Recent Court Decisions: Hernandez v. Pomona

Police Had No Duty to Protect Cooperating Witness in a Criminal Investigation in the Absence of a Specific Undertaking to Protect the Witness.

Hernandez v. Pomona, 60 CrL 1077 (Cal. App. 1996).

A prosecutor presented at a gang murder trial a statement of a gang member witness that the witness had made to the police. In the statement the witness fingered a fellow gang member but the witness refused to testify at trial. A week later the witness himself was murdered. The witness's mother sued the police under 42 U.S.C. sec. 1983 on the theory that they had a special relationship with the witness that required them to protect the witness from harm, inasmuch as they had assured the witness that no harm would come to him.

Applying its state law precedents, the court rejected this theory of liability. The witness was well aware of the dangers he faced by giving the statement to the police and there was no evidence that the witness had relied upon any police assurances of personal safety. In the absence of a special undertaking by the police to protect the witness there was no duty to protect him. To impose such a duty, the court said, would unduly restrict the police from conducting an investigation and would, in effect, make them guarantors of the personal safety of those who cooperate in criminal investigations.

The court stated, in distinguishing two prior cases, Wallace v. Los Angeles, Calif., 16 Cal. Rptr. 2d 143 (1993) and Carpenter v. Los Angeles, 281 Cal. Rptr. 500 (1991), in which it had held that the police have a duty in criminal cases to warn a witness about possible danger (but no duty to protect as such):

"The present case is readily distinguishable from both the Wallace and the Carpenter cases. Each of those cases fundamentally involved a duty on the part of the public entity to warn the witness of the existence and extent of the danger he or she faced. In each case, the police had misled the witness about the magnitude of the risk involved, by failing to warn the witnesses of a known risk or lulling them into a false sense of security. In contrast here, plaintiff's allegations demonstrate that Torrez [the witness] was wholly aware of the danger he faced, perhaps more fully comprehending the extent of that danger than did the police or prosecutor. Although plaintiff alleges the police officers assured Torrez that no harm would come to him by giving a statement, there is no allegation that his assurance amounted to a specific or implicit undertaking to provide any protection for Torrez prior to, during, or after trial. The allegation is conclusionary and far off the mark of a specific promise to protect Torrez from his fellow gang members. Although the trial court gave plaintiff the opportunity to amend her complaint, she did not in any way allege that in giving this assurance the police promised, expressly or impliedly, to protect Torrez, or that Torrez relied on this statement as plaintiff did not allege that the statement 'induced a false sense of security and thereby worsened' Torrez's position (See Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d. at pp. 931-932) . . . As such, the alleged statement by the police officers did not give rise to a special relationship between defendants and Torrez out of which a duty to protect arose.

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" . . . in the present case, we are not confronted with a duty to warn, but with a duty to protect. Clearly the imposition of the latter duty, which requires the commitment of substantially greater resources than the former, should be undertaken, if at all, only after careful consideration and in the context of an explicit and well defined commitment to do so.

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"The difference between a citizen's role in assisting an animal control officer [as was involved in the case of Walker v. Los Angeles City, 192 Cal.App.3d 1393 (Cal.App.1987) where a citizen was asked by the officer to assist in capturing an abandoned dog and was injured in the process] and a citizen's role in assisting in a criminal prosecution, however, is of critical importance. While the plaintiff in Walker was asked to assist the officer, and he acceded to the request, he had no duty or obligation to do so. In contrast, it is a duty of citizenship in this country to assist law enforcement in the prosecution of crime, as evidenced by the government's power to subpoena witnesses to appear and testify at trial. The benefit citizens derive from this arrangement is the enjoyment of living in a society which actively and effectively prosecutes crimes. The duty on the part of citizens to assist in criminal prosecution does not, however, give rise to a right to prosection on demand. In a perfect world, that right would be assured, but law enforcement and government agencies charged with investigating and prosecution crimes must instead operate in a world of budgetary constraints and limited resources.

"We agree with the statement made by the court in Carpenter, albeit with different results, that '[c]riminal prosecution would screech to a grinding halt without the assistance of witnesses.' (Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d at 933) If law enforcement agencies were held to owe a duty to protect every witness who is fearful of reprisal, with attendant liability for failure to do so, one can easily suppose that criminal investigations will be inhibited from the outset. Law enforcement officials will hesitate to question potential witnesses without first determining whether the funds exist to protect them. These and other considerations compel the conclusion that absent a specific undertaking to protect a witness, there is no duty to do so in the course of investigating and prosecuting criminal activity."

A concurring Justice suggested that legislation was necessary to protect cooperating witnesses in criminal investigations.

Note: As with all the cases discussed on the web pages of LELP, do not assume the law on this subject is the same in your jurisdiction; check with your legal advisor to determine the law in your own jurisdiction and how it would apply in a particular case.

Copyright (c) 1996 Law Enforcement Legal Publications

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