Failure to protect
This is the hardest page on the site to write, because the honest answer is usually no. The Supreme Court has held that the Constitution does not generally require the government to protect a person from violence by a private individual, and that a restraining order does not create a constitutional right to have it enforced. Two exceptions remain. The government must protect people it holds in custody. And in New York, New Jersey and Pennsylvania, officials who create or increase the danger themselves can be liable for what follows.
Usually not, and we would rather tell you that here than after you have spent a year hoping. The Due Process Clause limits what the government may do to you. The Supreme Court has read it as not requiring the government to protect you from someone else. Police who were slow, dismissive or absent have, in most cases, violated no federal constitutional right, however badly things ended.
Two situations are different. If the person was in government custody, the government owed a duty of protection. And if officials did not merely fail to help but made the danger worse by their own acts, three of the four states this site covers recognize a claim. The rest of this page is about telling those cases apart from the ones the law turns away.
How it happens
- Calls that bring no response. A person reports threats or violence by a partner, a relative or a neighbor, repeatedly. Officers take no report, make no arrest, and the violence continues. Standing alone, this is the pattern the law usually does not reach.
- Officers who side with the abuser. Police respond, talk amiably with the violent person in front of the victim, tell him nothing will happen, and leave. He learns he can act without consequence.
- A protected person exposed. An officer tells a suspect who reported him, or reveals a witness's name or address to the person the witness informed on.
- Left somewhere worse. Officers take a person who is intoxicated, injured or helpless out of a place of relative safety and abandon that person alone, at night, in the cold or in a dangerous area.
- Private violence allowed to proceed. Officers at a scene tell one group that it may attack another without interference, and then stand by while it does.
- An attack inside a jail. A detainee tells staff he has been threatened by a named person or a gang, asks to be moved, is ignored, and is assaulted in the housing unit.
The claim
The rule: no general duty
In DeShaney v. Winnebago County, 489 U.S. 189 (1989), the Supreme Court held that there is no general due process duty to protect a person against private violence. In Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), it held that a person has no property interest in police enforcement of a restraining order, so a failure to enforce one is not a deprivation of property without due process. Between them, those two decisions close most failure-to-protect claims before they start.
Exception one: custody
DeShaney itself names the exception. When the government takes a person into custody, it limits that person's ability to protect himself, and a duty follows. That is the basis for claims by people attacked in jails, prisons and police lockups. For a sentenced prisoner, the Eighth Amendment standard applies: the official must know of and disregard a substantial risk of serious harm (Farmer v. Brennan, 511 U.S. 825 (1994)). For a person held before trial, the claim arises under the Fourteenth Amendment, and in the Second Circuit the mental element is objective: the official knew or should have known (Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017)). The jail and prison abuse page covers those claims, including the grievance rule.
Exception two: state-created danger
The second exception covers officials who do more than fail to act.
Second Circuit (New York). Officials are liable if they affirmatively create or enhance the danger, including by implicitly condoning private violence through repeated inaction (Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993); Okin v. Village of Cornwall-on-Hudson Police Dept., 577 F.3d 415 (2d Cir. 2009)). The word that matters is "affirmatively." The claim is built on what officers said and did in front of the violent person, not on what they left undone.
Third Circuit (New Jersey and Pennsylvania). The court recognizes the state-created danger theory (Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996)). The elements of its test are not in this site's verified ledger and are not stated here.
Eleventh Circuit (Florida). Not published here. We have not verified how that court treats state-created danger, and we do not guess.
When the officer who watched was watching another officer
Everything above is about violence by private persons. If the person who hurt you was a police or correction officer and other officers stood by, that is a different and much stronger claim: all officers have an affirmative duty to intervene against constitutional violations by other officers in their presence (Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994)). See the failure to intervene page.
What they will argue
DeShaney. The first motion in every one of these cases says the complaint describes a failure to act and nothing more. To survive it, the complaint has to identify affirmative conduct: a statement to the attacker, a disclosure, a decision to move the person into danger. "They did nothing" loses. "They told him, in front of me, that they would not arrest him" is a different case.
Castle Rock. Where the claim leans on an order of protection, the defense will cite Castle Rock and say the order gave you no constitutional entitlement to enforcement. It is right about that. The order still matters as evidence of what the officers knew.
Qualified immunity. Individual officers are shielded unless they violated a clearly established right "of which a reasonable person would have known" (Harlow v. Fitzgerald, 457 U.S. 800 (1982)), and a court may decide that question first (Pearson v. Callahan, 555 U.S. 223 (2009)). In an area where liability is already the exception, this defense is strong. The closer the facts are to Dwares or Okin, the weaker it gets. See the qualified immunity page.
No policy. The city or county is liable only where an official policy or custom caused the violation (Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)). A department's documented practice of not responding to a category of calls is the kind of fact that reaches the municipality. See the Monell page.
In custody: nobody knew, and you did not grieve it. For a sentenced prisoner the defense is that no official actually knew of the threat (Farmer). Written requests to be moved are the answer. A prisoner must also exhaust available administrative remedies before suing (42 U.S.C. § 1997e(a)), though a process that is a dead end or is blocked by officials is not available (Ross v. Blake, 578 U.S. 632 (2016)).
State-law immunity. A negligence claim under state law is a separate route with its own walls. In Pennsylvania a local agency is immune except for nine listed categories of negligent acts, and police protection is not among them (42 Pa.C.S. §§ 8541, 8542). In Florida an officer has no personal tort liability unless he acted in bad faith, with malicious purpose, or with wanton and willful disregard of human rights, safety or property (Fla. Stat. § 768.28(9)(a)). The New York and New Jersey rules on when a municipality owes a duty of protection to a particular person are not in this site's verified ledger and are not published here.
What people have recovered
No public figure is published here for this kind of case. The ledger of public recoveries behind this site contains no verified failure-to-protect recovery against police, which fits how rarely these claims survive. Recoveries for harm in custody, where the duty to protect does apply, are listed on the public settlements page and discussed on the jail and prison abuse page. We will not put a number here that we have not checked against its source. What a case is worth depends on the injury, the evidence and the defenses; the what a case is worth page explains the factors.
The clock
Because so much turns on whether the facts fit an exception, these cases need an early look, and the state notice periods leave little time for one. The federal claim needs no notice of claim (Felder v. Casey, 487 U.S. 131 (1988)).
| State | Federal Section 1983 claim | State-law claim against the government |
|---|---|---|
| New York | Three years (Owens v. Okure, 488 U.S. 235 (1989); CPLR 214(5)) | Notice of claim within 90 days (N.Y. Gen. Mun. Law § 50-e(1)(a)); suit within one year and 90 days, or two years from death for wrongful death (§ 50-i(1)) |
| New Jersey | Two years (N.J.S.A. 2A:14-2); the Civil Rights Act claim needs no tort notice (N.J.S.A. 10:6-2) | Tort Claims Act notice within 90 days, a six-month wait, suit within two years (N.J.S.A. 59:8-8) |
| Florida | Four years (Fla. Stat. § 95.11(3)) | Written claim to the agency within three years (two for wrongful death), then a six-month wait (Fla. Stat. § 768.28(6)) |
| Pennsylvania | Two years (42 Pa.C.S. § 5524; Kach v. Hose, 589 F.3d 626 (3d Cir. 2009)) | Written notice within six months (42 Pa.C.S. § 5522(a)) |
If a criminal charge connected to the same events is still open against you, talk to your defense lawyer before describing them to anyone, and read the criminal case and civil case page. The New York, New Jersey, Florida and Pennsylvania pages go through each state's rules.
When officers watch officers
The duty to step in when another officer is violating someone's rights. A much stronger claim.
Failure to intervene →Harm in custody
Where the duty to protect does apply: assaults, conditions and neglect inside jails and prisons.
Jail and prison abuse →Supervisors who knew
When the people in charge answer for what they personally knew and did.
Supervisor liability →Common questions
I called the police many times and they never came. Can I sue?
Under the federal Constitution, usually not. In DeShaney v. Winnebago County the Supreme Court held that there is no general due process duty to protect a person against private violence. Not responding, by itself, is not a constitutional violation. The exception in the Second Circuit is where officials affirmatively created or increased the danger, which can include implicitly condoning an abuser's violence through repeated inaction in his presence.
I had an order of protection and the police would not enforce it. Is that a claim?
Not a federal due process claim. In Town of Castle Rock v. Gonzales the Supreme Court held that a person has no property interest in police enforcement of a restraining order. If the officers did more than fail to act, for example by assuring the abuser he would face no consequences, the state-created danger rule may apply.
My relative was attacked by another inmate in jail. Is that different?
Yes. Custody is the exception the Supreme Court recognized in DeShaney. When the government holds a person and takes away the ability to protect himself, it takes on a duty. For a sentenced prisoner the claim requires that an official knew of and disregarded a substantial risk of serious harm. A person still incarcerated must use the grievance process first.
How long do I have?
For the federal claim: three years in New York, two in New Jersey, four in Florida and two in Pennsylvania. State-law claims against a city or county need a notice of claim within 90 days in New York and New Jersey and written notice within six months in Pennsylvania. The deadline tool counts each from your date.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.