Do police officers have a duty to help a drowning man?

ALSO: Are bees fish? Introducing the Schwartz Report, a new legal roundup from Unprecedented.

The three police officers stood, watching, as Sean Bickings flailed in the water and begged for his life.

“I’m going to drown! I’m going to drown!” the 34-year-old said, struggling to breathe.

“I’m not jumping in after you,” one of the officers said.

“Please help me! Please, please please!”

What should society do when our appointed protectors fail to protect? This is the first of many such philosophical questions we’re going to explore in The Schwartz Report, a new reader-supported newsletter presented by Unprecedented.

I’ve spent the past year as co-executive producer of Booksmart Studios, where I’ve helped bring you Lexicon Valley with John McWhorter, Bully Pulpit with Bob Garfield, and Banished with Amna Khalid. Those shows explored the power of language to enlighten and to control. The Schwartz Report continues that exploration, as so many of our statutes and judicial decisions come down to parsing language. In the case of Mr. Bickings and the three uninterested officers, for instance, we might ask: Does the right to “life, liberty and property” also logically require the government to proactively help its citizens in distress?

You can look forward to regular emails summarizing the latest interesting cases and dilemmas around the country — dilemmas you might never have thought about before. Should 911 operators be able to get workers’ compensation for PTSD after an especially traumatic call? Are online-ordained ministers real ministers? In the right context, might bees actually be the same thing as fish?

Read on.

You can also expect regular deep dives on a topic getting a lot of attention — red flag laws, for instance. We’ll give you the context you need to understand the news, and we’ll explain the current state of the law. (Some Republicans say red flag laws violate due process and the 2nd Amendment, but what have the courts said? Stay tuned.)

If you find this newsletter informative, thought-provoking, entertaining, or any combination of the above, please forward it to a friend — and please consider supporting my work with a paying subscription. I really appreciate it.

Now, back to the Case of the Drowning Man and the Apathetic Cops.

Tempe Police Department body cam footage.

”How far do you think he’s going to be able to swim?”

The incident started early on the morning of May 28 on a promenade near a lake in Tempe, Ariz. Police officers were responding to reports of a fight between Mr. Bickings and his wife. After a few moments, Mr. Bickings — who had three warrants out for his arrest — hopped a fence on the boardwalk and waded into the water.

“How far do you think he’s going to be able to swim?” an officer asked.

Turns out, not far. As Mr. Bickings swam, he started freaking out. He told the officers he was going to drown. An officer asked him to swim to a nearby pylon and hold on. “I can’t,” Mr. Bickings said. “Oh God, please help me! Help me!”

“He’s drowning right in front of you and you won’t help,” Mr. Bickings’s wife said. The officers told her to calm down, just wait a second while they went to get a boat. “No, no, no! Fucking swim!” the woman said.

“You’re not helping,” an officer responded.

Mr. Bickings was no longer pleading for help. He was no longer warning that he was about to die. Mr. Bickings had already gone under. About six hours later, the Tempe fire department pulled his dead body out of the water.

The three officers have been placed on paid administrative leave. City officials called the death a “tragedy.” But do police officers have a duty to rescue a drowning man with three warrants outstanding? Do they have a duty to rescue anyone?

The police have no duty to rescue.

Unfortunately for Mr. Bickings and his wife — and anyone who might find themselves in a similar position, begging for help from indifferent cops — the law is clear on this point. The only time the government has a duty to try to rescue you is if they already have you “in custody” — i.e. you’re imprisoned, or locked up at a mental institution.

But any other situation? You’re on your own.

After the 2018 Parkland shooting in Florida, some of the surviving students sued the school district and the school security guard for failing to intervene. Verdict? They didn’t have a duty to shield the students from harm. (Apparently being forced to physically remain on campus doesn’t count as being “in custody,” as much as it sometimes feels that way to teenagers.)

The case law on this is uniformly tragic. A famous Supreme Court case from the eighties established the modern understanding of a state’s duty to rescue. In 1982, a Wyoming woman notified the police that her ex-husband had hit their small child, Joshua. Local social workers interviewed the father, but he denied the allegations, and the county decided not to pursue the matter.

A year later, Joshua was admitted to the hospital with multiple bruises. The attending physician suspected child abuse, and the county once again got involved. This time, Joshua was temporarily taken from his father, and a team of doctors, detectives and several social workers met to consider the situation. But, with the advice of a lawyer, they decided there wasn’t enough evidence of child abuse to keep Joshua away from his father.

Joshua kept getting injured. Social workers kept visiting Joshua and his father. But still, for various reasons, the county took no action. Finally, in 1984, his father beat Joshua so severely that he fell into a coma, required emergency brain surgery, and was expected to spend the rest of his life in an institution “for the profoundly retarded,” as the Court wrote in the parlance of the time. A sympathetic couple adopted him when he was 12, and he spent the rest of his life with them, until he died in 2015 at the age of 36.

A family photo of Joshua DeShaney, decades after he suffered severe brain damage from his father’s beating.

Joshua’s mother sued the county, alleging that because the government doctors and social workers knew about the potential violence that could befall Joshua — and yet did little to prevent it — they violated the child’s 14th Amendment rights by unfairly depriving him of life, liberty and property without due process of law.

But when the Supreme Court finally decided the case in 1989 — five years after the cataclysmic beating — it ruled that the 14th Amendment simply didn’t go that far. “While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them,” wrote Chief Justice William Rehnquist in a 6-3 decision.

Nothing in the 14th Amendment compels the government to go out of its way to protect its citizens from danger, the court said:

Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father. …

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment.¹

The Supreme Court again upheld this principle in 2005, when it ruled 7-2 that a town and its police department couldn’t be sued for failing to enforce a restraining order — even when their failure led to the murder of a woman’s three children by her estranged husband.

In short, nothing is going to happen to those Arizona police officers. And if you ever find yourself in a similar situation, well, make sure you can swim?

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Are bees fish?

This is a weird one. A California appeals court says that for the purposes of the state’s Endangered Species Act, bees are fish.

You see, a few years ago, environmentalists asked the state to add four bumble bee species to the “at-risk” category of California’s endangered species list. Some agricultural groups sued — they really didn’t want to spend a fortune retooling their facilities and procedures to ensure that the bees were protected — and questioned whether the California Fish and Game Commission even had the authority to protect bees. The state code doesn’t list bees as one of the groups that can be protected, after all.

However, the state code does list fish... and “fish” are defined in the regulations not just as fish, but also as invertebrates... and bees technically don’t have spines... you can see where this is going.²

And the court was into it! “Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish ... is not so limited,” the court wrote. “The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened species.”

We at The Schwartz Report look forward to the addition of other great invertebrates to the list, such as slugs, furry caterpillars, and worms. (Note: The court explicitly said worms are okay, and they defined a worm as “a slender, creeping, naked, limbless animal,” so we think that this may open the door to the addition of a wide class of politicians.)

What other invertebrates do you think should be added to the endangered species list? Because in California it truly is no-holds-barred. Please leave suggestions in the comments.

And that’s the Schwartz Report! We’ll be back in a day or two. If you’ve enjoyed this newsletter, please leave a comment, forward it to a friend, click that little heart button on the website, and share it far and wide. And if you really want to support my work, please consider becoming a paying subscriber. You’ll be supporting all the work we do here at Unprecedented, and you’ll also get access to occasional subscriber-only bonus segments. Thank you for your support!

Before you go:

Don’t forget to check out Unprecedented, our podcast that focuses on the accidental guardians of First Amendment. Together with my pal Mike Vuolo and BFF Nina Totenberg, Unprecedented celebrates the regular people who pushed the boundaries of free speech to secure more rights for all Americans.

Our latest pair of episodes delves into the juicy details of how the First Amendment tackles cruelty. Do we have a constitutional right to be mean? How mean? The Dirty Joke that Made It to the Supreme Court examines whether Hustler Magazine had the right to parody the reverend Jerry Falwell; Middle Finger to God explores the Westboro Baptist Church and its penchant for picketing the funerals of fallen soldiers. Four episodes of Unprecedented are currently available for download, with four more to come.

Thanks for reading, and stay tuned.

Sincerely,
Matthew S. Schwartz
Editor of The Schwartz Report

1. This case is famous not just for its ruling, but for a memorable dissent by Justice Harry Blackmun, who lamented the court-sanctioned impotence of the government when faced with such unimaginable tragedy:

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes … “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that [the law] is meant to provide.

2. Twitter commenter @drybrarian asks: “Aren’t fish vertebrates?” Great question. Yes, technically they are. But somewhere in the convoluted history of California’s Fish and Game Code, “fish” was defined to include “invertebrates.” So here we are.