Radiolab - No Special Duty

Episode Date: June 17, 2022

Since the massacre that took the lives of 19 schoolchildren in Uvalde, Texas, people across the world began to ask versions of one question: why did police wait outside the door instead of protecting the kids? It's not the first time this question has come up. Two years ago, as she watched police respond to the protests that followed the death of George Floyd, Producer B.A. Parker wondered: what are police for? With the help of our Producer Sarah Qari, she found that the United States’ Supreme Court had given this a most consequential and bewildering answer. We decided to re-air this episode to shed light on how a case from 2005 upended our assumptions about the role police are meant to play in our lives. Support Radiolab by becoming a member of The Lab (https://members.radiolab.org/) today.     Radiolab is on YouTube! (https://zpr.io/MTSFMLXQWDkE) Catch up with new episodes and hear classics from our archive. Plus, find other cool things we did in the past — like miniseries, music videos, short films and animations, behind-the-scenes features, Radiolab live shows, and more. Take a look, explore and subscribe!

Wait, you're listening to Radio Lab from WNYC. Hi, I'm Lulu Miller. This is Radio Lab. We are just a few weeks out from the shooting in Uval Day, Texas. And even more recent tragedies like the drowning of Sean Bickings, a 34-year-old man in Tempe, Arizona, who drowned just four days later as three police officers looked on, refusing to intervene as he pleaded for help. One of them saying, okay, I'm not jumping in after you. Alongside all the anger and the grief, we've noticed this question bubbling up on social media and beyond about the role of police.

What is their obligation to us? Their duty. And as we've seen these questions swirling around, we've been thinking about this piece we played a while ago that takes on this question in a deep, deep way. And we wanted to play it for you today. Hey, I'm Chad Abumrah. This is Radio Lab.

Quick warning. This episode contains some strong language and graphic violence, so if you are listening with kids, you might want to sit this one out. But okay, with that out of the way, we'll start things off with. We're recording. Produce your BA Parker. Oh boy. All right. Do you know, I mean, do you have a sense of where you want to start?

Uh-huh. Sure. Okay. I'll begin I think in June, you know, the George Floyd protest were happening in full flux in New York. And Parker says since she was a journalist and forbidden from protesting, she was just stuck in her apartment feeling kind of helpless and just spending a lot of her time thinking. And I wound up having this genuinely befuddling thought. I'm just like, wait, what exactly is the police for? You mean like what is their job? Yes. That was just something

that I was really trying to figure out for myself. Now, I have to confess, initially, I didn't see how that was even a question. I mean, there are a lot of things that need to be talked about when it comes to policing in America, but their job description didn't seem to be one of them. I mean, that felt pretty clear to me.

Police were supposed to enforce the law, yes, but more than that. Police are sworn to protect and serve. They're supposed to protect us. To protect and serve. That's what they say, right? I mean, this thing you see written on the sides of their cars, protect and serve. To protect and serve the people.

Now, do they always do that? No. But that's clearly their job. Yeah, that's what you think. That's what I thought. But then, funnily enough, a friend sent me, like, an animated video. If you've ever been on the internet, I mean, you hear right now. Of this guy.

My name is Joel Azito. Name Joel Azito. And he's got a bald head, trim goatee. And in this video, he basically just tells this... Insane wild story What's out an eight-inch knife Of this thing that happened to him that took this question that I had of like what do the police do and just sort of like

Blue it open hmm Tell me more so that saw this video okay. And it was about what happened to him. And so I immediately I went and I like I searched for him and messages him. Okay. Cool, cool, cool. Um, so can you just tell me your name and where you're from? Yeah. Um, Joseph Loseido, but everyone calls me Joe. And I'm from Long Island, America, New York, but originally from Queens.

Hey Joe, is there something in the background? Yeah, oh shit. I didn't meet my TV hold on, America, New York, but originally from Queens. Hey Joe, is there something in the background? Yeah, oh shit. I didn't meet my TV hold on. Fuck, I forgot about that. Okay, how about that? Is that better? Yeah, I can't hear it now. All right. So let's go back to February of 2012.

2011, sorry. 2011, yeah. So February of 2011, February 12, it started like a regular day. I'm a creature of habit. I got dressed, got the door, went over to a wallow, got my coffee. At the time, it was only in Philly, working in New York City. So, drove to New Jersey, got on the train, took a nap.

Look up at Manhattan, Penn Station, made us way downstairs, where the subways are. At down the platform train, took a nap. Look up at Manhattan. Penn station. Made its way downstairs. Where the subways are. At down the platform, we did a minute. Got on the first train, which is the three trains. Got on the very first car, took a seat. And the very first seat. So Joseph is like at the very front of the train, a few more people got in.

And if you've taken the subway before, you know the doors are open for 10 seconds or whatever. But this morning, Joseph says, they were just sitting there with the doors open. Next thing I know, two police officers get on the subway. And they walked up to the very front of the car where there's this little door to the motorman's compartment.

So the driver is and the two officers, they go in there. Which I thought was weird, but whatever it's New York, who the hell knows. Finally, the door's closed. We start moving. But, we're crawling. As if a single person was behind the entire subway and pushing it. It was that slow. Which again was a little weird, but it was only going to get weirder. Because It was that slow. Which again was a little weird but it was

only gonna get weirder. Because it was right then. Joe noticed that there was this man. If he mid-twenties, six feet tall. He was a little dirty. Standing a few feet away from Joe. And this guy went over to the door where the officers in the driver were. He starts banging on the door. It starts yelling. Let me in. One of the officers out's back. Who were you? He says I'm the door. It starts yelling. Let me in. One of the officers south's back. Who were you? He says, I'm the police. The officer south's back. No, you're not.

We're the police. And with that, the man walks back without incident. But then Joe looks across the train and notices this other guy. Scared to death like he was gonna shit his pants a passenger This guy had clearly seen the first guy and he was alarmed so he goes up to the same door Starts knocking on it, but with a bit of subtlety as to not draw attention waving the cops to come out They keep knocking on this door putting over his shoulder back at the first guy who is now standing like a foot away from Joe and I look up at him and he says to Joe

You're going to die Then he reaches into his jacket pulls out an in-nitch knife and stabs Joe Right in his face. Oh my god under my left eye Joe said, you don't have time to think about it. He lunged at the sky's length. And that of wrapping my arms around his waist. And while I was taking him down. The sky was able to stab Joe once, twice, three times in his head.

But, I was able to get him down. Joe landed on him with all of his weight. But even with that, he still had the knife in his hand, and now all of a sudden he's flailing up with the knife. And Joe's got his hands up, trying to catch his wrist. And this guy slashes a Joe, hits his hand. Slashes again, slices his arm, and then the third time, Joe grabs the guy's wrist, slams it to the ground. And the knife came out.

According to Joe, it's then that one of the police officers was behind that little door, rushes over, grabs the guy. It says, you can get up now, we got him. At this point, I have lost a lot of blood. Joe is laying there, bleeding from his face and his back and his hands, the cops are wrestling the madman, other passengers are fleeing, and one point the man rushes up to Joe and starts pressing napkins to his wounds, and eventually the train gets to the next station. And the paramedics are waiting there.

They rush into the train. Lift me up off of the subway seat to put me on the stretcher, and as they lift me up, I pass out. And it's kind of like when you start nodding off while you're watching television, where you're nodding off, but you can still hear what's going on in the background. And Joe heard one of the officers who was on the train with him. Call me likely. L likely, what does that mean? He wasn't sure.

Eventually, they get him to a hospital. Bring me in this room, and now all of a sudden is when the pain kicks in. And it's the worst pain I've ever had. Like someone doused my head and gasoline and lit it on fire. Like pain you can't even imagine. They get it one more thing. Jacked me up pretty good. He ends up with like 80 staples in his body.

Wow. Fast forward a little bit more. My day gets a lot better. My family's there. All of a sudden my wife and my kids get there. And the midst of all this, at some point, a police officer shows up in Jo's room, introduces himself. And he holds up a mug shot of the guy. And he says, is this the guy that did this to you? And I said, yes. And he says, oh, you're a hero. He killed four people last night. Turns out, his name was Maxim Gelman, who a.k.a. at the fact is called like the butcher of Brighton Beach.

Oh. But what's pretty astonishing about this, and Joe didn't know this at the time, but the police had been searching for this guy for the past 24 hours. Like, there was a citywide manhunt for him, and that morning Joe was attacked. The police had gotten a tip that Gailman was in the subway.

And so they sent hundreds of officers down there, looking for him. Wait, so the police on the train, new? New, but they stayed behind the door. Yes. Oh, wow. And a few days later, I'm doing all these interviews. Joe, thanks for joining us.

We really appreciate it. Pleasure. It's got a black eye, gnarly scars all over his head. Oh boy. And in all these interviews, they're calling me a hero, a hero tonight, chef. And I'm saying, well, I'm not a hero. He still doesn't believe he's a hero. Because I'm just a regular guy.

You're a hero. I don't think I'm a hero. I hear you, you're a normal guy. That's cool. Instead, Joe's like, the police are the heroes, the police are heroes. You know, like I said, I'm just grateful for all the police and the EMTs that were down there to save me. Or else, like I said, I wouldn't be here right now.

Those are the heroes. I'm not a hero. But then, a few things happened. After the news media moves on, after the two police officers on the train are praised by the mayor and the chief police, after Joe testifies girlman's grand jury and gets him indicted. One day Joe is walking down the street and he notices he's being followed. I turn around quickly and I'm like can I help you. And the man told Joe listen I was part of the grand jury and I've got to tell you something. When those police officers

testified one of them told us while you were there rolling around on the floor with Galmin. He said, I started to come out, but I thought he had a gun, so I closed the door and stayed inside. After we heard that, we got furious. He goes the whole group of us. We all looked at each other like,

did he actually just admit to not coming out to do his job and leave the subway full of people with the spree killer. He said after that, he goes, I had to tell you. And I'm sitting here going like holy shit. They left a spree killer, a known spree killer, a spree killing fugitive on a subway with probably 20 people, 20, 25 people. When Joe heard this, he thought back to this moment when he was in the hospital

recovering, as when his sister came by, and she's a cop, and he told her that he heard one of the officers on the train say that he was likely. I said, what does likely mean? And she goes, they called you likely, and I go, yeah, and she turned white. And I go, what? She goes, likely means likely to die. We reached out to the police officers who were on the train through their precinct,

but never heard back. But anyway, make a long story short, after meeting that guy on the street, after thinking back to what really happened that day. That was when we decided to pursue legal action. So Joe decides to sue the police department. The problem is he couldn't get a lawyer to actually take his case to trial.

So he decides to represent himself. Got the gigantic box of legal documents. Started pouring through his case. If I had time before work, I was doing this before work. If I had time after work, I was doing this effort work. If I had time after work, I was doing this after work. And eventually, Jokey to his day in court tells his whole story

and says the cops failed him, failed everybody on that train and they should have to pay. And the judge says Mr. Luzito's version of the story sounds highly credible in his version of events' rings truth Basically says, you're telling the truth,

but then goes on to say, but based on blah, blah, blah, blah, I have to dismiss this case. Wait, what's the blah, blah, blah, blah? Why? Well, here's to the Judd said, no direct promises of protection were made to Mr. Luzito, nor were their direct actions taken to protect Mr. Luzido prior to the attack. Therefore, a special duty did not exist.

What? I'm confused. What does that mean? Well, she basically says the cops had no duty to protect Joe in that situation. What? Yeah. This is where you get to my earlier question. What are the police for? Despite what you think Legally, it turns out protecting you is not their job Protecting me is not their job. How is that even possibly true? That's not true. Is that true? How is that true? Well, it turns out it has to do with some legal precedents Castle Arck Vs. Gonzalez. That was the that was the big one. And to tell that story,

I'm actually gonna bring in some help. I'll come back, but for now, here's producer, Sarkari. Yes, hi, okay, so. I talked to this woman, Chris McDaniel Michio. In attorney and a law professor. In upstate New York. So where were you like in life or in the world, I guess, when you first got to know Jessica Lynn

Han? I was the professor of law at the University of Denver, Stern College of Law, and I was teaching law classes, and one of them was a seminar on domestic violence. And one day she comes across this one case. And I was thunder struck, completely shocked. It was a domestic violence case from Castle Rock, Colorado. So I'm reading this and I'm thinking, I need to get involved. She has to round and it up finding the number of the woman who is at the center of the case. And I met her. We became friends. The woman's name is Jessica Lanna Han. She lived

in the town of Castle Rock. She had three little girls who were 10, 9, and 7 years old. Who she adored. And back then, this is June 1999. She was getting a divorce from her husband. Simon Gonzalez. And had even taken out a restraining order against him. That protected her and the children both. And in this restraining order, there was this condition that he had to give notice if he wanted to see the children. Both. And in this restraining order, there was this condition that he had to give notice if he wanted to see the

children. If he were to violate that order, the police would have to arrest him. That's right. So a few weeks after she'd taken this restraining order. June 22nd, 1999, the kids were playing outside from what she told me Jessica was in the house. And you know how kids are, they don't talk they scream. So they scream at each other and they're playing and all of a sudden it's very quiet. She looks at the window, no kids. She knew immediately so I'm gonna take them. Because he has this history of being abusive, she was

beyond anxious. She calls the police repeatedly. She calls the police at 5.50 pm atm. at 7.30 p.m. 8.30 p.m. 10.10 p.m. and she even later that night. She goes in person to the catholic police station at 12.40 a.m. on June 23rd. And the thing was Jessica worked at the police station as a custodian. And we're not talking about a police department the size of the Bronx or the New York City police department. We're talking about a relatively small environment and people knew who she was. And people knew that Simon was violent. Basically the police told her, oh, you know, he'll bring, wait, wait, he'll bring the kids back.

Don't worry, he'll bring the kids back. Like, the kids are with their dad. It's not a big deal. And she was beside her film. Who else was she going to call? What was she going to do? The police basically ignored the restraining order. I called and met with the castle rock police nine times over a ten-hour period. This is testimony from

Jessica herself a few years later. I begged them to find my daughters to bring them to safety and arrest Simon and my Christ for help fell on deaf errors. The police went to dinner, for lost dog and had three officers tending to a routine traffic stuff and what happens is finally at 3 a.m That night Simon drove up to the casserole police station got out of his truck I think he had a clock and you just started firing at the precinct. Oh wow. Why would anybody do that? Why would anybody do that? Why would anybody do that? You know the reaction you're going to get.

Like he wanted a confrontation? He wanted to die. He knew what if he fired on the precinct, they were going to come out and they were going to start firing at him. The police come outside, open fire on Simon. He dies at the scene. And once the shooting stops, the police approach Simon's truck

and open the door. At that point they saw three dead little girls. Oh Christ. Yeah. Basically the understanding is that that Simon has killed them before arriving. Wow. And when Jessica arrived at the police station, she was taken into an interrogation room. And she was informed. She didn't get to see her children. They wouldn't let her see her children. She didn't get to see her children until they were laid out for the funeral. Eventually, after all this, Jessica decided to sue the Castle Rock Police Department, as

Jolizito would with the NYPD over a decade later. And the argument that her lawyers were making is that the police, by not enacting this restraining order, by not seeking to arrest this man and protect Jessica and her children, by failing to do those things, they violated Jessica's 14th amendment right. And the 14th again is... The 14th amendment is the state shall not deprive any person of life, liberty, or property without due process of law. I turned in the United States courts to seek justice, to hold police accountable for illegally

ignoring and demeaning me and my children in our time of need. So she filed the petition in the Federal District Court, which got kicked up to the 10th Circuit Court, and then it went up to the Supreme. Well, you're arguing now, number 04278, the town of Castle Rap versus Jessica Gonzalez. So in 2005, Jessica's case went before the Supreme Court. Mr. Chief Justice, I may appoint the Court.

And very quickly, in this case, the justices started asking these questions that were. Sir Michael, how would you describe the property? They're just very technical. What is the property your client has been deprived of? Their questions about property, and if there was training orders, property. That would be a property, right? If you had a private contract.

Or there was a lot of discussion about the word shall enforce. What the word shall means. Suppose shall does mean shall. Fine. But eventually, if you compare it to Ruth Bader Ginsburg zeroes in on the big question that we've been asking about the police's job, which is like, if we have restraining orders, don't the police have an obligation to enforce them? To my knowledge, we've never held that the police have an actionable obligation to enforce this. What does the restraining order do then? I think it does two main things. First of all, it

gives her rights against her husband, which are enforceable through contempt, and are enforceable by asking the police to enforce them. And that is the interest that the restraining order gives her. But only to ask the police, and then not the police and not obliged to respond. That is correct. She has the ability to ask the police to enforce the order, but the police have discretion under our reading of the statute. And then, just as John Paul Stevens just asks point blanks, the police have any duty at all in your view.

The police, I don't believe that the police have any sort of actionable duty. I think that what the statute says. And what you start to hear is this argument that's come up again and again at the court that if you look at the 14th Amendment or the US Constitution as a whole, there's nothing in there that says the police have to protect you from other people. In fact, that's not what the Constitution is for. The Constitution is a negative rights Constitution, meaning constitution is, keep your laws off my body. The constitution is there only to protect you from the state. There's no affirmative duty on the part of the state to protect you.

So, it protects you from the police theoretically. Right. But it doesn't demand that the police protect you from your abuse of spouse. Right. Exactly. Which is why in Jessica's case, when Justice Stevens asks, do the police have any duty at all in your view? The lawyer for the police was like, the police? No. I don't believe that the police have any. They didn't have to do anything. They didn't have to do a damn thing. The case is submitted.

And did we brutally frank? I knew we were going to lose. I knew it. But I didn't think we'd lose as badly as we did. In a 72 decision, this Supreme Court decided that the Castle Rock Police had no duty to enforce the restraining order against Jessica's ex-husband. The two dissenting judges were John Paul Stevens and Ruth Bader Ginsburg.

We reached out to the Castle Rock Police Department to interview them about Jessica Gonzalez' case, but they declined. In 2005, the United States Supreme Court threw out my case. The court also sent a message to police officers all over the country. That they can ignore their responsibilities to enforce restraining murders, and that they can get away with it. When she lost, it was as if her children had been murdered again. I went from being victimized by Simon to being victimized by Colorado and Castle Rock.

It was as if she experienced it all over again. I felt so deceived. I'd grown up thinking that my deferredment was found by the laws and that it was just and fair. But all of a sudden, when I needed to use a must, turned you back on me and my family. Obviously, the years after my tragedy have been held. It's really paralyzing. Sometimes the pain overwhelms me,

and I have to step away from my own life just to cope. They were three beautiful little girls who didn't deserve this. No child deserves this, no woman deserves this. Our system is broken, and I have paid the price for its laws. I have to say, talking to other lawyers about this case. Again, this is B.A. Parker. First of all, all these lawyers talk about this case and really quiet somber tones. Like it's a dark day for them.

It's a really dark day, but it was also an I get it. Huh, what do you mean? They, they understand. Like they don't agree with the policy, but they understand why the Supreme Court made that decision. Because they say if the Constitution says the police must protect you, well, suddenly that's going to incentivize the police to be a lot more heavy handed. Then we'd have to arrest for jaywalking.

We'd have to arrest for, you know, open container, like we'd have to arrest for everything. And you would have essentially a police state. Did you, is what you mean that they see Jessica Gonzalez as like, like in a utilitarian sense, she's the cost you pay to preserve our safety from over policing? Yes. Now that I think about that, like, are you convinced by that argument that there is that slippery slope that they, that they seem to be worried about? I mean, this idea that we either get discretion, meaning police make all their own subjective

decisions and how to enforce the law, hello racial bias, or we get a world in which they have an obligation to enforce every law across the board, but you get a police state. I don't understand why those have to be the two choices. That just seems bananas to me. I feel like there is some medium, and I don't understand why the law can't figure that out. Well, is there some kind of middle path that says The police can't have discretion, but they but they do have to protect us in certain cases. Well

sort of There's literally this special path That's coming up Right after the break. We are back with B.A. Parker and Sarah Carrey. And we just heard two different stories from two different people where the police failed to protect either of them. And we learned that according to the Constitution, police don't have to. They have no constitutional duty to either of them.

Right. And you are wondering if there is some sort of middle path to the police having to protect us. Yes. Yeah, right. So in that Supreme Court case, Glea, in his opinion, kind of hints at that. He references these cases in the lower courts that talk about this idea of a special relationship. Hello. Hi. How are you? I. Hi. How are you? I'm good.

How are you? I don't know. When I first encountered this term special relationship, I was like, what the heck? Like what does that mean? Yeah. So I called this guy John Goldberg. Professor at Harvard Law School and my main area of interest and expertise is tort law. And so real quick, tort law is the universe of law that governs what happens when one person hurts another person. And in tort law. And so real quick, tort law is the universe of law that governs what happens when one person

hurts another person. And in tort law, we have a general rule which says people aren't obliged to help you. It's your problem, it's not theirs. The classic example is like, if you're walking down the street and you see somebody in need of rescue, and you could easily and safely rescue them, but you don't. Legally, that's totally fine. You don't have to do anything for them.

What? That's horrible. Right. Morally, you've probably done something horribly wrong, but legally, you're not subject to liability. See, okay, here's where I find myself thinking all about the limitations of the law. Yeah, totally. But the idea here is we may think it's virtuous and heroic even for someone to step in and rescue another person from some danger. But do we really think that if they don't do that, they should be paying thousands or millions of dollars

to the victim because they chose not to? I don't know, man. I don't get it either. There is an exception to that in the law. What the courts have said is, if there is the right kind of special relationship between the person who's at risk and the person who could rescue them, there might be a legal duty to protect or rescue. If two people are in a special relationship, then one of them has to protect the other.

So a classic example would be if you are a hotel and you invite people to come and stay in your hotel as all hotels do, you need, you know, working locks on the door to make sure nobody breaks in in the middle of the night. You have to have a well lit parking lot or maybe even a security guard. That's all premised on the idea that a hotel or a motel or an inn owes it to its guests by virtue of their relationship. John says you'll also see this special relationship status in transit industries, airlines, taxi cabs, things like that.

Or you'll see it in these relationships between like the guardian and another person. Between prison and prisoner parents and minor children. So surely police officer citizen has got to be the right kind of special relationship, right? Yeah. But along come the courts and say, nope, actually not. However, the courts have said that there are times when the police do have a special relationship. Like, if certain conditions are present, then maybe yes. The police do have an obligation to protect you. What are the boxes you need to check in order to have a, quote, special relationship with the police so that they can protect you? Well, most states have a rule that's similar to the one that you're seeing in New York.

This is Alexander Lehoff, professor of law at the University of Connecticut. And she told me that in a lot of different places around the U.S., it comes down to the one that you're seeing in New York. This is Alexandra Lejav, professor of law at the University of Connecticut. And she told me that in a lot of different places around the US, it comes down to the very same criteria that Joe Luzito was being held to. All right, so the rule in New York and I? It's sort of like this four point test. The first of which is that there has to be direct contact between the person and the police.

So someone goes to the police and says, yeah, gotta help me. The second thing is the police then have to respond to you police and says, you gotta help me. The second thing is the police then have to respond to you and say, okay, we're on it. So some kind of promise to this individual, I will protect you. And then number three, you need knowledge on the part of the officers that not acting could lead to harm. The police also have to be aware that if they don't do anything,

that the person will suffer. That seems like getting into the head of the police. Yeah, how could you know that kind of thing? That's what's, now you're seeing why this test is so hard to meet. And then you need an addition. The fourth thing is kind of the most mind-boggling, which is the person asking for protection.

They believe, justifiably, that the police will protect them. They have to prove that they relied on the police's protection. They act differently, exactly. They change their behavior because they were like, oh, fused. Now I know I'm safe so I can go out, you know, but I wouldn't have gone out otherwise. The way the courts look at these four criteria

is like all four of them have to be checked off. Now we've got the right kind of special relationship. And in Joel Zito's case, he just didn't check those boxes. Well, very, very few people do. Wow. God, what a minefield. So if you think about it, in order for Joel Zito to have checked those boxes, he would have had to one, walk up to the police and say,

those boxes, he would have had to one, walk up to the police and say, police, I need your help, I'm about to get stabbed. And then two, the police would have needed to say, yes, we will help you because three, we know that to not help you would definitely result in harm to your face and your back and your hands. And then four, Joe would have then had to say, great, I will now relax myself and act differently in the knowledge that you will help me. That is insane. That's insane. And I guess it kind of brings me back to Parker's original question,

which is if protecting people on the streets is so damn hard to make legally binding because it's not their job. Then what is their job? Ah, now you come to the fundamental problem. So this is Professor Barry Friedman. Law professor at New York University School of Law and I'm the faculty director of the policing project there. Is there anywhere in the country that has like really clear laws

for what the local or state police is supposed to be doing or what they're not supposed to be doing? No. Really? It is remarkable. I was interested in policing for years and years and this is a light bulb that went off on my head finally

and then I started to see it everywhere that I looked. What you get is, you know, you might get a drone statute in one state and you'll get a statute about chokeholds in another state and you'll get a statute about, you know, license plate readers in another state, but it's all totally like pinprick and what you will never, ever, ever find is a comprehensive code of police conduct doesn't exist. That's so strange. And not even in, I don't know, state constitutions or something, maybe that's far cry.

You're listening to me is making me so happy because you're listening in the veil that's coming off of your eyes. And it happened to me. But no, this is a question that we oddly don't ask much about the police, but ask in most other areas of government. So if you think about it, you know, there's a whether it's the FDA or your local zoning board,

we don't usually think of government getting to do things without some sort of formal permission. Statute or a constitutional Authorization. Wait, so we've just like collectively as a society being like, hey, you're a cop and they're like, oh, okay, what does that mean? I don't know, just do what you gotta do. And they're like, oh, all right. And then that's it. Now, this is Jadden the President, to be fair.

BEEP. We called up a bunch of active duty officers. Hello. Hello. Hello. From all over the country, from South Carolina. Recruiter for the city of Charleston police department one police officer in the state of Connecticut from Illinois Florida police officer with the Lincoln police department in Nebraska When we asked them like what do they think their job is They said well to protect people. Oh, certainly that's part of it intervening and protecting again and again

They said yeah helping people is kind of cliches that sound. Our job is to protect and serve. We want to protect people's stuff. We want to protect people against burglaries trying to protect women from abusers. We have a natural duty to protect what most police officers want to be doing is standing between the general public and violent. You want to do your best to help other people and keep them out of harm's way that's Why we're doing this and and talking to them about where that idea actually comes from sure So when when you talk about duties like where is it written down that kind of gets into the code of ethics for for policing or Modos it's ethics guidelines. It is models like protect and serve

It's city charters that created police forces in those cities Charters that say things like Protect the peace maintain order enforce the law You're correct to getting this and this is something that came up in Sarakari's conversation with Barry Friedman That the actual mandates for what police are supposed to be doing are Kind of internal to the police departments themselves. And the problem is there's a lack of democratic control. We don't use the ordinary ways that we do everything else in government with regard to the police. We don't pass statutes. We don't

pass regulations. We don't then because we have those statutes do sufficient auditing to make sure that they're being followed. And the reason it's hard to hold people responsible today is because we're missing clear rules on the front to tell them what we expect them to do. And I guess in that void, it sort of, it seems like what happens is it leaves the courts to kind of debate over what those rules are and how to draw lines, I guess. Yes, and they're terrible at it. I mean, if you, again, if you think about it, the Constitution is kind of a weird way to run anything

in government. I mean, it's a framework for government, but all it is is a framework. And then the framework gets filled in with statutes. We have environmental protection statutes, and we have workplace safety statutes, but we don't have policing statutes and we have worked place safety statutes, but we don't have policing statutes.

And so basically the courts are left to try to hold people accountable or not under the vaguest of terms. That's why it's hard to hold people accountable and why people get frustrated. And the odd thing is they keep doubling down on that by creating more mechanisms on the back end to try to hold people responsible and don't notice that the whole problem is the vacuum as you described it on the front end. I mean, you've puzzled through it, Sarah, in a very logical way and everywhere you turn looking for logic, you find a twist. And that's problematic. And what bothers me about the moment we're in, I mean, there are many bothers of some things about the moment we're in, but people are walking

around very much with a bad apple's view of the problem when the truth of the matter is that the orchard just isn't regulated. Well, let me ask you a bigger question. I'm going to ask this to Parker. If it's not legally the police's job to protect us, then who's job is it? I don't know. Oh, this sounds so sad. It is. But there's this one part of the story I haven't told you yet that gives me a little hope.

Like if you think back to Joe Luzito, the guy got stabbed in the subway. It wasn't just Joe, the cops and the stabber on the train that day. This was rush hour. There were a bunch of other people on the train. And when the stabber lunged at Joe, they got out of the way. We're like, absolutely not. I went to a part to this. I'm going to the next car. Took a step back, just like the cops did. But there was one guy on the train who didn't step back, he took a step forward. My name is Alfred Douglas and I was originally born in Jamaica. I came here 26 years old and I've been living in New York ever since. What was it like to witness something like that to see someone get attacked? Miss, I could tell you that, you know, I'm 58 years old.

I've never seen somebody so viciously slashed before. So I was on the three train with Joe. I was just standing there. And as the train started moving. You know, this guy came from the back of the train. And once he walked in, my eyes was fixed on him because he didn't look right. And you that's beside this woman, the woman get up and then he move on when Cip crossed from Joe. And all of a sudden, he just launched forward jump on to Joe and then start attacking Joe.

Joe is our covered in blood. All the passenger that was up the front, you know, they start running to the back of the car while the customer was going on. The police, that was in the motorman's cabin. He opened the door and look out and then they went back in and you know, head just hidden there as Joe was getting stabbed after Joel a zero took him down And they were on the ground the police came out the the motorman car and and and grab him Maxim Gilman now fighting the cop by that time Joe couldn't see, you know His head was covered in bloody understand me so he was just crying for his wife his kids and whatever So I said to myself, you know, we got to help him.

So I just, I kneel in his stomach, you know, and you know, try to get control up his hand because the officer like have the, is gone in one hand and you know, trying to control him with one hand. So, you know, I see that he needed help. So I went there and I kneeled on him. So after he cuffed him up, no, you

know, the train like come to a stop. And when I look at Joe, you know, I've never seen a slash like that before is is neck like the back of his neck. It was just jumping like pump, you know, like, you know, blood just pumping out of him. It seemed like eternity because, you know, he thought he was gonna bleed out. You know, I thought he was gonna bleed out too. So, I, I, I, I asked, you know, if anybody have like a tissue or a napkin, but before I got a tissue or napkin, I was whole, you know, I was putting up

a plane pressure to his, to his neck. And then somebody came with a came with a piece of napkin and I used the napkin to apply the pressure. That's just me. I was raised by my grandmother. I was taught to help when you see a need for help. I just did what I thought I was right at the time. Had you heard that Joe sued the city? No, I haven't heard anything about that. And how did that go? The judge threw the case out, citing that the police has no special duty to protect him. Yeah. And the transit cop that walk the beat down there then I have no duty to protect the consumers.

Yeah. Essentially yeah. Yeah. That's news to me. Why do they have the police in New York and if they ain't got no duty to protect us? That's what I'm trying to figure. We pay no taxes. That's what I thought they were employed for.

This is new to me. I didn't know the police doesn't have a duty to protect the citizens of our country or a state. I don't, I mean, I got to process this. You know, and I know something like this exists. If this is the case that, you know, they should free up the gun laws in New York, everybody could have their protection. I was living all my life all this time, thinking, you know, the police are there to serve and to

protect you understand me, if they see something unlawful happening, it's their duty to, you know, be the judge and the jury on the spot. I can't see how they could say that it wasn't their job to protect the citizens. I didn't know. It's a strange world, man. I got to process this and I got to let my kids know.

And whoever will listen to me, I got to let them know about this because this is news to me. Like it takes to a badly wounded guy and a guy with some napkins to defeat a serial killer. Yeah. And I say this fully aware that if I were in a situation like that, I don't know if I would jump in. Oh yeah, hell no. Like the kind of thing I've done on the subway was like in February I saw a girl crying and I gave her a tissue. And now the COVID has happened, I know that I won't do that anymore. You just give her an empathetic frown face across the way.

Like, I'm sorry, ma'am. I'm sorry. I'm going to leave this clean-ex right over here and you can come and get it. Yep. special thanks to April Hayes and Katya McGuire for their documentary Home Truth about Jessica Lanahan to Cracked.com for sending us down this rabbit hole, Caroline Bettinger Lopez, Jeff Grimwood, Kristi Lopez, Anthony Hiron, Mike Wells, Keith Taylor, and to the officers that we spoke to for this piece. Chase Weatherington, Terry Cherry,

Luke Bonkowicz, Jeremiah Johnson, and Aaron Landers. I'm Chad Abumrod, thanks for listening. Radio Lab is created by Chad Abumrod and is edited by Sorn Wheeler, Lulule Miller and Lots of Nasr, RRCO hosts. Suzy Lektemberg is our executive producer. Dylan Keith is our director of sound design. Our staff includes Simon Adler, Jeremy Bloom, Becca Bressler, Rachel Qsick, W Harry Fortuna, David Gable, Maria Paz Gutiara's, Sindhu Nyanosambandam, Matt Kilti, Annie McEwan, Alex Niesen, Sarah Curry, Anna Rasquit Paz, Sarah Sandback, Aryan Wack, Pat Walters, and Molly Webster, with help from Bowen Wong. Our fact checkers are Diane Kelly, Emily Krieger, and Adam Cible.

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