By: James F. Pastor, Ph.D., J.D., CPP
Principal Expert/Managing Member
SecureLaw LLC, a Security & Legal Consultancy
Tel: (239) 327-9283
Email Dr. Pastor
The title of this article asks what some would see as a loaded question. The genesis of this question stems from the current socio-political dynamic. Avoiding divisive rhetoric while addressing significant legal and public safety concerns is my challenge.
To set the tone, please consider some highly publicized—and deeply upsetting— examples that demand our attention. The new year’s terrorist attack in New Orleans coupled with a passenger burned to death on a subway in New York City shockingly gripped the nation. Many ask: How could these tragic crimes happen? How can we prevent such carnage from happening again? Even more broadly: Why are these happening?
Such tragic events move people to alarm and fear. Though it’s wise to consider these as consequences of societal conditions and circumstances. Underlying these are almost daily videos of stores being ransacked by dozens of thieves, random attacks of pedestrians in urban areas, people being thrown on train tracks, streets filled with people stooped on drugs laying around zombie-like while others are forced to weave through some crazed urban maze—or simply avoid the location entirely.
Often these events are “witnessed” by security guards or police who are unable or prevented from acting. Yet, we as “society” have a window into these events through cameras that “capture” the crime in progress. Regrettably, security personnel too often fail to prevent, police too often fail to arrest, and prosecutors too often don’t prosecute, due to overburdened dockets, ideologically based office policies, or from legislation that prevents them from doing so.
The result: stores close, commercial areas lose their appeal, tax revenues decrease, and “no-go zones” spoil many urban areas. In many ways, these are the fuel—and act as catalysts for tragic and dramatic terroristic and immolate acts. Consequently, the “how’s” and “whys” must be assessed from larger societal circumstances, not just the immediate factors that directly led to the crime.
These questions and others are loaded with complex factors and layered with myriad “solutions,” driven too often by limited or skewed perception and raw emotion. Avoiding these are desirable, but impossible. So, it may help to “disclose” my bias and background. As we all “understand” the world from the lives we led, you are entitled to understand what informs my thinking.
Law and order are my intellectual and philosophical foundations. As an attorney for security firms, and as a former police officer, these drive my thinking and perceptions. Serving as a security and public safety expert, holding a doctorate in public policy, my work exposes the tragic—yet predictable—results of crime. While being privileged to participate in the legal system, too often the human consequences from brazen criminal acts are beyond systemic remedy. It saddens one to see crime victims without recourse, even without hope.
Failing to err on the side of law and order is at the heart of why we are losing control of our streets and the public domain. Simply put, tragic events as mentioned above are frequently the result of careless, permissive, incompetent, and ideological decision making. “Giving people space” to create disorder and chaos, as was infamously declared by a former Baltimore mayor, is at the core of our dilemma.
Criminal justice “reforms” have brought a host of mantras—such as defunding the police, reimagining public safety, “systematic racism,” are but a few of the “whys” underlying our current dilemma. Yes, people ought to “help” those who need help. The overwhelming evidence, though, is that policies derived from these mantras have not done much, if anything, to help those who need help. Instead, the result has been increased lawless behavior, migrants flooding into the country, transportation systems often riddled in chaos, streets littered with debris and human waste; while we vainly wrestle with, and hope to cope with, our “new normal.” All the while, future tragic events are certain to follow. Simply put, we are on the front end of this dilemma—it will get worse before it gets better.
So, my perspective is to “reimagine” the premise of government. Have we forgotten that the basic, even primacy, duty of government is to protect its citizens? Many do not even realize this fact. Others see the problem as the government itself. Ironically, radicals on the left and right agree on this premise.
Step back. What does it mean to “protect”? Does this involve protecting subway riders? How about people celebrating the new year on a public street? For the timely delivery of public safety to those in need? Do we defer or diminish the duty to protect in favor of some nebulous notion of “equity” or “inclusion”? Does the duty to protect simply and disdainfully involve keeping people from being “victimized” by our criminal justice system?
Admittedly, there is a need to balance both perspectives. But the pendulum has moved so far to the left that urban areas are losing control. Giving people space to adversely impact the lives of law-abiding people demonstrates a tension between rights and security. Cutting through the core of this dilemma, the result is this: Allowing some people “the right” to create disorder while interacting with law-abiding people creates perverse counterincentives. These include hurting people and stealing or damaging property by those who are inclined to do so.
Let’s recall some basic elements of a democratic society. Freedom—by its very nature— allows the free flow of people within society. Yet, “pure” freedom brings chaos, anarchy, and moral decay. Since it’s impossible to achieve “pure” freedom in a civilized society, we accept that some restrictions or constraints on freedom—or on rights—are unavoidable. This is often called “ordered liberty.”
In application, ordered liberty requires laws fostering deterrence, designed to prevent individuals from infringing on the inalienable rights of others. When deterrence does not work, then law enforcement ought to follow. Instead, mantras are leading us down a death spiral
Unfounded and ill-conceived mantras, disguised as policies, have been used to break down ordered liberty—and will ultimately diminish, even destroy, our freedoms. This consequence, I demonstrate in my latest book,1 is aptly illustrated from these questions:
My intent is not to “answer” these questions. You can decide for yourself what this means for this country—and for your life. Instead, my questions go to attorneys who practice in the system, to judges, and to policing and public policy decision makers. And, of course, to you and me, as “we the people” have a say in how our system operates. In the end, my hope this will be a primer of how to better assess, or to reimagine, the duty to protect.
Some principles may help to frame the scope of this section. What are commonly referred to as “negligence security,” “premises liability,” and similar tort claims are used to redress criminal acts committed on private property. Generally, in a negligence claim dealing with private firms and private actors, the plaintiff must prove sufficient facts to establish a duty on the part of the defendant, a breach thereof, and that plaintiff's damages were proximately caused by that breach.2
These elements apply even when the “tort” is based on a crime. Yet, there are limits to how courts give redress from crimes. A “criminal attack by a third person is only reasonably foreseeable when the circumstances are such as to put a reasonably prudent person on notice of the probability of an attack.”3
Ordinarily, a party owes no duty of care to protect another from the harmful or criminal acts of third persons. There are, however, four exceptions to this rule:4
These same elements and principles have application for municipal liability. Briefly, the question of the existence of a duty turns, in large part, on public policy considerations.5 Assessing how laws interact with sound public policy has been a crucial aspect of astute legal reasoning.
My conclusion, which will be further developed below, is that public policy demands that courts hold police and city officials liable in certain cases for damages caused by the failure of the police to protect crime victims. This does not imply police ought to be liable for all crime. As we develop this line of thinking, you will see how this could be crafted.
Many law review articles and other treatises have exhaustively analyzed the relevant issues—many of which are beyond the scope of this article. Simplifying the complexities, the logic for treating municipalities differently from corporations goes to the distinction between a general duty versus a special duty. Here is how one attorney framed this distinction:6
“As a general rule, a city (and therefore the police department) cannot be held liable for injuries as a result of its failure to provide police protection unless the city owed a special duty to the injured person. The rationale behind this general rule, is that a city’s duty to provide police protection is ordinarily one owed to the public at large and not to any particular individual or class of individuals [emphasis added].”
As with most legal distinctions, this rule has its own exceptions. Despite the general rule to the public at large [note this term as it will become more significant], municipal entities may be held liable if a “special relationship” existed between the city [typically viewed as police] and the injured person. The elements of the special relationship are:
These exceptions are typically narrowly construed. In years past, the key was identifying a specific individual who fit these exceptions. Usually this entails some direct relationship, or some known risks to that particular individual, who the police failed to protect.
But what happens when the police fail to protect not just one, but an entire cohort of people? Consider Seattle during the “summer of love.” There the city allowed, even advocated for, the creation of the Capitol Hill Autonomous Zone (CHAZ), also known as Capitol Hill Occupied Protest (CHOP). Of course, these euphemistic names did little to justify the disastrous results that followed.
What occurred can be considered a “textbook” example for extending liability due to the city’s failure to protect people. In 2023, long after the failed “social experiment” where police were banned from the “autonomous zone,” the city agreed to pay $3.65 Million in damages to business owners and residents. More than a dozen business owners and residents in the Capitol Hill neighborhood filed a lawsuit against the city over its policies that “effectively authorized the actions of the CHOP participants.” Businesses that joined the suit said they wanted to hold the city accountable for the destruction and violence the CHOP zone caused [emphasis added]. Citing The Seattle Times, attorney Angelo Calfo said in a statement “businesses and residents of Seattle’s Capitol Hill will now be compensated for the City’s mishandling of CHOP that resulted in a significant increase in crime and even loss of life.”7
Reasonable conclusions drawn from raw data reveal that this failed policy resulted in many deaths. In 2019, Seattle recorded 31 homicides. That number skyrocketed by 61% the following year to 50 homicides, the highest number recorded in 26 years.8
The 2023 settlement was not the only legal exposure that the city faced. In 2022, the city paid another $500,000 settlement for a wrongful death lawsuit in the June 2020 shooting of 19-year-old man at the “border” of CHOP.9 And still another lawsuit was asserted on behalf of a 16- year-old who was shot and killed, while a 14-year-old boy riding with him in the vehicle suffered critical injuries. Replicating a monument to this failed policy, the crashed vehicle, with a bullet hole in its windshield and badly damaged, was ransacked by people in the “autonomous zone.” This was tolerated for hours until Seattle Police eventually entered the zone to collect evidence. Two days later, then Mayor Jenny Durkan finally issued an executive order authorizing Seattle PD to raid and sweep the occupied protest zone.
Were these lawsuits and subsequent settlements simply outliers, or do they signal something more significant? The answer is a bit complicated, but illustrative. Let’s follow the logic.
Around the same time and in another west coast city, a federal court declared that that the city of Portland and its mayor took no specific action regarding an individual who was killed in a street protest. On August 29, 2020, during a pro-Trump rally, a man identifying as part of the Patriot movement was shot and killed by a self-described anti-fascist. The killer allegedly provided security for racial justice protests in Portland [emphasis added].10
The attorney representing the dead man’s estate argued that the city failed to keep demonstrators and counter demonstrators separated. The lawsuit also asserted that a “skeletal police presence,” who were directed to stay out of sight and apart from demonstrators, inevitably resulting in emboldening people to engage in violent behavior. The court further ruled that members of the public have no constitutional right to sue public employees who fail to protect them from harm inflicted by third parties. In so ruling, the court declared that the “state-created danger exception” should not apply, as government employees did not affirmatively place the plaintiff (victim) in a position of danger.11
Here, the emphasis was on specific danger to specific people. In this decision, the court distinguished the actions of Seattle, who “abruptly deserted” the police precinct, and “agreed to a ‘no response’ zone within and near CHOP’s borders.” In this judge’s mind, these facts were sufficient to support a claim that the city’s actions “foreseeably placed the plaintiffs in a worse position than they would have been,” without any city intervention. Conversely, in the Portland case, the court found that12
“At best, those actions may have increased the general risk inherent to anyone in downtown at the time; however, the state-created danger doctrine requires showing that government actors created a particular risk specific to the harmed individual [emphasis added].”
Cutting to the chase: the difference between Seattle and Portland was the “autonomous zone” in Seattle jeopardized businesses and people within the zone, but Portland’s policy was simply “aimed at the public-at-large,” meaning anyone who happened to be in downtown Portland during the protest that resulted in a deadly attack.
While the reasoning of the Portland decision may have been sound in another era, will it survive the test of time?
Indeed, this reasoning could be itself be deficient—even coldhearted. Notice, the idea that a police policy “aimed at the public-at-large” is deemed acceptable. In this logic, crime victims in the “public-at-large” have no legal recourse. Clearly, this has serious implications for those people who happen to be part of the nebulous “public-at-large” at that moment in time. In short, these people, whoever they are, have no recourse if police fail to protect them.
Interestingly, this case involved a protest, so some level of police protection typically attaches to those who exercise the first amendment right of freedom of speech and assembly. This factor also did not sway the court’s decision.
In any case, the practical effect of being in that “unfortunate place,” euphemistically called, the “public-at-large,” leaves one with few options.
When faced with this reality, and the police do not protect, should people protect themselves? Consider the Kyle Rittenhouse case in Kenosha, and the Daniel Penny case in New York. Envision a society where self-defense is needed but prosecuted when exercised. This runs counter to our natural human self-preservation response. Beyond this, when police fail to protect, people are effectively placed in a very tenuous circumstance. Security guards and other security measures may help. But, without the active involvement of the police, my sense is dangerous implications result.
Consequently, this question is larger than most think. Some additional examples will poke holes in this thinking—and demonstrate that courts ought to take a closer look at the current theories underlying the duty to protect.
Even before a truck was intentionally used to mow down and through revelers in New Orleans, a victim of a brutal attack on a New York City subway filed a lawsuit seeking damages against the MTA (Metropolitan Transit Authority). In this case, a TikTok executive was sliced with a sharp object from his forehead to his chin, resulting in an 8-inch gash on his face that required 100 stitches to close.
In December 2024, his attorney filed a lawsuit alleging that the MTA’s “systemic negligence” was as responsible for his injuries as was the madman who committed the crime.13 This incident occurred on May 10, 2023, just weeks after Daniel Penny’s chokehold death of a reckless and maniacal MTA rider, Jordan Neely.
The facts in this case resemble the Penny-Neely incident. Here the TikTok executive saw the irrational man arguing with an older rider and intervened to help. Unfortunately, just as with Penny-Neely, this did not end well. As the good Samaritan sought to intercede, he was brutally slashed. As has become too typical, the offender had an extensive rap sheet including nine arrests between 2016 and 2021, and assault and strangulation charges in 2023.14
The attack was the “foreseeable result of systemic negligence by the Metropolitan Transportation Authority, which failed to enforce its own safety policies, respond to emergencies, and protect its passengers from foreseeable harm” (emphasis added). The lawsuit further alleged that the MTA failed to take extra steps to keep people safe, “despite a documented increase in violent incidents on the subway.” The New York Post reported that while some violent crime in the subways is down in 2024, murders have spiked a stunning 60% in 2024 as of September. Worse, when this victim was slashed in May 2023, subway crime was up about 20% compared to 2019.15
Of course, the victim here was just another person in the “public-at-large” who happened to be at the wrong place at the wrong time. My sense is this standard will not pass legal scrutiny for much longer.
One alternative theory is to embrace “systemic negligence.” More typical in health care, systemic neglect essentially entails a pervasive type of neglect that can occur in many different systems.
The notion of “systemic negligence” fits well in the backdrop of “defunding” and “systemic racism.” Since these “theories” contend that the system is the problem, the “solution” sought is to change the system. Framing this as “criminal justice reform,” the approach is to keep as many people out of the system as possible.
Hence the operative question: Do these theories result naturally and inevitably, through systemic neglect, in creating conditions ripe for crime? Though this legal reasoning may not be ripe, this is where we may be headed.
In what may be a classic case of systemic negligence, the tragic—and preventable— terrorist attack on New Orleans may be another tipping point toward reimagining the legal standard relating to municipal liability. The facts are already well known. A man intentionally drove a pickup truck into a crowd of revelers on Bourbon Street in New Orleans' French Quarter in a deadly rampage early on New Year's Day. At least 14 people were killed before the attacker died in a shootout with police. Dozens of others were injured in the attack. A black ISIS flag was flying from the truck’s rear bumper.16
The Federal Bureau of Investigation initially denied that the attack was terrorism, and within hours did an about face, admitting the obvious.
Almost immediately, a damming security consulting report from 2019 was released that should send chills down the spines of people who happen to be in the “public-at-large.” The consulting firm stated security in New Orleans’ French Quarter was hampered by politicking among various law enforcement agencies, private security firms, and other stakeholders. CNN noted that it painted a “portrait of a city whose dysfunction inhibited its ability to protect the storied neighborhood.”17
Significantly, the report by private security firm Interfor International “strongly” recommended bollard mobilization on Bourbon Street be fixed and improved “immediately.” This was in 2019. CNN noted this stark warning that appears tragically prophetic after the New Year’s truck attack. Unfortunately, the bollards were not fixed—and the truck was able to easily maneuver around a lone parked police car onto a sidewalk before commencing his rampage in the French Quarter.
Obviously, the recommendations seeking to guard against vehicle ramming were crucial. Even more significant, though, were what CNN calls the “foremost security-focused systemic recommendation.” That is: significant steps ought to be taken to consolidate the disparate security and policing resources in the French Quarter. Pointedly, Don Aviv, CEO of the consulting firm, likened the disparate agencies and stakeholders to “fiefdoms,” with each fighting for dollars and control within an area less than one square mile.18
Just as obviously, the first lawsuit against the City of New Orleans and the New Orleans Police Department for negligence occurred just over a week after the attack. Attorneys at Maples and Connick law firm alleged New Orleans failed to implement basic safety precautions for citizens and visitors, paving the way for the attack on New Year’s Day. According to the firm, “the evidence will demonstrate that the attack was foreseeable and preventable, as the suspect exploited police negligence.”19
Adding insult to injury, the backstory may even be worse. Incompetence, neglect, and/or other levels of negligence cannot adequately describe failing to resolve this known vulnerability. With tragedy fresh in our minds, the New Orleans police chief stated on camera that she did not know the city had “archers” [street blocking devices] available to them. This occurred a day after the tragic event claimed fourteen lives and injured many others. Adding to this hodgepodge of factors, the NOPD had previously indicated that safety barriers were not working prior to the attack. Finally, the NOPD characterized they were working at 100% staffing, yet the agency was hundreds of officers short following a federal consent decree that saw a 100% increase in violent crime in the city. These factors scream negligence, even gross negligence. Or, more pointedly of systemic negligence.
This article barely scratches the surface of the structural [systemic] problems facing policing agencies that have been crippled by ideologically driven municipal leaders. Though my biases go to police officers, as I know how hard the job is, the reality is crime has consequences: personal, economic, psychological, environmental, among other implications.
Realizing that the traditional public-private distinction is premised on this reality: Liability against a municipality is liability against property owners and taxpayers who live and do business in the affected municipality. Making taxpayers pay for failing to protect crime victims has not been something courts have traditionally relished. Though this resistance has been softened by cities paying hundreds of millions to victims of police abuse and misconduct.
Yet is there a qualitative difference between taxpayers paying victims of police abuse as compared to taxpayers paying when policies foster crime due to systemic negligence?
This is not to ignore negative consequences that may result from the proposed changes in how police negligence standards are handled. A famous public policy notion of “unintended consequences” comes to mind. Yet, the status quo has resulted in many significant negative consequences. Indeed, I make the case that many of these policy decisions were intended to manifest the results we are seeing now.20
Though this conclusion is beyond the scope of this article, these policies are what they are. The consequences, however, are fair game. We need to take a hard look at why city and police officials were allowed (and continue) to “experiment” on policies that are likely to result in more crime and more disorder. If relevant data, both quantitative and qualitative, tends to support this conclusion, why should those who enact such policies be free from accountability— and liability?
Using tort language, was it foreseeable that these policies resulted in crimes that otherwise would not have been committed? So again, consider these questions:
As you consider these questions, consider that another consequence of accountability and liability is improvement. The threat of being deemed accountable and liable motivates actors to do better. Indeed, it often results in correcting the policies or behaviors that led to these sanctions.
Just as police misconduct cases, one crucial desire is to correct bad behavior and policies, to vet out bad actors, to train up to better standards. The proposed changes articulated in this article would also have the additional incentive of correcting bad policies and behaviors.
Finally, as a tragic postscript, though not directly on point, as this article is being drafted, wildfires are raging out of control in Los Angeles. Though relevant facts are not yet known, and there is no determination now of arson being the cause, this tragedy is again littered with a series of failures on the part of government, both municipal and otherwise. So, as this may not involve crime by third parties, it looks and feels like another classic case of systemic negligence.
In closing, I don’t pretend that this short article answers all questions relating to this matter. What I hope comes from this is that we take a hard look at the ideas advanced in this article, to see this in a new light. As time ticks on, the impact of policies built on mantras leave many crime victims without recourse. It’s time to reimagine what is shown to be broken.
1 James F. Pastor, You Say You Want a Revolution: A Compelling & Cautionary Tale That Lies Ahead, Defiance Press C Publishing, August 2022.
2 See for example: McKenna v. AlliedBarton Sec. Servs., LLC, 2015 IL App (1st) 133414.
3 See for example: Haupt v. Sharkey, 358 Ill. App. 3d 212, 219 (2005).
4 See for example: Iseberg v. Gross, 227 Ill. 2d 78, 88 (2007); MacDonald, 361 Ill. App. 3d at 382.
5 Bajwa, 208 Ill. 2d at 427.
6 Robert Corbett, Can the Police be Sued for Failure to Take Action or Failure to Protect Someone? @ https://www.robcorbettlaw.com/post/police-liability-for-inaction retrieved on 1-7-25.
7 Emma Colton, Seattle to Pay Millions to Settle Lawsuits Over George Floyd Inspired ‘Autonomous Zone,’ Fox News @ https://www.foxbusiness.com/lifestyle/seattle-to-pay-millions-to-settle-lawsuit-over-damages- from-george-floyd-inspired-autonomous-zone-protests retrieved on 1-7-25.
8 Ibid.
9 Seattle faces another CHOP lawsuit as family claims city failed to protect teen gunned down at camp @ https://www.capitolhillseattle.com/2022/07/seattle-faces-another-chop-lawsuit-as-family-claims-city- failed-to-protect-teen-gunned-down-at-camp/ retrieved on 1-7-25.
10 Lawsuit filed over man killed in Portland protests dismissed, AP @ https://apnews.com/article/sports- crime-oregon-lawsuits-portland-ad721e098aa98dbb55c4eb28c10406ef retrieved on 1-7-25.
11 Ibid.
12 Ibid.
13 Kathianne Boniello, Dec. 14, 2024, TikTok exec randomly slashed by maniacal stranger on subway sues MTA for ‘systemic negligence,’ New York Post @ https://nypost.com/2024/12/14/us-news/tiktok-exec-randomly- slashed-by-maniacal-stranger-on-subway-sues-mta-for-systemic- negligence/?utm_source=outlookCutm_campaign=android_nyp retrieved on 1-7-25.
14 Ibid.
15 Ibid.
16 Tucker Reals and Kerry Breen, At least 14 killed, dozens hurt on Bourbon Street in New Orleans as driver intentionally slams truck into crowd; attacker dead, CBS News, January 2, 2025 @ https://www.cbsnews.com/news/new-orleans-vehicle-crash-bourbon-street-crowd-casualties-shooting/ retrieved on 1-7-25.
17 Pamela Brown and Dakin Andone, ‘Politics and bickering’ hindered New Orleans’ French Ǫuarter security, consulting firm found in 2019 report, CNN, January 6, 2025 @ https://www.cnn.com/2025/01/06/us/new- orleans-attack-security-politics-infighting/index.html retrieved on 1-7-25.
18 Ibid.
19 New Orleans firm to file lawsuit against NOPD after New Year’s attack, Law Officer, January 4, 2025 @ https://www.lawofficer.com/new-orleans-firm-to-file-lawsuit-against-nopd-after-new-years-attack/ retrieved on 1-7-25.
20 See again: James F. Pastor, You Say You Want a Revolution: A Compelling C Cautionary Tale That Lies Ahead, Defiance Press C Publishing, August 2022.
Dr. James F. Pastor, PhD, JD, CPP, brings a unique and remarkable 40+ year career in Security, Policing, and Public Safety, starting as a tactical officer in Gang Crime Enforcement for the Chicago Police Department, one of the most active policing units in the country. Augmented with a doctorate in Public Policy Analysis, he understands that policies create incentives and drive human behavior. As these directly impact public safety and crime, few possess his experience, his unique insight and his security sense.
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