Fighting the Law That Lets Officers Decline to Give Aid

It was 2 a.m. when two California Highway Patrol officers came upon a Mazda parked on the shoulder of the freeway with its hazard lights blinking.

Inside, Kristin Marie Harrington was sprawled across the front seat unconscious. The officers tapped on the window but, getting no response, drove away without summoning help. A passing tow truck driver discovered the 43-year-old Cypress woman dead two hours later from what the coroner’s office later determined was a brain hemorrhage.

The officers’ actions--or inactions--that morning nearly four years ago fueled a courtroom battle centered around little-known California case law that says public safety workers have no legal obligation to render assistance to citizens in distress.

An appeals court reviewing a negligence lawsuit filed against the CHP by Harrington’s family last month called the officers’ actions “appalling.” But citing the law, the court nevertheless sided with the CHP.

“We are completely at a loss to understand the conduct of the highway patrol officers in this case,” wrote Justice William W. Bedsworth of the 4th District Court of Appeal in Santa Ana.

Legal experts and even some police advocates share Bedsworth’s perplexity at the officers’ failure to help Harrington. But they disagree about whether the law provides police with needed protection or gives them legal cover for their lapse in judgment.

“If a cop’s duty is to protect and serve, then how can they simply leave somebody by the side of the road?” asked Andy Clarke, a Memphis, Tenn.-based civil rights attorney who specializes in police misconduct cases.

“I am surprised they didn’t break the window or something,” said Gerald Arenberg, an official with the National Assn. of Chiefs of Police. “As far as I am concerned, it may not be a lawful requirement [to assist], but ethically speaking and from training, it is your duty.

“When the courts say we don’t have a legal duty, I think that gives some officers the idea that they don’t have to be as ethical as they should be,” he added.

Courts Consistently Back Public Agencies

Despite such ethical quandaries, courts have consistently ruled in favor of public agencies in similar cases.

Earlier this year, a judge threw out a lawsuit filed by a woman against the Los Angeles Police Department’s Special Investigation Section. The woman accused police officers of watching without taking action as a Northridge bar was robbed in order to catch the perpetrators after they committed the crime, exposing patrons to danger.

“Unless they act and make the situation worse, they are off the hook,” said Alan L. Calnan who teaches tort law at Southwestern University School of Law, adding that most of his students are surprised to learn that police officers can’t be held liable for not offering help.

An officer can witness a robbery or even a murder and turn his back without worrying about legal liability. That same officer could be sued, however, if he uses excess force in apprehending that assailant.

Despite the legal protections covering police inaction, reports of such conduct are fairly rare, and law enforcement officials stressed that the vast majority of officers consider aiding people in distress part of their job.

Police for the most part defend the controversial law, saying public agencies would be opened to a flurry of lawsuits if officers were legally required to help everyone in need they come across.

“Your heart has to go out to the woman and her family,” said John Sullivan, president of the Assn. for California Tort Reform. But to change the rules “would break the bank. . . . The fundamental public policy behind this is that law enforcement can’t be everywhere at all times.”

Like many police agencies, the CHP training manual doesn’t spell out specific procedures officers must take in helping someone who appears to be in trouble, leaving the decision to “sound professional judgment.”

According to court papers, CHP Officers J. Patton and J. Mostoufi left Harrington unconscious in her car in the early hours of July 18, 1995--two hours before she was found dead along the Riverside Freeway off Coal Canyon Road in Anaheim. It’s unclear whether Harrington would have lived had the officers summoned help. Neil Martin, head of neurovascular surgery at the UCLA Medical Center, said a brain hemorrhage from an aneurysm is usually fatal.

The government never disputed the facts of the case. Jonathan Rothman, chief legal counsel for the CHP, said he could not comment on whether Patton and Mostoufi were disciplined because personnel matters are confidential.

The officers are still with the agency. Both declined to be interviewed through a department spokeswoman.

“I can’t explain their conduct,” Rothman said. However, “the superior and appeal courts recognized from the arguments that each situation is unique. . . . There can be no hard and fast rules. All agencies should stress that there is an expectation that officers will use good judgment. Officers must assess the situation on a case by case basis.”

But some law enforcement experts said they would have acted much differently if faced with similar circumstances.

“We know the person was quite sick, possibly dead or dying at that point, and they wouldn’t have known that without taking the next step,” said Stephen Bunting, executive director of the American Society of Law Enforcement Trainers.

Arenberg, with the National Assn. of Chiefs of Police, said an unconscious driver found by the side of the road may be sleeping or drunk or seriously ill.

“But the obligation of law enforcement, or firefighters or anyone in emergency services would be to make sure the person is well enough to continue after help is provided,” he said.

The officers’ conduct notwithstanding, some, like Mike Santos, a member of the International Assn. of Chiefs of Police, said it’s wrong to hold police to a higher standard than the average citizen. Making them liable for actions they don’t take would make the officers’ already difficult job nearly impossible, ey said.

Clarke, the attorney specializing in police misconduct, disagrees.

“I don’t think cops have to be everybody’s mother, but you must balance all the factors,” he said. “The courts say that they are shocked by the behavior, but at the same time they cannot give relief to the family. There is something wrong with that.”

The issue goes beyond the behavior of police officers. Heavy media attention has been focused on the case of David Cash, whose friend Jeremy Strohmeyer raped and killed a 7-year-old girl in a Nevada casino last year. Cash saw the two struggling but didn’t call authorities. Some activists expressed outrage that Cash didn’t face criminal charges for his inaction. In response, state Sen. Tom Hayden (D-Santa Monica) proposed legislation this year that would impose punishment for people who witness an assault on a child but fail to report it to authorities.

Regardless of whether Hayden’s proposal becomes law, some legal experts said it makes sense for police to adhere to tougher standards.

“You would think there should be a higher duty expected of officers,” said Mary Alexander of the Assn. of Trial Lawyers of America.

Officers Liable Only if They Do Take Action

The law, set by a landmark 1983 California Supreme Court decision, says public safety employees can be held liable only if they take actions to help someone in distress. So if officers find a stranded motorist, for example, they are liable only if they provide assistance.

Government statutes offer limited immunity against litigation if the conduct is within the scope of police or other public safety work. For example, a firefighter cannot be sued if someone gets injured during a rescue attempt unless the firefighter acted negligently. However, to do nothing is legal.

In Harrington’s case, the three-member appeals panel ruled that the CHP officers looking through Harrington’s car window was not “such exceptional conduct” as to make them liable for her death.

Without legislative change, cases such as Harrington’s have little chance of winning in the courts. Even at the federal level, the U.S. Supreme Court has ruled that states in general have no “affirmative duty” to protect their citizens.

“If the legislature wanted to pass a statute to make officers responsible for not acting, that is possible,” said Karen Blum, a professor of law at Suffolk University Law School in Boston and an expert in police misconduct.

“But I would doubt they would get a law like that passed” because it would increase liability for the states and discourage people from taking public safety jobs, she added.

That’s of little comfort to Harrington’s family, who were outraged by the officers’ inaction and shocked that the lawsuit was thrown out, said Harry Gershon, their attorney.

Harrington’s two children, Tami Marie Ramirez, who lives in Orange County, and Eric Scott Moore, of Idaho, have declined to comment on the case. They are unlikely to pursue the case further, Gershon said.

“The whole thing has come as a shock and a nightmare for the family,” he said. “They just want to put the whole incident behind them.”

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Times librarian Shelia A. Kern contributed to this report.