Academic journal article The Review of Litigation

Trying to Touch the Untouchables: The Challenges Faced by Texas Plaintiffs Asserting Failure-to-Protect Suits against Police Departments

Academic journal article The Review of Litigation

Trying to Touch the Untouchables: The Challenges Faced by Texas Plaintiffs Asserting Failure-to-Protect Suits against Police Departments

Article excerpt


The immunity of police departments and police officers in Texas overly protects these agents against legitimate failure-to-protect suits. A combination of sovereign immunity, qualified immunity, and the public duty doctrine makes bringing a suit against police for failure-to-protect incredibly difficult-especially for victims of domestic violence. From the dearth of failure-to-protect suits in Texas, one can infer either that victims know of the safeguards protecting the police or that lawyers discuss these safeguards with victims, and as a consequence victims fail to pursue failure-to-protect suits. This Note addresses the immunity available to police departments and officers and focuses on the effects of this immunity on victims of domestic violence.

Part II addresses State sovereign immunity. Without a waiver of this immunity, police departments and officers enjoy absolute immunity, meaning that victims whom the police fail to protect have no action against these state agents. This Part will focus on the Texas Tort Claims Act, which provides an extremely limited waiver of sovereign immunity due to the good faith and reasonableness standard imposed by Texas courts. Additionally, Part II will address the impact of the Texas Tort Claims Act on victims of domestic violence.

Part III explains how qualified immunity shields police officers from liability related to discretionary functions. It also sets forth the test to establish qualified immunity and the test to determine the applicability of qualified immunity. In order to establish qualified immunity, the plaintiff must show that her claim alleges a violation of a constitutional right. In failure-to-protect suits, plaintiffs have sought redress through the Due Process and Equal Protection clauses. These constitutional claims, however, have largely failed, and, as a result, plaintiffs cannot overcome qualified immunity in Texas.

Part IV examines the Public Duty Doctrine, derived from the basic idea that a police officer's duty to the public implies no duty to individuals. An exception to this doctrine is when an officer creates the danger which injures the victim. This Part explains the theory of state-created danger, emphasizing that the Fifth Circuit has yet to address the theory. Part V sets forth recommendations for domestic violence advocates in Texas, suggesting a modification of Texas domestic violence statutes and the creation of a research group to collect evidence for Equal Protection cases.


The doctrine of sovereign immunity originated from the English common law idea that the "King can do no wrong."1 Through this doctrine, states, municipalities, and their governmental units-including police departments2-are not liable for the negligent acts of their employees absent statutory provisions providing for liability.3 In the United States, governmental immunity must be waived by the state legislature in clear, unambiguous language.4 While most states have provided a limited waiver of sovereign immunity, the immunity of police departments has generally remained intact.5 Both narrowly written and narrowly construed tort claims acts and the courts' enthusiastic protection of the police has maintained this immunity.6 In the dissent of Riss v. City of New York, Judge Keating sets forth and criticizes the judicial policy justifications for the sovereign immunity surrounding police departments: (1) fear of financial disaster resulting from a complete waiver in police sovereign immunity;7 (2) a fear that the courts would be flooded with litigation alleging police negligence;8 and (3) judicial disinclination to interfere with public discretionary decisions.9 Further, courts have opined "that 'an unfortunate few' should bear the loss rather than have the public pay the costs."10

In Riss, Judge Keating further maintains that, through simple fairness, courts should hold police departments liable for the negligent acts of police officers. …

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