E-Newsletter Edition: June 25, 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.


Is there any case law pertaining to the liability of a police agency that has a suspect in custody and that suspect escapes?




In Deshaney v. Winnebago County Department of Social Servicesi, the United States Supreme Court stated the following:

When the State takes a person into its custody and holds him there  [*200]  against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.ii

Thus, when the government takes a person into custody, such as the case in an arrest, the government owes this person a duty of protection.  The Supreme Court reasoned that the rationale for this rule is because the government has limited the arrestee’s freedom to act on his own behalf.iii  To this end, the Supreme Court stated

it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.iv

Therefore, when the government has a person in custody, they owe that person a duty of protection, since that person cannot act freely to protect himself.  However, if that person escapes custody, he or she now has the ability to act on their own behalf.  Therefore, it would appear that the government’s duty to protect that person would end when the person escapes custody.  Additionally, the person would “assume the risk” associated with the escape.

A possible exception would be if the arrestee was very intoxicated and they were left unattended and they escaped.  For example, a DUI suspect at a roadblock is left unattended in an unsecure holding area.  The suspect wanders off and is hit by a car.  A plaintiff may argue that the arrestee was so intoxicated, they could not act rationally and the police were aware of this fact.  Thus, the police may have a duty to secure that person in a manner to protect them from themselves.

Lastly, we will examine the potential liability if an escapee harms an innocent third party.  Most likely, there would be no federal constitutional liability under the 14th Amendment Due Process Clause.  This is because, as held in Deshaney,the government does not owe the public at large protection from the criminal acts of third parties.  As the Supreme Court stated, “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”v

As always, there could be claims under state law.  Many states follow a typical “public duty doctrine” which would prevent liability if an escapee hurt an innocent third party.  For example, the Supreme Court of Georgia has held, in City of Rome v. Jordanvi, “where failure to provide police protection is alleged, there can be no liability based on a municipality’s duty to protect the general public.”vii  Liability can only exist where there is a “special relationship” between the government and the injured party.  A “special relationship” occurs when the following three conditions are met:

(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party;(2) knowledge on the part of the municipality that inaction could lead to harm; and,(3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking.viii

Thus, in Georgia, and states that follow this rule, in order for the government to be liable for injury caused by an escapee the above three condition would have to be met concerning the victim.

However, not all states follow the above.  For example, the Wyoming Supreme Court, in Natrona County v. Blakeix, held that jail personnel could be held liable if an escapee harmed a third party.  Following the Louisiana Supreme Court, the court stated

in order to recover for injuries caused by an escaped prisoner, an injured plaintiff must prove the following:

(1) negligence on the part of the custodian in managing the facility; (2) that this negligence facilitated the escape; (3) that the escapee’s actions caused the harm complained of; and, (4) that the risk of harm encountered by the plaintiff falls within the scope of duty owed by the custodian.x

Thus, in Wyoming, liability may exist if an escapee injures a third party.


i 489 U.S. 189 (1989)

ii Id.at 200

iii Id.

iv Id.

v Id.at 197

vi 263 Ga. 26 (426 S.E.2d 861) (1993)

vii Id.at 29

viii Id.

ix 2003 WY 170, 81 P.3d 948 (Wyo. 2003)

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