Crime & Federalism

In  Huppert v. City of Pittsburg, a split panel of the Ninth Circuit Court of Appeals held that a police officer who speaks to FBI agents about police misconduct, is doing so pursuant to his official duties as a police officr.  In reaching its conclusion, the panel cited California law:

Though Huppert argues that he was repeatedly informed by the FBI that his investigatory work was outside his duties as a police officer, this is not enough to overcome California’s jurisprudence defining such duties. It is clear that in California a police officer’s official duties include investigating corruption, so as to “prevent[ ] the commission ofcrime, . . . [and] assist[ ]in its detection.” Christal, 92 P.2d at 419. While we do not know the contents of any speech that Huppert made, we do know that such conversations with the FBI would have been to “disclos[e] all information known to [Huppert]” regarding the alleged acts of corruption within the PPD. This obviously encompasses his duty to uphold the law specifically entrusted to California’s peace officers.

That language struck me as odd - as it should anyone familiar with the law of Section 1983.  In general, police have no duty to protect the public.  This is known as the no-affirmative-duty rule.  If we filed a lawsuit alleging that police officers did a shoddy police investigation, the case would be dismissed.

Now some might say, "The no-duty rule grew out of due process law.  Thus, as a matter of the Fourteenth Amendment's Due Process Clause, police have no duty to investigate corruption or prevent the commission of a crime.  As a matter of state law, they do."  I thought that argument had to be wrong, too.  Sure enough, it is.

In Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, the California Court of Appeals wrote: 

[2] The existence of a duty is a question of law.  As a general rule, a person who has not created a peril has no duty to come to the aid of another no matter how great the danger in which the other is placed, or how easily he could be rescued, unless there is some relationship between them which gives rise to a duty to act.  This rule applies to police officers as well as to other citizens: The police owe duties of care only to the public at large and, except where they enter into a special relationship, have no duty to offer affirmative assistance to anyone in particular. 

Id. at 859-60 (citations and quotation marks omitted).  So, as a matter of state law, police officers do not have a duty to investigate corruption or prevent the commission of a crime.  How then does the Ninth Circuit's split panel justify its decision?

I suppose one might say that we're discussing tort law.  But wasn't the case against Pittsburg a tort case?  A Section 1983 action is a tort.  Indeed, a fantastic casebook is entitled Constitutional Torts.  The section of the Department of Justice responsible for defending against Bivens claims (the federal equivalent of Section 1983) is entitled the "Constitutional Torts Staff."  

Shouldn't the panel at least considered the application of the no-duty rule in its analysis?

After all, if under both state and federal law a police officer could not be criminally prosecuted for failing to report misconduct; and he could not be civilly sued for not reporting misconduct: Does it really make sense to say that a police officer has a duty to report misconduct?