E-Newsletter Edition: September 11, 2008

Response Provided By: Brian S. Batterton, J.D.

Always note that state law may be more restrictive on police power than the U.S. Constitution.


What are the criminal and civil liabilities for officers who stop other officers for drunk driving and give them a “courtesy” ride home?



In answering this question, it is important to note at the outset, that this question involves not only law, but also law enforcement ethics.  Regarding this question, officers must always balance the rule of law and community values and expectations.  As ethics often reflects community values, it would be difficult to discuss here without knowledge of the community of the person proposing this question.  The legal aspect will be discussed below.

Regarding liability for not arresting a drunk driver, we can look to a case from the Court of Appeals of Michigan.  In Kelly v. City of Grosse Park Pointe, et al.,i  an officer observed a driver run a red light.  The officer conducted a traffic stop and issued the driver a citation and released her.  The driver later crashed into another driver, killing him.

The wife of the deceased sued the City of Grosse Park Pointe and the officer.  She alleged that, at the time the red light traffic stop, the driver was visibly intoxicated, smelled of the odor of alcoholic beverage and exhibited other signs of impairment.  The plaintiff further alleged that the City of Grosse Park Pointe has a “municipal policy or practice” whereby they would not arrest their city residents for D.U.I.  As such, the plaintiff alleged that the City violated his 14th Amendment due process rights and that 42 U.S.C. § 1983 should provide redress.  The plaintiff also alleged a state law violation for negligence.

We will first examine the 14th Amendment claim.  The court first examined the United States Supreme Court case of DeShaney v. Winnebago Co. Dept. of Social Services.ii  In this case, the county Department of Social Services took limited steps to remove a child from an abusive home.  Ultimately, the child was beaten severely and rendered mentally retarded.  The Supreme Court held that the Due Process Clause of the 14th Amendment does not require the state to guarantee a certain level of safety and security to its citizens.  As such, a state’s failure to protect an individual against private violence does not violate the Due Process Clause.

The Supreme Court did leave open the possibility that, where a “special relationship” between the government and a citizen exists, there may be a duty to protect.  However, this typically only occurs in situations such as jail settings because the relationship is established when the state limits a person’s ability to act on his own behalf.

The Michigan court then went on to apply DeShaney to the situation at hand.  Regarding the 14th Amendment Due Process claim, they held the following:

We decline to recognize a 42 U.S.C. § 1983 [and the 14th Amendment] cause of action for a violation of constitutional rights where the claim arises from an allegation of failure to protect prospective victims from the dangers posed by private parties, even where the party acting under the color of state law [the police] possesses some knowledge of an unspecified potential for harm.  Likewise, we decline to recognize that a “special relationship” sufficient to establish liability under 42 U.S.C. § 1983 is created when a police officer fails to arrest an allegedly intoxicated motorist and that motorist later injures a third party as a result of his intoxication.  Under such circumstances the officer owes the injured party no greater duty than that owed the public at large.iii

The next claim by the plaintiff is set in state law negligence theory.  The elements of a negligence claim are the following:  (1) the defendant must owe the plaintiff a duty; (2) the defendant must breach the duty owed the defendant; (3) the breach of the duty must be the proximate cause of the plaintiffs damages and (4) the plaintiff must suffer damages.

To this issue, the court held that a police officer owes a duty to protect to the public in general and not any specific person.  Therefore, no liability for arises where an individual is injured because of a breach of the duty unless there is a “special relationship” between the injured person and the officer.  Here, the court held, there was no “special relationship” between the plaintiff and the officer and the court declined to accept the proposition that an officer’s duty to arrest drunk drivers creates a “special relationship.”  Therefore, there was no liability for negligence.

Lastly, the court found that the officer was entitled to immunity in this case.  In accordance with Ross v. Consumers Power Coiv, lower-level government employees are entitled to immunity from tort liability when they (1) act during the course and scope of employment, (2) in good faith, and (3) are performing a discretionary act.  In Zavala v. Zinserv the court held that the decision to arrest or act in response to an emergency was a discretionary rather than ministerial decision.  Specifically the court stated

Police officers, especially when faced with a potentially dangerous situation, must be given a wide degree of discretion in determining what type of action will best ensure the safety of the individuals involved and the general pubic, the cessation of unlawful conduct, and the apprehension of wrongdoers.  The determination of what type of action to take, e.g., make an immediate arrest, pursue a suspect, issue a warning, await backup assistance, etc., is a discretionary-decisional act entitled to immunity.

In the case at hand, the officer testified that he believed that the driver cited for the red light violation was not intoxicated and that there were no visible signs of intoxication.  Since the officer undertook a discretionary action, within the scope of his employment and acted in good faith, the officer was also not liable.

In conclusion, this question touches three separate areas.  The first area is law enforcement ethics.  This area must be answered in light of community values and expectations specific to the community at issue.  Next, is liability which is very limited due to the fact that a decision to arrest is discretionary and the duty to protect runs to the public at large, rather than a specific member of the public.   Lastly, the question posed the potential of criminal liability.  It is unlikely that an officer would incur criminal penalties for failing to arrest a person, unless there is some specific state statute regarding this.  This area of concern is best addressed by a prosecutor in the specific jurisdiction at issue.


i 448 N.W. 2d 352 (Mich. App. 1989)

ii 109 S. Ct. 998 (1989)

iii Kelly, 448 N.W. 2d at 357

iv 363 N.W. 2d 641 (1984)

v Id.

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