GONZALES v. CITY OF BOZEMAN (2009)

[LAGC]

If there was ever a case that cried out against the idea of only police being able to legally carry guns, this is it:

On the evening of April 3, 2005, Gonzales was the lone clerk at a Town Pump store on East Main Street in Bozeman, Montana. At 9:55 p.m. a man later identified as transient Jose Mario Gonzalez-Menjivar entered the store wearing a ski cap. He held a knife to Gonzales' throat and demanded money. Gonzales was able to surreptitiously dial 911 on her cell phone shortly after Menjivar entered the store but could not talk to anyone and never knew whether the call went through. In the meanwhile, Gonzales began removing money from the safe, which was limited by a security device to dispensing $100 every two or three minutes.
..
..
Meanwhile, Leah will no doubt be dumbfounded by the Court's decision. During the course of a robbery, she managed surreptitiously to call 911. The call went through, the dispatchers ascertained what was occurring and where, and the police were sent to Leah's location. Upon arriving, they established a perimeter around the Town Pump, determined that the door was unlocked, and observed two individuals inside. They ascertained that one of the individuals (Menjivar) was directing the other individual (Leah). When the call from Leah's cell phone was dropped, the dispatchers established a connection on the store's land line. They told the officers that the male (Menjivar) was "threatening" the female (Leah) and that she was "crying" and "very frightened." The police saw Menjivar and Leah enter the restroom, where it turns out Leah was then raped. They arrested Menjivar when he left the store of his own volition. They then threatened Leah with a dog, at which point she exited the store, barefoot and wearing her Town Pump apron. They forced her to the ground and handcuffed her—although she was six months pregnant and one of the officers had recognized who she was.

Leah claims the officers acted negligently and unreasonably, but the Court holds that the officers owed her no duty to exercise reasonable care when they responded to her distress call. The Court explains that because the officers owed all members of the public a duty to protect and preserve the peace, they did not owe this duty to any members of the public. Opinion, ¶ 20. If Leah is confused by this, I, for one, do not blame her. Indeed, the Court's decision makes no sense. We have now ruled, as a matter of law, that when the police respond to a crime in progress, they have no duty to protect the victim of the crime because they have a duty to protect everybody. Thus, the victim is simultaneously entitled and not entitled to reasonable police protection. We have also ruled, as a matter of law, that regardless of expert evidence that the police breached the appropriate standard of care, they are nonetheless immune from liability for such breach.

Wow, just... WOW. The police show up within 6 minutes, form a perimeter, then just sit around outside the store twiddling their thumbs for a half-hour while they let a rape happen, and then the court rules that the city/police aren't liable for her safety, they are only responsible for the "public safety" at large?

Just remember kids, the police aren't there to protect YOU. Only YOU are responsible for your own safety.

Read that whole brief, including the dissents. Talk about disturbing:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20MTCO%2020090825179.xml&docbase=CSLWAR3-2007-CURR

[newfie11]

1. This is horrible

I think Bozeman needs to fire every policeman that was involved and get new judges. Holy shit!

[pipoman]

2. This is no surprise

to those of us who have actually studied the responsibility of law enforcement. For those who claim no need for a plan for self defense beyond calling 911 are and always have been completely wrong. "protect and serve" is a very sad joke, applied to give a feeling of security to the ignorant. The truth is the duty to protect isn't extended to a victim calling 911. The duty to protect applies only to the public at large. This is accomplished by investigation of crime after it has occurred and applying due diligence to apprehending suspects in an attempt to protect the public at large from future crimes.

Self defense, and a plan for self defense, regardless of a particular individual's physical limitations, is that individual's personal responsibility.period.

Defenders of D.C. and Chicago's bans on privately owned firearms, please tell us again how your position is justified?

[DonP]

4. We had a thread here about this a month or so ago IIRC

I remember who it was but mentioning them would be calling them out, somebody truly stupid, but when I pointed out that the police have no legal duty to protect you individually they went nuts on me, called me all kinds of stupid. Half their posts were deleted they got so crazy.

They kept insisting that you don't need a self defense option because all you do is call 911 and they'll show up and take care of the problems. I'm not sure Ms Gonalez would agree.

We should mark this post for future reference when those type of numbskulls show up again. I'm betting none of them will want to say anything on this one.

[YllwFvr]

5. ive seen many departments are removing

"protect and serve" from the patrol vehicles because it could imply a duty to protect when the courts have ruled otherwise. There is only one dept I know of around here that still has it on every vehicle.

[ileus]

3. This is what you get when lawyers make department policy...

[Logical]

6. The older I get the less I like cops. n-t

[janet118]

7. The police/security people in the U.S. are getting out of control

They (and theirs) are above the law. I don't know if the public being armed will help the situation or give police a license to kill (note - cases where person with gun protecting home is mistakenly shot or police find gun after shooting to validate killing). In the OP case, if the police arrived and saw the young woman with a gun, they may well have shot her. They still would have been excused.

I don't know how you change police culture, but I know everyone owning a gun won't make it better. I would rather reduce the number of police officers and the public who carry guns and give them all stringent psychological and skills tests.

[Euromutt]

11. It comes down to this: authority is the legitimate exercise of power

And the thing that makes authority legitimate is that the power is coupled to responsibility (and concomitant liability). A government that disavows the responsibility of protecting its individual citizens (and the concomitant liability for failing to do so) thereby abdicates the authority to deprive them of the means to protect themselves.

[discntnt_irny_srcsm]

15. It's only a matter of time...

...till the 911 caller is the mother, wife or daughter of a cop, judge or politician. I suppose that proving that some animals are more equal than others won't matter either.

[friendly_iconoclast]

16. Another claim of "friendly fire- with no examples to cite.

I don't know how you change police culture, but I know everyone owning a gun won't make it better.

And if you could point me at someone who wants 'everyone owning a gun', I'll be happy to disagree with them myself.

[janet118]

20. I believe that is what the OP is advocating . . .

Just remember kids, the police aren't there to protect YOU. Only YOU are responsible for your own safety.

As for recent examples of "friendly fire":

South Beach

Arizona

New York

[eqfan592]

21. Only one of those stories...

...involve a firearm on the part of the victim, and in that case it was a rifle in his own home. I believe when they were talking about "friendly fire" they were talking about a situation where a person legally carrying a firearm attempts to use the firearm to defend himself or others and is mistaken by the police as a criminal.

[friendly_iconoclast]

23. Thank you, that's what I meant. And *still* no example of it given- by anyone

I've been reading breathless accounts here at DU for years from the uninformed about how "friendly fire" incidents as you

described them are bound to happen Real Soon Now to CCW permit holders.


I've yet to read or hear about one.

[lsewpershad]

8. How did

this guy became a judge... A repuke I venture to guess... or appointed by a repuke.

[Euromutt]

10. Actually, we're talking four (or six) judges out of seven

We've got Chief "Justice" McGrath and "Justices" Warner, Morris and Rice providing the majority opinion; Leaphart and Cotter concurring that the cops aren't liable for failing to intervene, but did wrongfully arrest Ms Gonzales; and Nelson delivering the only sane opinion, namely that the arrest was wrongful, and that it's ludicrous to argue that, because the police notionally have a duty to every member of the public, they no duty to any member of the public.

[Euromutt]

9. Justice Nelson's dissent is most welcome in an otherwise stomach-churning ruling

Chalk this one up in the lengthening list of cases that includes Warren v. D.C., DeShaney v. Winnebago County and Gonzales v. Castle Rock, CO (another woman named Gonzales, another town on the eastern side of the Rockies).

It's a damn shame Justice Nelson is retiring next year, because we need more judges like him, who are willing to point out the idiocy of "public duty" doctrines that state, because the government and its agencies notionally owe their duties to all, in effect they owe them to nobody.

I wonder how ugly these cases need to get before the general public demands some change so that we can actually hold our law enforcement agencies accountable for their behavior.

[X_Digger]

12. This is nothing new.

Since at least the 1850's, with occasional cases ever couple of years up until today-- courts have repeatedly ruled that the police owe you, the individual, no personal protection unless a 'special relationship' (like being in custody) exists.

I'm going to bump my old thread on this and include this quote, if you don't mind.

[pipoman]

13. Kick

for the '911 is sufficient defense crowd'.

[discntnt_irny_srcsm]

14. What will it take?

A few quotes came to mind:

"This isn’t good at all! I swear by the Lord that you and your men deserve to die, because you failed to protect your master..."

"Now, we must all fear evil men. But there is another kind of evil which we must fear most, and that is the indifference of good men."

[Hoopla Phil]

17. Just amazing!

[jpak]

18. Wow just Wow - everyone get a gun!!!111

:rofl:

[gejohnston]

19. I fail to see the humor, please enlighten me.

[Euromutt]

22. As usual, nobody's advocating that

What we are advocating, however, is that government has no legitimate authority to deprive citizens of the means of self-defense if that same government refuses even in the most extreme circumstances to accept responsibility for protecting those same citizens, and liability for failing to do so.

I mean, a women gets raped in a gas station bathroom while a dozen cops outside fail to act, and then, to add insult to injury, they prone her out and handcuff her? Is that sort of occurrence just an unfortunate but sometimes unavoidable side-effect of government and corporate policy to you?

[jpak]

24. Your interpretation of the police action bears no relation to what really happened

from the link in the OP

<snip>

Menjivar forced Gonzales into a restroom and during the next four minutes, raped her. Neither the dispatchers nor the officers at the scene knew that this was happening. The dispatchers testified that they would have immediately notified the officers if there had been any indication that Gonzales was being raped.

Megargel believed that there could be a barricaded suspect with a hostage in the Town Pump. He requested a K-9 dog team and special response team. Menjivar and Gonzales left the bathroom and Gonzales continued to obtain money from the safe. The officers had not yet announced their presence at the scene. During the event Menjivar repeatedly threatened Gonzales with death and continued to hold a knife on her.

During these events the responding officers knew there were two people in the Town Pump but never knew whether there were more than two. From time to time they could see "shadows moving" in the dark building. Dispatch informed officers that there was a transient camp near the store and that persons from the camp could be inside the store. Officers investigated another report of a person moving on foot through the area who turned out to be a jogger. Officers did not know how many perpetrators or victims were involved or how any perpetrators were armed.

Menjivar left the store at 10:28 and was immediately arrested outside. Officers then shouted commands demanding that anyone else in the store come out. The deputy with the K-9 dog gave commands for anyone inside to come out or he would release the dog. Gonzales then came out of the store barefoot and wearing a Town Pump apron. She testified that officers directed her to show her hands and to lie on the ground and that she complied. Officer Kaycee Anderson, one of the defendants, handcuffed Gonzales and performed a pat-down search during which Gonzales said that she had been raped. Anderson immediately got Gonzales to her feet and walked her to a safe location at a police car and removed the handcuffs. Anderson asked Gonzales if she needed an ambulance, and Gonzales said that she did not because she was not hurt. Anderson drove Gonzales to the hospital for treatment. Gonzales confirmed Anderson's description of these events and testified that she was on the ground in handcuffs for about 30 seconds. Neither Menjivar nor Gonzales knew that law enforcement officers were on the scene prior to leaving the store.

<more>

The police acted properly and professionally - they did not stand around eating donuts and talking football while the victim was raped.
They did what they needed to do to secure everyone in the building and to protect themselves - and arrent the bad guy.

Is this all you guys have to justify guns everywhere all the time by everyone?? What a fucking joke.

Stupid GOP/NRA talking points fail

uber-fail

yup

[gejohnston]

25. So are you saying that she did not have the right to defend herself

Oh that's right, you think human rights are granted by the state and Kitty Genovese's neighbors were the model of civilized people because they stood around and watched while waiting for the cops to show up.

and yes, they were just standing around with their fingers up their asses. You don't need a swat team for something that minor. It is not like they had a bank job with machine guns.

[jpak]

26. I'm saying the GOP/NRA argument that the police have no duty to protect you is bullshit

Everyone already has a right to self defense

yup

[gejohnston]

28. Not NRA bullshit, that has been what the courts said.

Many who buy in the Brady/GOP bullshit do not.

[jpak]

37. This is a brief INTERPRETING the case - it is NOT a court record of the actual judge's decision

<snip>

Gonzales claims that the Bozeman and Gallatin County defendants negligently responded to the situation at the Town Pump, allowing Menjivar to rape her and that they then improperly arrested her when she came out of the store. A negligence claim depends upon establishment of a legal duty on the part of the defendant, breach of that duty, causation, and damages. Lopez v. Great Falls Pre-Release Services, 1999 MT 199, ¶ 18, 295 Mont. 416, 986 P.2d 1081. Determination of the existence of a duty is an issue of law. Lopez, ¶ 31.

¶ 20 The issue here is whether the Bozeman and Gallatin County defendants owed a duty to the plaintiff while responding to the situation at the Town Pump. The District Court held that they had no duty. The general rule, often called the public duty doctrine, is that a law enforcement officer has no duty to protect a particular person absent a special relationship because the officer's duty to protect and preserve the peace is owed to the public at large and not to individual members of the public. Nelson v. Driscoll, 1999 MT 193, ¶ 21, 295 Mont. 363, 983 P.2d 972; Eves v. Anaconda-Deer Lodge County, 2005 MT 157, ¶ 9, 327 Mont. 437, 114 P.3d 1037. Despite the public duty doctrine, a government officer may have an actionable duty to a particular individual if the officer is in a "special relationship" with that individual. There are four recognized situations in which a special relationship has been found: (1) where a statute intended to protect a specific class of persons from a particular type of harm imposes a duty; (2) where the government agent undertakes a specific action to protect a person or property; (3) where government action reasonably induces detrimental reliance by a member of the public; and (4) where the government has actual custody of the plaintiff or of a third person who harms the plaintiff. Nelson, ¶ 22.

¶ 21 While not expressly decided under the public duty doctrine, other decisions from this Court have considered whether there is a duty to protect when a governmental agent has actual custody of the plaintiff or of a third person who harms the plaintiff. Lopez; LaTray v. City of Havre, 2000 MT 119, 299 Mont. 449, 999 P.2d 1010; Prindel v. Ravalli County, 2006 MT 62, 331 Mont. 338, 133 P.3d 165. In Prindel this Court noted the "obvious similarity" between these cases and the public duty doctrine and that it may be appropriate "in the future" to "weave these parallel strands of authority together." Prindel, ¶ 26. We do so now. The decisions in Lopez, LaTray and Prindel all involve application of the fourth "special relationship" < 217 P.3d 492 > exception to the public duty doctrine identified in Nelson. As stated in Nelson, a duty may arise as an exception to the public duty doctrine when the governmental agent "has actual custody of the plaintiff or of a third person who causes harm to the plaintiff." Nelson, ¶ 22. Therefore, the decisions in Lopez, LaTray and Prindel should not be regarded as a separate line of authority to be applied in addition to the public duty doctrine. Rather, those decisions should be regarded as applicable to the issue of whether there is a custody or control exception to the public duty doctrine.

¶ 22 The District Court below held that the public duty doctrine applied to the claims against the City of Bozeman, Gallatin County and the individual officer defendants. The District Court also found that none of the Nelson special relationship exceptions applied and that therefore the defendants owed no duty to protect Gonzales from Menjivar.

<more>

The above does not support "wes gots to gets us guns cuz the courts say the cops won't protect us" GOP/NRA bullshit

again GOP/NR fail

what a joke

yup

[X_Digger]

39. You didn't actually read what you pasted-- again, did you?

*snort*

[pipoman]

36. As long as said self defense is accomplished with jpak approved

techniques and tools.

You are quick to quote, but failed to either read or quote the portion of the case which deems your post #26 bullshit at best and a complete lie on your part at worst.

¶ 20 The issue here is whether the Bozeman and Gallatin County defendants owed a duty to the plaintiff while responding to the situation at the Town Pump. The District Court held that they had no duty. The general rule, often called the public duty doctrine, is that a law enforcement officer has no duty to protect a particular person absent a special relationship because the officer's duty to protect and preserve the peace is owed to the public at large and not to individual members of the public. Nelson v. Driscoll, 1999 MT 193, ¶ 21, 295 Mont. 363, 983 P.2d 972; Eves v. Anaconda-Deer Lodge County, 2005 MT 157, ¶ 9, 327 Mont. 437, 114 P.3d 1037. Despite the public duty doctrine, a government officer may have an actionable duty to a particular individual if the officer is in a "special relationship" with that individual. There are four recognized situations in which a special relationship has been found: (1) where a statute intended to protect a specific class of persons from a particular type of harm imposes a duty; (2) where the government agent undertakes a specific action to protect a person or property; (3) where government action reasonably induces detrimental reliance by a member of the public; and (4) where the government has actual custody of the plaintiff or of a third person who harms the plaintiff. Nelson, ¶ 22.

Now really, what part of this don't you understand?

[rrneck]

27. They waited until the crime was over and enforced thr law.

Which is exactly what they were supposed to do. They defended the law (and the owner of the store's property) - not the victim.

[jpak]

30. They did not know who was in the shop or what was going on there

They did what was necessary to secure the location until they properly assessed the situation

GOP/NRA fail

yup

[gejohnston]

31. They could see through the big assed picture windows

that gas stations tend to have. They did not properly assess the situation.

[jpak]

32. They could not - that is in the court record

read it

yup

[rrneck]

33. Why didnt they go in and find out?

Yours is a very authoritarian rationalization.

[jpak]

35. They thought it might be a hostage situation - rushing in guns blazing would get people killed

which would be the authoritarian response

yup

[rrneck]

40. Who said anything about guns blazing?

Are you not able to be rational?

Do you not know the proper way to clear a building?

You are obviously more interested in the protection of corporate owned property and authority than the citizenry.

If their job had been to save people, they would have done so. As far as the police were concerned defense of the law was the first priority, followed closely by defense of property and the officers on the scene. Then the dog. Then the woman who got raped.

Read a book sometime and you will find this attitude is not without precedent.

[AtheistCrusader]

42. So did the first responders at Columbine.

Funny how that policy since changed.

[one-eyed fat man]

29. Yeah, right!

"The police acted properly and professionally - they did not stand around eating donuts and talking football while the victim was raped.They did what they needed to do to secure everyone in the building and to protect themselves - and arrent(sic) the bad guy.

While they were establishing a perimeter and hiding behind their police cruisers, they also made sure no "harm" came to the rapist until he was finished either.

Here is the jpak approved version of "crime watch!"

[jpak]

34. Read the court document - I am right, you are wrong

try again

yup

[gejohnston]

38. I did and other cases like it.

The police have no obligation to you. That is the bottom line. The police also reported that they only saw two people.

[one-eyed fat man]

41. Read the OP

"They forced her to the ground and handcuffed her—although she was six months pregnant and one of the officers had recognized who she was.

They didn't do anything to prevent her being raped EXCEPT watch! The robbery and rape were over. The crook walked out and was arrested. She walked out and they put her on the ground and cuffed her.

If some cop had not recognized her, her telling them she had been raped and robbed didn't do her much good.

It is just like the cell phone footage of Virginia Tech. You see the campus cops establishing a perimeter and wandering around aimlessly like idiots waiting for the SWAT team while you listen to the dirtbag killing people.

http://www.youtube.com/watch?v=wkrDYR-pd7I

As it happens, a cop could watch your wife beat you stupid with a rolling pin and as long as he arrested her after she was done you would get exactly what you deserve. He is under no obligation to make her quit, unless you are his prisoner. After he has cuffed you, he has a duty to protect you and not until.