise indignation in the breast of every true American? Your president may easily become king. Your Senate is so imperfectly constructed that your dearest rights may be sacrificed to what may be a small minority; and a very small minority may continue for ever unchangeably this government, altho horridly defective. Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs should they be bad men; and, sir, would not all the world, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.

If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands, and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design, and, sir, will the American spirit solely relieve you when this happens? I would rather infinitely--and I am sure most of this Convention are of the same opinion--have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the president, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. I can not with patience think of this idea. If ever he violate the laws, one of two things will happen: he will come at the head of the army to carry everything before him, or he will give bail, or do what Mr. Chief Justice will order him. If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of everything and being ignominiously tried and punished powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your president! we shall have a king: the army will salute him monarch; your militia will leave you, and assist in making him king, and fight against you: and what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?

SOURCE: The World's Famous Orations, Vol.1 Pg.67-76

1928 War dept. citizenship training manual

From the DOD/WAR DEPT. 1928 citizenship training manual
21. Definition of citizenship. — Citizenship is that membership in a nation which includes full civil and political rights, subject to such limitations as may be imposed by the government thereof.
(notice it says civil and political rights, not natural unalienable rights)
29. Obligations of citizenship. — Active citizenship is gained only by becoming an enfranchised citizen of a State. This carries with it the obligation of a clear understanding of the principles of government and the courage to demand that these principles be not abridged.

Andrew Jackson said that every good citizen makes his country's honor his own. and not only cherishes it as precious, but sacred.

Lincoln declared: "I must stand by anybody that stands right; stand with him while he is right; and part with him when he is wrong."

It is essential that the individual citizen exercise his right of franchise — vote — as his paramount duty at all elections.

Uphold the Constitution as the one assurance of the security and perpetuation of the free institutions of America.

Practice self-government to assure good government for all.

Respect the rights of others, to assure the enjoyment of his own.

Contribute to the maintenance of his Government by the payment of taxes.

Obey the law as the first essential to law enforcement. Place service to country above service to self. Conform his conduct to the best interests of society. The opportunities and privileges of the American citizen are limited only by his individual ability, his personal habits, and conformity to necessary legal regulations.

 It is your obligation to exercise —

Care in your choice of occupation. Diligence in preparation for your task. Thrift to insure advancement and prosperity. Judgment in selection of companions. Integrity, honor, initiative, self-reliance, self-control.


Law videos

Found a channel with some law videos I need to go over and thought I would share them with you.


Tuesday, January 5, 2016

Cops are not there to "protect" you.

LEO’s Duty to Protect Persons from 3rd Party Harm
By Jack Ryan
What is the law enforcement duty to protect citizens from harm caused by third parties? This type of claim arises in a variety of circumstances. For example, police fail to protect a spouse from their violent partner; a hostage is killed by the hostage taker while the police are trying to negotiate a peaceful end to a hostage situation; an informant is killed while trying to make a drug buy; or a witness is killed in an effort to prevent their testimony. These are just some examples of how these cases arise. The only clear cut case of a duty to protect relates to prisoners who are in government custody. The reason for this duty is that the person who is involuntarily held cannot protect themselves.

The common thread in all duty to protect cases is the fact that the law enforcement officers are not the cause of the harm. Instead, some other person causes the harm and the allegation is that law enforcement should have acted to stop that person from causing the harm. In many of these cases the allegation is that if law enforcement had followed the generally- accepted practices of the profession then the harm would not have occurred. For example, if the negotiator had followed generally-accepted practices of negotiation then the hostage-taker would not have killed the hostage.
The question that is frequently asked is Under what circumstances does the state or municipal entities have a constitutional duty to protect citizens from violence at the hands of private actors? The general answer to this question is that there is no constitutional duty to protect free citizens. The only clear case of a duty to protect is when a citizen is in the custody of a state or municipality.

In DeShaney v.s. Winnebago County, the Supreme Court held that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." The DeShaney case involved a tragic case of child abuse. Joshua DeShaney first came to the attention of the Winnebago County Department of Social Services (DSS) in January of 1982. After receiving a report that 2-year-old Joshua may be the victim of abuse, the DSS interviewed his father who denied the allegation. The DSS received numerous other reports over the next two years including reports by emergency room personnel who believed that Joshua’s numerous, suspicious injuries were the result of child abuse. During this time Joshua’s father had entered an agreement with the DSS. However, he failed to comply with the conditions of this agreement. Though there were numerous reports of suspected abuse in the DSS files, no action was ever taken. In March of 1994, Joshua’s father beat him so severely that he fell into a life-threatening coma. It was later determined that Joshua had suffered numerous head injuries over a long period of time and as a result would have to be institutionalized for the remainder of his life. Joshua, through his mother, brought a 1983 action alleging that the county had deprived him of liberty without due process by failing to intervene and protect him from his father’s abuse.

The U.S. Supreme Court held that the Constitution is not a source of any affirmative obligation on the state or its subdivisions to protect its citizens. Since "the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." The Court did note that when "the State takes a person into custody and holds him there against his will, the Constitution imposes on it a corresponding duty to assume some responsibility for his safety and general well-being…The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." In Joshua DeShaney’s case the Court noted that the county had done nothing to create Joshua’s predicament or to make him more vulnerable to it. This note by the Court left an opening which some courts have used to find liability based on a violation of due process.

The Deshaney case, decided in 1989, remains the controlling law on the duty of government actors to protect citizens who fall prey to harm by third parties. While the law seems clear, there have been some cases where court’s have found that law enforcement agencies have breached a duty of care to person’s who have been injured or killed at the hands of third parties. These cases fall into two categories that are closely aligned, specifically the case involve those where law enforcement personnel have done something to enhance the danger to the third party or where law enforcement personnel have done something which has created the danger to the third party. Cases from several circuit courts provide a good example of how the courts are interpreting the law enforcement duty to protect.

Rivera v. City of Providence involved the murder of a witness. Jennifer Rivera, a fifteen year old, was a witness in the murder of Hector Feliciano, who was shot and killed on August 28, 1999. Jennifer had observed a notorious criminal, Charles Pona, flee the scene of the homicide. At the request of the police, Jennifer went to the police station and gave a witness statement. On August 31, 1999, Jennifer made a second trip to the police station at the request of the murder victim’s family and made a second witness statement in which she identified Charles Pona.

Jennifer’s testimony at a grand jury was helpful in indicting Charles Pona for the murder of Hector Feliciano. Jennifer also testified in preliminary hearings in which she was subjected to cross- examination by Pona’s counsel. According to her family, the testimony, which was given under the duress of police and prosecutors, led to numerous death threats. Jennifer’s family claimed that police and prosecutors were made aware of these threats and promised that Jennifer would be safe.
On May 21, 2000, Dennard Walker, Pona’s half-brother, stepped out of the shadows in front of Jennifer Rivera’s house and shot her in the head causing her death. Ironically, though Jennifer was not available to testify at trial, her testimony at the prior hearings that was subject to cross-examination was introduced and aided in the conviction of Charles Pona for the death of Hector Feliciano. Dennard Walker was convicted for the murder of Jennifer Rivera. Rivera’s family filed a lawsuit in federal court alleging that the prosecutors and police officers involved in the prosecution of Pona had failed to protect her from the harm caused by Pona.

The federal trial court dismissed the lawsuit after concluding that there was no duty on the part of law enforcement to protect Jennifer from harm even if the police were made aware of the threats and had promised some level of protection. That prompted an appeal to the United States Court of Appeal for the 1st Circuit.

The Court of Appeal began by recognizing the conclusions of the Supreme Court in Deshaney. "The Supreme Court has stated that as a general matter, ‘a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause’….That is because the purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other." It was further recognized that law enforcement may have an obligation to protect persons from third party violence when there is a special relationship; however, citing Deshaney, the court noted that a special relationship is founded in a state depriving someone of the liberty to take care of themselves as with a prisoner. The court concluded that even if the police did make promises of protection and fail to keep those promises, they did nothing to restrain Jennifer’s liberty and thus there could be no liability based upon a duty to protect under the United States Constitution.

An opposite result may be reached when a person is being held in a jail or prison and suffers harm at the hands of a third party. In Merriweather v. Marion County, a federal trial court examined a lawsuit that resulted from assaults on a seventeen year-old in the Marion County Jail. The juvenile, Ryan Merriweather was sexually assaulted by several other inmates while in his cell. The assault which occurred over a forty-five minute period was halted as a guard approached. Ryan notified officials when he was removed for a court appearance, having been afraid to report the assault while still in the jail.

In evaluating the case, the court noted that Ryan would have to establish some level of notice of the propensity for violence by these other inmates. The jail had 15 documented incidents of violence by the inmates involved in the assault and Merriweather also alleged two other incidents of violence against inmates by these individuals. While the sheriff cited policies of constant rounds and the ability of inmates to use phones as cutting against liability, Merriweather argued that guards routinely violated these policies.

The court concluded that the one time that government officials have an obligation to protect persons from third party violence is when the person’s liberty is restrained and they are unable to care for themselves. The court asserted that Merriweather had alleged enough evidence that the Sheriff was on notice regarding violence in that area of the jail by citing the 15 documented incidents of violence involving the very same assailants. Further the court noted that Merriweather was assaulted a second time, although not sexually, in the presence of guards during recreation. Finally the court refused to dismiss the case against the sheriff since a jury could conclude that the sheriff was on notice and had failed to properly respond in protecting Ryan Merriweather from third party harm in the jail setting.

Key Point
Government Actors have a greater duty to protect persons from third party violence when the person to be protected is in government custody and cannot protect themselves.

DeShaney v. Winnebago County, 489 U.S. 189 (1989).
Rivera v. City of Providence, 402 F.3d 27 (1st Cir. 2005).
Merriweather v. Marion County, 2005 U.S. Dist. LEXIS (Indiana Southern Dis

Additional Cases
Warren v. District of Columbia is one of the leading cases of this type. Two women were upstairs in a townhouse when they heard their roommate, a third woman, being attacked downstairs by intruders. They phoned the police several times and were assured that officers were on the way. After about 30 minutes, when their roommate's screams had stopped, they assumed the police had finally arrived. When the two women went downstairs they saw that in fact the police never came, but the intruders were still there. As the Warren court graphically states in the opinion: "For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of their attackers."
The three women sued the District of Columbia for failing to protect them, but D.C.'s highest court exonerated the District and its police, saying that it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." - Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
There are many similar cases with same results.
  • Riss v. City of New York, 22 N.Y.2d 579, 293 NYS2d 897, 240 N.E.2d 860 (N.Y. Ct. of Ap. 1958); 
  • Hartzler v. City of San Jose, (1975) 46 Cal.App.3d 6, 120 Cal.Rptr. 5
  • Davidson v. City of Westminister, (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252
  • Westbrooks v. State, (1985) 173 Cal.App.3d 1203, 219 Cal.Rtr. 674
  • Ne Casek v. City of Los Angeles, (1965) 233 Cal.App.2d 131, 43 Cal.Rptr. 294
  • Susman v. City of Los Angeles, et al (1969) 269 Cal.App.2d 803, 75 Cal.Rptr. 240
  • Antique Arts Corp. v. City of Torrence, (1974) 39 Cal.App.3d 588, 114 Cal.Rptr. 332
  • Bowers v. DeVito, (1982) 686 F.2d 616. (No federal constitutional requirements that police provide protection.)
  • Calgorides v. Mobile, (1985) 475 So.2d 560.
  • Davidson v. Westminister, (1982) 32 Cal.3d 197, 185 Cal.Rep. 252.
  • Stone v. State, (1980) 106 Cal.App. 3d 924, 165 Cal.Rep. 339.
  • Morgan v. District of Columbia, (1983) 468 A.2d 1306.
  • Warren v. District of Columbia, (1983) 444 A.2d 1.
  • Sapp v. Tallahassee, (1977) 348 So.2d 363, cert. denied 354 So.2d 985.
  • Keane v. Chicago, (1968) 98 ILL.App.2d 460, 240 N.E.2d 321.
  • Jamison v. Chicago, (1977) 48 ILL.App.3d 567.
  • Simpson's Food Fair v. Evansville, 272 N.E.2d 871.
  • Silver v. Minneapolis, (1969) 170 N.W.2d 206.
  • Wuetrich v. Delia, (1978) 155 N.J.Super. 324, 382 A.2d 929.
  • Chapman v. Philadelphia, (1981) 290 Pa.Super. 281, 434 A.2d 753.
  • Morris v. Musser, (1984) 84 Pa.Cmwth. 170, 478 A.2d 937.
  • Weiner v. Metropolitan Authority, and Shernov v. New York Transit Authority, (1982) 55 N.Y. 2d 175, 948 N.Y.S. 141.
  • DeShaney v. Winnebago County Social Services, 489 U.S. 189, 196, 197 (1989).
For additional reading on this subject see: