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Original Author: Hemsley, Sid
Date of Material: 07/05/2012

Police--Crime prevention
Governmental tort liability

Creation of Special Relationships between a Citizen and Police Officers

Reviewed Date: 05/12/2021
MTAS was asked to analyze the question of what is required for a "special relationship" to be established between a citizen and police officers, in the context of the question of whether a police department's agreement to do a neighborhood drive-through check of a homeowner's property in a neighborhood in which recent crime has occurred creates a "special relationship."

July 5, 2012

Subject: Creation of “Special relationships”

Your question is: Does a police department’s agreement, commitment or promise to send a patrol car through a certain neighborhood in the absence of a certain homeowner because of crimes committed in that neighborhood, create a “special relationship between the police department and the homeowner? Although I can find no case specifically pertinent to that question, the answer, based on numerous cases dealing with the “special relationship,” and with the separate but related doctrine of “state created danger,” the answer is no.

The U.S. Sixth Circuit Court of Appeals said in Jones v. Union County, Tennessee, 296 F.3d 417 (2002), that :
Thus, two exceptions have been recognized to the general rule that the Due Process Clause [of the Fifth Amendment to the U.S. Constitution] does not create an affirmative duty to protect. The first or “special relationship” exception occurs when the state restrains an individual so as to expose the individual to harm. Sargi v. Kent City Bd. of Educ., 70 F.2d 907, 919-11 (6th Cir. 1995) {“A special relationship can only arise when the state restrains an individual.” (emphasis in the original). The second, or “state created danger” exception occurs when the state through some affirmative conduct places the individual in a position of danger. See Kallstrom, 136F.2d at 1966. [At 428]

In Jones v. Union County, no special relationship existed between an ex-wife who was shot by her husband after the Union County sheriff’s offices failed to serve an order of protection on her ex-husband in a timely manner. She claimed, among other things, that the creation of the Order of Protection Statute by the Tennessee General Assembly created the special relationship. The Court rejected that claim, even though the order had not been served on plaintiff’s ex-husband within the time prescribed by that statute. The court reasoned that, “…[W]hatever duty Union County owed to Plaintiff as a matter of Tennessee tort law does not give rise to a constitutional duty in this case.” [At 428]

The court also rejected the plaintiff’s claim that the failure of the Union County Sheriff’s Office to serve the protective order within the prescribed time fell within the “state created danger exception,” The court, citing Sargi, v. Kent City Board of Education, 70 F.3d 907(6th Cir. 1995), declared that, “Liability under the state created danger theory must be ‘predicated upon the state’s affirmative acts which work to plaintiff’s detriment in term of exposure to danger.” [At 430] Furthermore, continued the court, “this Court, in Kallstrom also required the plaintiff to prove that she faced a special danger form the affirmative actions of the state:”

However, because many state activities have the potential to increase an individual’s risk of harm, we require plaintiff’s alleging a constitutional tort under § 1983 to show “special danger” in the absence of special relationship between the state and either the victim or the private tortfeasor. The victim faces “special danger” where the state’s actions place the victim squarely at risk, as distinguished from a risk that affects the public at large. [At 136 F.3d 1066]

Kallstrom v, City of Columbus, 136F.3d 1055 (6th Cir. 1998), above, involved the disclosure of undercover police officer’s personnel files to counsel for alleged conspirators investigated by the undercover officers, which disclosure the Sixth Circuit found created a “special danger” to those officers and their families. But in Jones v. Union County, the court’s view was that, “While the Sheriff’s Department was well aware of the seriousness of the domestic problems involving the Plaintiff and her ex-husband, its failure to serve the ex parte order of protection did not create or increase the danger posed to Plaintiff by her ex-husband, or place her specifically at risk. [At 430]

Jones v. Union County illustrates how difficult it is to support a claim of a special relationship or of special danger. It is difficult to see how the failure of a police department to perform a neighborhood drive-through, even focusing on a particular house, rises to the level of either. There is no “restraint” or custodial relationship between the police department and the homeowner that is required to establish a special relationship. Likewise, the police department’s failure in that respect does not place the homeowner “squarely at risk, as distinguished from a risk that affects the public at large.”

Also see Hudson v. Hudson, 475 F.3d 741 (6th Cir. 2007), Doe v. Claiborne County, 103 F3d 45 (6th Cir. 1996), and cases cited therein.
But note that the court in Jones v. Union County Sheriff’s Office indicated that some failures of a law enforcement agency to perform certain duties might rise to the level of a violation of the Tennessee Governmental Tort Liability Act.