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SPEAKER_12: This week on The New Yorker Radio Hour, the novelist Jennifer Egan on how we could end the enormous problem of homelessness if we had the will to do it. That's The New Yorker Radio Hour. Listen wherever you get your podcasts.
SPEAKER_03: Oh, wait, you're listening. Okay. All right. Okay. All right. You're listening to Radiolab.
SPEAKER_01: Radiolab. From WNYC. Hey, I'm Chad Abumrad. This is Radiolab. Quick warning. This episode contains some strong
SPEAKER_03: language and graphic violence, so if you are listening with kids, you might want to sit this one out. But okay, with that out of the way, we'll start things off with recording producer B.A. Parker. Oh, boy. All right. Do you know I mean, do you have a sense of where you want to start? Sure. Okay. It all began, I think, in June. You know, the George
SPEAKER_13: Floyd protests were happening in full flux in New York. And Parker says since she was
SPEAKER_03: a journalist and forbidden from protesting, she was just stuck in her apartment feeling
SPEAKER_13: kind of helpless and just spending a lot of her time thinking. And I wound up having this
SPEAKER_13: like genuinely befuddling thought of just like, wait, what exactly is the police for?
SPEAKER_03: You mean like what is their job? Yes. Like that was just something that I was really
SPEAKER_13: trying to figure out for myself. Now, I have to confess, initially, I didn't see how that
SPEAKER_03: was even a question. I mean, there are a lot of things that need to be talked about when it comes to policing in America. But their job description didn't seem to be one of them. I mean, that felt pretty clear to me. Police are supposed to enforce the law. Yes. But more than that, police are sworn to protect and serve. They're supposed to protect us
SPEAKER_19: to protect and serve. That's what they say, right? I mean, it's the thing you see written
SPEAKER_03: on the sides of their cars, protect and serve, protect and serve the people. Now, do they
SPEAKER_03: always do that? No, but that's clearly their job. Yeah, that's what you think. That's what
SPEAKER_13: I thought. But then, funnily enough, a friend sent me like an animated video. If you've
SPEAKER_05: ever been on the internet, I mean, you're here right now of this guy. My name is Joe
SPEAKER_13: Lazzito. Named Joe Lazzito. And he's got a bald head, Trem Gotee. And in this video, he basically just tells this insane wild story of this thing that happened to him that took
SPEAKER_13: this question that I had of like, what do the police do? And just sort of like, blew it open. Hmm. Tell me more. So I saw this video. Okay. And it was about what happened
SPEAKER_13: to him. And so I immediately I went and I like I searched for him and messaged him. Okay, cool, cool, cool. Um, so can you just tell me your name and where you're from? Yeah.
SPEAKER_22: Joseph Lozito. But everyone calls me Joe. And I'm from Long Island, Merrick, New York, but originally from Queens. There's something in the background? Yeah. Oh, shit. I didn't
SPEAKER_22: mute my TV. Hold on. Fuck. I forgot about that. Okay. How about that? Is that better? Yeah, I can't hear it now. All right. So let's go back to February of 2012. 2011.
SPEAKER_13: Sorry. 2011. Yeah. So February of 2011. February 12. Started like a regular day.
SPEAKER_22: 6am. Joe got up. I'm a creature of habit. Got dressed, got the door, went over to a
SPEAKER_13: Wawa. Got my coffee. At the time he was living in Philly. Working in New York City. So drove
SPEAKER_22: to New Jersey, got out on the train, took a nap. Woke up in Manhattan. Penn Station.
SPEAKER_13: Made his way downstairs. Where the subways are. Got down on the platform. Wait a minute. Got on
SPEAKER_22: the first train, which is the three train. Got on the very first car. Took a seat. In the very first
SPEAKER_22: seat. So Joe's basically like at the very front of the train. A few more people got in. And if
SPEAKER_22: you've taken the subway before, you know, the doors are open for 10 seconds or whatever. But this morning, Joe says. They were just sitting there. With the doors open.
SPEAKER_13:
SPEAKER_22: Next thing I know, two police officers get on the subway.
SPEAKER_13: And they walked up to the very front of the car where there's this little door. To the motorman's compartment. So the driver is and the two officers,
SPEAKER_13: they go in there. Which I thought was weird, but whatever. It's New York. Who the hell knows?
SPEAKER_22: Finally, the doors close. We start moving. But we're crawling as if a single person was behind the entire subway and pushing it. It was that slow, which again was a little weird, but it was only going to get weirder because it was right then. Joe noticed that there was this man in mid
SPEAKER_13: 20s, six feet tall. He was a little dirty, standing a few feet away from Joe. And this guy
SPEAKER_13: went over to the door where the officers and the driver were. He starts banging on the door. Such
SPEAKER_22: yelling. Let me in. One of the officers shouts back. Who are you? He says, I'm the police.
SPEAKER_22: The officer shouts back. No, you're not. We're the police. And with that.
SPEAKER_22: The man walks back without incident. But then Joe looks across the train and notices this other guy
SPEAKER_13: scared to death. Like he was going to shit his pants. A passenger. This guy had clearly seen
SPEAKER_13: the first guy and he was alarmed. So he goes up to the same door, starts knocking on it. But with
SPEAKER_22: a bit of subtlety as to not draw attention, waving the cops to come out. He keeps knocking on this
SPEAKER_13: door, looking over his shoulder back at the first guy who is now standing like a foot away from Joe.
SPEAKER_13: And I look up at him and he says to Joe, you're going to die. Then he reaches into his jacket,
SPEAKER_13: pulls out an inch knife and stabs Joe right in his face. Oh my God. Under my left eye. And Joe said,
SPEAKER_22: you don't have time to think about it. He lunged at this guy's legs, ended up wrapping my arms
SPEAKER_22: around his waist. And while I was taking him down, this guy was able to stab Joe once, twice,
SPEAKER_13: three times in his head. But I was able to get him down. Joe landed on him with all of his weight,
SPEAKER_22: but even with that, he still had the knife in his hand. And now all of a sudden he is flailing up with the knife and just got his hands out, trying to catch his wrist. And this guy slashes at Joe,
SPEAKER_13: hits his hand, slashes again, slices his arm. And then the third time,
SPEAKER_13: Joe grabs this guy's wrist, slams it to the ground and the knife came out.
SPEAKER_13: According to Joe, it's then and only then that one of the police officers who was behind that little door rushes over, grabs the guy and says, you can get up now. We got him. At this point,
SPEAKER_22: I've lost a lot of blood. Joe is laying there bleeding from his face and his back and his hands.
SPEAKER_13: The cops are wrestling the madman. Other passengers are fleeing. At one point, a man rushes up to Joe and starts pressing napkins to his wounds. And eventually the train gets to the next station and the paramedics are waiting there. They rush into the train, lift me up off
SPEAKER_22: of the subway seat to put me on the stretcher. And as they lift me up, I pass out. And it's kind of like when you start nodding off while you're watching television where you're nodding off, but you could still hear what's going on in the background. And Joe heard one of the officers who
SPEAKER_13: was on the train with him call me likely. Likely? What does that mean? He wasn't sure.
SPEAKER_13: Eventually they get him to a hospital. Bring me in this room. And now all of a sudden is when the
SPEAKER_22: pain kicks in and it's the worst pain I've ever had. Like someone doused my head in gasoline and lit it on fire. Like pain you can't even imagine. They get him on morphine. Jacked me up pretty
SPEAKER_22: good. He ends up with like 80 staples in his body. Fast forward a little bit more. My day gets a lot
SPEAKER_22: better. My family's there. All of a sudden my wife and my kids get there. In the midst of all this,
SPEAKER_13: at some point, a police officer shows up in Joe's room, introduces himself, and he holds up a mug
SPEAKER_22: shot of the guy. And he says, is this the guy that did this to you? And I said, yes. And he says, oh, you're a hero. He killed four people last night. Turns out his name was Maxim Gelman,
SPEAKER_13: who AKA after the fact is called like the butcher of Brighton Beach. But what's pretty astonishing about this, and Joe didn't know this at the time, but the police had been searching for this guy for the past 24 hours. Like there was a citywide manhunt for him. And that morning Joe was attacked. The police had gotten a tip that Gelman was in the subway. And so they sent hundreds of officers down there looking for him. Wait, so the police on the train knew? Knew. But they they stayed
SPEAKER_03: behind the door? Yes. Oh wow. And a few days later, I'm doing all these interviews. Joe,
SPEAKER_12: thanks for joining us. We really appreciate it. My pleasure. He's got a black eye,
SPEAKER_13: gnarly scars all over his head. Wow. Oh boy. Oh boy. And in all these interviews, they're calling me a hero. A hero tonight, Jeff. And I'm saying, well, I'm not a hero.
SPEAKER_22: He still doesn't believe he's a hero. Because I'm just a regular guy. You're a hero. I don't
SPEAKER_22: think I'm a hero. I hear you. You're a humble guy. That's cool. Instead, Joe's like, the police are the heroes. The police are heroes. You know, like I said, I'm just grateful for all
SPEAKER_21: the police and the EMTs that were down there to save me or else, like I said, I wouldn't be here right now. Those are the heroes. I'm not a hero. But then a few things happened. After the news
SPEAKER_13: media moves on, after the two police officers on the train are praised by the mayor and the chief of police, after Joe testifies at Gelman's grand jury and gets him indicted, one day, Joe is walking down the street and he notices he's being followed. I turn around quickly and I'm like, can I help you? And the man told Joe, listen, I was part of the grand jury and I've got to tell you something. When those police officers testified, one of them told us while you were there rolling around on the floor with Gelman. He said, I started to come out, but I thought he had
SPEAKER_22: a gun. So I closed the door and stayed inside. After we heard that, we got furious. He goes, the whole group of us, we all looked at each other. Like, did he actually just admit to not coming out to do his job and leave the subway full of people with a spree killer? He said, after that, he goes, I had to tell you. And I'm sitting here going like, holy shit. They left a spree killer, a known spree killer, a spree killing fugitive on a subway with probably 20 people, 20, 25 people. When Joe heard this, he thought back to this
SPEAKER_13: moment when he was in the hospital recovering. It was when his sister came by, she's a cop, and he told her that he heard one of the officers on the train say that he was likely. I said, what does likely mean? And she goes, they called you likely? And I go, yeah. And she turned white.
SPEAKER_22: And I go, what? She goes, likely means likely to die.
SPEAKER_13: We reached out to the police officers who were on the train through their precinct, but never heard back. But anyway, make a long story short, after meeting that guy on the street, after thinking back to what really happened that day, that was when,
SPEAKER_22: that was when we decided to pursue legal action.
SPEAKER_13: So Joe decides to sue the police department. Problem is, he couldn't get a lawyer to actually take his case to trial. So he decides to represent himself. Got this gigantic box of legal documents,
SPEAKER_22: started pouring through his case. If I had time before work, I was doing this before work. If I
SPEAKER_22: had time after work, I was doing this after work. And eventually, Joe gets his day in court,
SPEAKER_13: tells his whole story and says the cops failed him, failed everybody on that train, and they should have to pay. And the judge says Mr. Lozito's version of the story sounds highly credible. And his version of events rings true. Basically says,
SPEAKER_22: you're telling the truth, but then goes on to say, but based on blah, blah, blah, blah, blah, I have to dismiss this case. Wait, what's the blah, blah, blah, blah, blah? Why?
SPEAKER_13: Well, here's what the judge said. No direct promises of protection were made to Mr. Lozito, nor were there direct actions taken to protect Mr. Lozito prior to the attack. Therefore, a special duty did not exist. What? I'm confused. What does that mean?
SPEAKER_13: Well, she basically says the cops had no duty to protect Joe in that situation. What? Yeah. This is where you get to my earlier question. What are the police for? Despite what you think, legally, it turns out protecting you is not their job. Protecting me is not their job. How is that even possibly true? That's not true.
SPEAKER_03: Is that true? How is that true? Well, it turns out it has to do with some legal precedents.
SPEAKER_13: Castle Arc vs. Gonzales. That was the big one. And to tell that story, I'm actually going to
SPEAKER_13: bring in some help. I'll come back, but for now, here's producer Sara Khari.
SPEAKER_08: Yes. Hi. Okay. So I talked to this woman, Chris McDaniel-Michio. An attorney and a law professor. In upstate New York. So where were you, like in life or in the world, I guess, when you first got to know Jessica Lanahan? I was the professor of law at the University of Denver Sturm College of Law, and I was teaching
SPEAKER_11: law classes, and one of them was a seminar on domestic violence.
SPEAKER_08: And one day she comes across this one case. And I was thunderstruck, completely shocked. It was a domestic violence case from Castle Rock, Colorado. So I'm reading this and I'm thinking, I need to get involved.
SPEAKER_08: She asked around, ended up finding the number of the woman who was at the center of the case. And I met her. We became friends. The woman's name is Jessica Lanahan. She lived in the town of Castle Rock. She had three little girls. Who were 10, 9, and 7 years old. Who she adored. And back then, this is June 1999, she was getting a divorce from her husband, Simon Gonzalez, and had even taken out a restraining order against him. That protected her and the children. Both. And in this restraining order, there was this condition that he had to give notice if he wanted to see the children.
SPEAKER_11: If he were to violate that order, the police would have to arrest him.
SPEAKER_08: That's right. So a few weeks after she'd taken this restraining order, June 22nd, 1999, the kids were playing outside from what she told me.
SPEAKER_11: Jessica was in the house. And you know how kids are. They don't talk, they scream. So they're screaming at each other and they're playing and all of a sudden it's very quiet.
SPEAKER_11: She looks out the window, no kids. She knew immediately Simon had taken them.
SPEAKER_08: Because he has this history of being abusive. She was beyond anxious. She calls the police. Repeatedly. She calls the police. At 5.50 PM. At 7.30 PM. 8.30 PM. 10.10 PM. And she even later that night... She goes in person to the Castle Rock Police Station at 12.40 AM on June 23rd.
SPEAKER_11: And the thing was, Jessica worked at the police station as a custodian.
SPEAKER_08: And we're not talking about a police department the size of the Bronx
SPEAKER_11: or the New York City Police Department. We're talking about a relatively small environment. And people knew who she was. And people knew that Simon was violent.
SPEAKER_08: Basically the police told her... Oh, you know, he'll bring... wait, wait, wait. He'll bring the kids back.
SPEAKER_11: Don't worry, he'll bring the kids back.
SPEAKER_08: Like, the kids are with their dad. It's not a big deal. And she was beside herself.
SPEAKER_11: Who else was she going to call? What was she going to do?
SPEAKER_02: The police basically ignored the restraining order. I called and met with the Castle Rock Police nine times over a 10 hour period.
SPEAKER_08: This is testimony from Jessica herself a few years later. I begged them to find my daughters to bring them to safety and arrest Simon.
SPEAKER_02: My cries for help fell on deaf ears. The police went to dinner, looked for a lost dog, and had three officers tending to a routine traffic stop.
SPEAKER_08: And what happens is, finally at 3am that night... Simon drove up to the Castle Rock Police station.
SPEAKER_11: Got out of his truck. I think he had a Glock and he just started firing at the precinct. Oh, wow. Why would anybody do that? Why would anybody do that?
SPEAKER_11: You know the reaction you're going to get.
SPEAKER_08: Like he wanted a confrontation? He wanted to die.
SPEAKER_11: He knew if he fired on that precinct, they were going to come out and they were going to start firing at him.
SPEAKER_08: The police come outside, open fire on Simon. He dies at the scene. And once the shooting stops, the police approach Simon's truck and open the door.
SPEAKER_11: At that point, they saw three dead little girls. Oh, Christ.
SPEAKER_03: Yeah. Jesus.
SPEAKER_08: Basically the understanding is that Simon has killed them before arriving. Wow. And when Jessica arrived at the police station, she was taken into an interrogation room. And she was informed.
SPEAKER_11: She didn't get to see her children. They wouldn't let her see her children. She didn't get to see her children until they were laid out for the funeral.
SPEAKER_08: Eventually, after all this, Jessica decided to sue the Castle Rock Police Department as Joe Lozito would with the NYPD over a decade later. And the argument that her lawyers were making is that the police, by not enacting this restraining order, by not seeking to arrest this man and protect Jessica and her children, by failing to do those things, they violated Jessica's 14th Amendment right.
SPEAKER_03: And the 14th, again, is? The 14th Amendment is,
SPEAKER_08: the state shall not deprive any person of life, liberty, or property without due process of law.
SPEAKER_02: I turned to the United States courts to seek justice, to hold police accountable for illegally ignoring and demeaning me and my children in our time of need. So she files a petition in the federal district court.
SPEAKER_08: Which got kicked up to the 10th Circuit Court. And then it went up to the Supremes.
SPEAKER_00: Well, your argument now, number 04278, the town of Castle Rock versus Jessica Gonzalez.
SPEAKER_08: So in 2005, Jessica's case went before the Supreme Court. Mr. Chief Justice, I may have pleased the court.
SPEAKER_08: And very quickly in this case, the justices started asking these questions that were- Mr. Reichl, how would you describe the property?
SPEAKER_08: They're just very technical.
SPEAKER_16: What is the property your client has been deprived of? They're questions about property and if the restraining order is property.
SPEAKER_08: That would be a property, right? If she had a private contract.
SPEAKER_08: Or there was a lot of discussion about- The word shall enforce. What the word shall means. Sometimes shall does mean shall. Fine.
SPEAKER_16: But eventually-
SPEAKER_08: If you compare it to- Ruth Bader Ginsburg zeroes in on the big question that we've been asking about the police's job. Which is like, if we have restraining orders- Don't the police have an obligation to enforce them?
SPEAKER_17: To my knowledge, we've never held that the police have an actionable obligation to enforce them.
SPEAKER_07: What does the restraining order do then? I think it does two main things.
SPEAKER_04: First of all, it gives her rights against her husband, which are enforceable through contempt and are enforceable by asking the police to enforce them. And that is the interest that the restraining order gives her. But only to ask the police and the police are not obliged to respond.
SPEAKER_04: That is correct. She has the ability to ask the police to enforce the order, but the police have discretion under our reading of the statute. And then Justice John Paul Stevens just asks point blank.
SPEAKER_08: Do the police have any duty at all, in your view?
SPEAKER_16: The police-
SPEAKER_04: I don't believe that the police have any sort of actionable duty. I think that what the statute- And what you start to hear is this argument that's come up again and again at the court.
SPEAKER_08: That if you look at the 14th amendment or the US Constitution as a whole, there's nothing in there that says the police have to protect you from other people. In fact, that's not what the Constitution is for. The Constitution is a negative rights constitution,
SPEAKER_11: meaning our constitution is, keep your laws off my body. The Constitution is there only to protect you from the state.
SPEAKER_08: There's no affirmative duty on the part of the state to protect you.
SPEAKER_03: So it protects you from the police, theoretically. Right. But it doesn't demand that the police protect you from your abusive spouse. Right, exactly.
SPEAKER_08: Which is why in Jessica's case, when Justice Stevens asked- Do the police have any duty at all, in your view?
SPEAKER_08: The lawyer for the police was like- The police- No.
SPEAKER_04: They didn't have to do anything.
SPEAKER_11: They didn't have to do a damn thing. The case is submitted.
SPEAKER_11: And to be brutally frank, I knew we were going to lose. I knew it. But I didn't think we'd lose as badly as we did.
SPEAKER_08: In a 7-2 decision, the Supreme Court decided that the Castle Rock police had no duty to enforce the restraining order against Jessica's ex-husband. The two dissenting judges were John Paul Stevens and Ruth Bader Ginsburg. We reached out to the Castle Rock Police Department to interview them about Jessica Gonzalez's case, but they declined.
SPEAKER_02: In 2005, the United States Supreme Court threw out my case. The court also sent a message to police officers all over the country that they can ignore their responsibilities to enforce restraining orders and that they can get away with it.
SPEAKER_11: When she lost, it was as if her children had been murdered again. I went from being victimized by Simon to being victimized by Colorado and Castle Rock.
SPEAKER_11: It was as if she experienced it all over again.
SPEAKER_02: I felt so deceived. I'd grown up thinking that my government was bound by the laws and that it was just and fair. But all of a sudden, when I needed you the most, it turned you back on me and my family. Obviously, the years after my tragedy have been hell. It's really paralyzing. Sometimes the pain overwhelms me and I have to step away from my own life just to cope.
SPEAKER_11: They were three beautiful little girls who didn't deserve this. No child deserves this. No woman deserves this. Our system is broken and I have paid the price for its laws.
SPEAKER_02: I have to say, talking to other lawyers about this case.
SPEAKER_13: Again, this is BA Parker.
SPEAKER_03: They, first of all, they, they, all these lawyers talk about this case in really quiet,
SPEAKER_13: somber tones. Like it's a dark day for them.
SPEAKER_03: It's a really dark day, but it was also an I get it.
SPEAKER_03: Huh? What do you mean?
SPEAKER_13: They, they understand. Like they don't agree with the policy, but they understand why the Supreme Court made that decision because they say if the constitution says the police must protect you. Well, suddenly that's going to incentivize the police to be a lot more heavy handed. Then we'd have to arrest for jaywalking. We'd have to arrest for, you know, like an open container. Like we'd have to arrest for everything. And you would have essentially a police state. But do you, is what you mean that they see Jessica Gonzalez as like, like in a utilitarian
SPEAKER_03: sense, she's the cost you pay to preserve our safety from over-policing? Yes. Now that I think about that, like, are you convinced by that argument that there is that slippery slope that they, that they seem to be worried about?
SPEAKER_13: I mean, this idea that we either get discretion, meaning police make all their own subjective decisions and how to enforce the law, hello racial bias, or we get a world in which they have an obligation to enforce every law across the board, but you get a police state. I don't understand why that had those two, those have to be the two choices. Like that just seems bananas to me. Like, I feel like there is some medium and I don't understand why the law can't figure that out.
SPEAKER_03: Well, is there, is there some kind of middle path that says the police can have discretion, but they, but they, they do have to protect us in certain cases?
SPEAKER_08: Well, sort of. There's literally this special path.
SPEAKER_03: That's coming up right after the break.
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SPEAKER_19: server hygiene at the expense of policy issues, is history repeating itself? You can almost see an equation, again, I would say led by the times in Biden being old with
SPEAKER_01: Donald Trump being under dozens of felony indictments. Listen to On the Media from WNYC.
SPEAKER_19: Find On the Media wherever you get your podcasts.
SPEAKER_03: Jad, Radio Lab, we are back with B.A. Parker and Sara Khare, and we just heard two different stories from two different people where the police failed to protect either of them. And we learned that according to the Constitution, the police don't have to. They have no constitutional duty to either of them.
SPEAKER_08: Right. And you were wondering if they're like if if there is some sort of middle path to the police having to protect us. Yes. Yeah, right. So in that Supreme Court case, Scalia, in his opinion, kind of hints at that, like he references these cases in the lower courts that talk about this idea of like a special relationship. Hello. Hi, how are you? I'm good. How are you? I don't know. When I first encountered this term special relationship, I was like, what the heck? Like what? Like what does that mean? Yeah. So I called this guy John Goldberg, professor at Harvard Law School.
SPEAKER_14: And my main area of interest and expertise is tort law. And so real quick, tort law is the universe of law that governs what happens when one
SPEAKER_08: person hurts another person. And in tort law, we have a general rule which says people aren't obliged to help you.
SPEAKER_14: It's your problem. It's not theirs. The classic example is like if you're walking down the street and you see somebody in need
SPEAKER_14: of rescue, and you could easily and safely rescue them, but you don't. Legally, that's totally fine.
SPEAKER_08: You don't have to do anything for them. What? That's horrible.
SPEAKER_14: Right. Morally, you've probably done something horribly wrong, but legally, you're not subject to liability. See, okay, here's where I find myself thinking all about the limitations of the law.
SPEAKER_08: Yeah, totally. But the idea here is we may think it's virtuous and heroic even for someone to step in and
SPEAKER_14: rescue another person from some danger. But do we really think that if they don't do that, they should be paying thousands or millions of dollars to the victim because they chose not to?
SPEAKER_08: I don't know, man. I don't get it either. But there's an exception to that in the law. What the courts have said is if there's the right kind of special relationship between
SPEAKER_14: the person who's at risk and the person who could rescue them, there might be a legal duty to protect or rescue. If two people are in a special relationship, then one of them has to protect the other.
SPEAKER_08: So a classic example would be if you are a hotel and you invite people to come and stay
SPEAKER_14: in your hotel, as all hotels do, you need working locks on the door to make sure nobody breaks in in the middle of the night. You have to have a well-lit parking lot or maybe even a security guard. That's all premised on the idea that a hotel or a motel or an inn owes it to its guests by virtue of their relationship.
SPEAKER_08: John says you'll also see this special relationship status in transit industries. Airlines, taxi cabs, things like that. Or you'll see it in these relationships between like a guardian and another person. Between prison and prisoner, parents and minor children.
SPEAKER_14: So surely police officer citizen has got to be the right kind of special relationship, right? Yeah. But along come the courts and say, nope, actually not.
SPEAKER_08: However, the courts have said that there are times when the police do have a special relationship. Like if certain conditions are present, then maybe yes, the police do have an obligation to protect you.
SPEAKER_03: What are the boxes you need to check in order to have a quote special relationship with the police so that they can protect you? Well, most states have a rule that's similar to the one that you're seeing in New York.
SPEAKER_07: This is Alexandra Lahav, professor of law at the University of Connecticut. And she told me that in a lot of different places around the US, it comes down to the
SPEAKER_08: very same criteria that Joe Lozito was being held to. All right, so the rule in New York. It's sort of like this four-point test. The first of which is that there has to be direct contact between the person and the police.
SPEAKER_14: So someone goes to the police and says, you gotta help me. The second thing is the police then have to respond to you and say, okay, we're on it.
SPEAKER_14: So some kind of promise to this individual, I will protect you.
SPEAKER_07: And then number three, you need knowledge on the part of the officers that not acting could lead to harm.
SPEAKER_08: The police also have to be aware that if they don't do anything, that the person will suffer. That seems like getting in the head of the police.
SPEAKER_03: Yeah.
SPEAKER_08: How could you know that kind of thing?
SPEAKER_07: That's what's now you're seeing why this test is so hard to meet. And then you need an addition.
SPEAKER_08: The fourth thing is kind of the most mind-boggling, which is the person asking for protection. They believe justifiably that the police will protect them.
SPEAKER_07: They have to prove that they relied on the police's protection.
SPEAKER_08: It acted differently, exactly.
SPEAKER_14: They changed their behavior because they were like, oh, phew, now I know I'm safe so I can go out, you know, but I wouldn't have gone out otherwise.
SPEAKER_08: The way the courts look at these four criteria is like all four of them have to be checked off. Now we've got the right kind of special relationship.
SPEAKER_08: And in Joe Lozito's case, he just didn't check those boxes. Well, very few people do.
SPEAKER_03: Wow. God, what a minefield.
SPEAKER_08: So if you think about it, in order for Joe Lozito to have checked those boxes, he would have had to one, walk up to the police and say, police, I need your help. I'm about to get stabbed. And then two, the police would have needed to say, yes, we will help you because three, we know that to not help you would definitely result in harm to your face and your back and your hands. And then four, Joe would have then had to say, great, I will now relax myself and act differently in the knowledge that you will help me.
SPEAKER_03: That is insane. That's insane. And I guess it kind of brings me back to Parker's original question, which is if protecting people on the streets is so damn hard to make legally binding because it's not their
SPEAKER_03: job, then what is their job?
SPEAKER_18: Ah, now you come to the fundamental problem. So this is Professor Barry Friedman.
SPEAKER_08: Law professor at New York University School of Law, and I'm the faculty director of the
SPEAKER_18: policing project there.
SPEAKER_08: Is there anywhere in the country that has like really clear laws for what the local or state police is supposed to be doing or what they're not supposed to be doing?
SPEAKER_18: No.
SPEAKER_08: Really? It is remarkable.
SPEAKER_18: I was interested in policing for years and years, and this is a light bulb that went off in my head finally. And then I started to see it everywhere that I looked. What you get is, you know, you might get a drone statute in one state and you'll get a statute about choke holds in another state and you'll get a statute about, you know, license plate readers in another state. But it's all totally like pinprick. And what you will never, ever, ever find is a comprehensive code of police conduct. Doesn't exist.
SPEAKER_08: That's so strange. And like not even in like, I don't know, state constitutions or something? Maybe that's a far cry.
SPEAKER_18: You're listening to is making me so happy because, you know, you're listening in the veil, it's coming off of your eyes and I, and it happened to me. But, but no, you know, this is a question that we oddly don't ask much about the police, but ask in most other areas of government. So if you think about it, you know, there's a, whether it's the FDA or your local zoning board, we don't usually think of government getting to do things without some sort of formal permission statute or a constitutional authorization. Wait.
SPEAKER_13: So we've just like collectively as a society being like, Hey, you're a cop. And they're like, Oh, okay. What does that mean? I don't know. Just do what you gotta do. And they're like, Oh, all right. And then that's it.
SPEAKER_03: Now this is Jaden, the president, to be fair, we called up a bunch of active duty officers. Hello? Hello? Hello? Hello? From all over the country, from South Carolina recruiter for the city of Charleston police
SPEAKER_05: department sworn police officer in the state of Connecticut from Illinois, Florida police officer with the Lincoln police department in Nebraska. And when we asked them like, what do they think their job is?
SPEAKER_03: They said, well, to protect people.
SPEAKER_05: Oh, certainly that's part of it intervening and protecting. Again and again, they said, Yeah, helping people is kind of cliches that sound.
SPEAKER_03: Our job is to protect and serve.
SPEAKER_10: We want to protect people stuff. We want to protect people against burglaries trying to protect women from from abusers. We have a natural duty to protect what most police officers want to be doing is standing between the general public and violence. You want to do your best to help other people and keep them out of harm's way.
SPEAKER_10: That's why we're doing this.
SPEAKER_03: And in talking to them about where that idea actually comes from. Sure.
SPEAKER_05: So when when you talk about duties, like where is it written down? That kind of gets into the code of ethics for for policing or mottos.
SPEAKER_03: It's ethics guidelines. It is mottos like protect and serve its city charters that created police forces in those cities, charters that say things like protect the peace, maintain order, enforce the law. You're correct. And this is something that came up in Sarikari's conversation with Barry Friedman. That the actual mandates for what police are supposed to be doing are kind of internal to the police departments themselves. And the problem is there's a lack of democratic control.
SPEAKER_18: We don't use the ordinary ways that we do everything else in government with regard to the police. We don't pass statutes. We don't pass regulations. We don't then, because we have those statutes, do sufficient auditing to make sure that they're being followed. And the reason it's hard to hold people responsible today is because we're missing clear rules on the front to tell them what we expect them to do.
SPEAKER_08: And I guess in that void, it sort of it seems like what happens is it leaves the courts to kind of debate over what those rules are and how to draw lines, I guess. Yes, and they're terrible at it.
SPEAKER_18: I mean, if you again, if you think about it, the Constitution is kind of a weird way to run anything in government. I mean, it's it's a framework for government. But all it is is a framework. And then the framework gets filled in with statutes. We have environmental protection statutes and we have workplace safety statutes, but we don't have policing statutes. And so basically, the courts are left to try to hold people accountable or not under the vaguest of terms. That's why it's hard to hold people accountable and why people get frustrated. And the odd thing is they keep doubling down on that by creating more mechanisms on the back end to try to hold people responsible and don't notice that the whole problem is the vacuum, as you described it on the front end. I mean, you've puzzled through it, Sarah, in a very logical way. And everywhere you turn looking for logic, you find a twist. And that's that's problematic. And what bothers me about the moment we're in, I mean, there are many bothers of some things about the moment we're in, but people are walking around very much with a bad apples view of the problem when the truth of the matter is that the orchard just isn't regulated. Well, let me ask you a bigger question.
SPEAKER_03: I'm gonna ask this to Parker. If it's not legally the police's job to protect us, then whose job is it?
SPEAKER_13: I don't know. Oh, this sounds so sad. It is. But there's this one part of the story I haven't told you yet that gives me a little hope. Like if you think back to Joe Lozito, the guy got stabbed in the subway. It wasn't just Joe, the cops and the stab on the train that day. This was rush hour. There were a bunch of other people on the train. And when the stabber lunged at Joe, they got out of the way. But like, absolutely not. I want no parts of this. I'm going to the next car. Took a step back, just like the cops did. But there was one guy on the train who didn't step back. He took a step forward.
SPEAKER_17: My name is Alfred Douglas, and I was originally born in Jamaica. I came here 26 years old, and I've been living in New York ever since.
SPEAKER_13: What was it like to witness something like that? To see someone get attacked?
SPEAKER_17: Miss, I could tell you that, you know, I'm 58 years old. I've never seen somebody so viciously slash before.
SPEAKER_13: So, Alfred was on the three train with Joe. I was just standing there.
SPEAKER_17: And as the train started moving...
SPEAKER_13: You know, this guy came from the back of the train.
SPEAKER_17: And once he walked in, my eyes was fixed on him because, you know, he didn't look right. And, you know, he went and sit beside this woman. The woman get up, and then he move and went, you know, across from Joe. And all of a sudden... He just lunged forward, jump onto Joe, and then start attacking Joe. Joe is all covered in blood. The other passenger that was up the front, you know, they start running to the back of the car. While the tussle was going on, the police that was in the motor man's cabin, he opened the door and look out, and then they went back in and, you know... Hid. Just hid in there as Joe was getting stabbed.
SPEAKER_13: After Joe Lozillo took him down, and they were on the ground,
SPEAKER_17: the police came out the motor man's car and grabbed him. Maxim Gilman now fighting the cop. By that time, Joe couldn't see, you know. His head was covered in blood, you understand me? So he was just crying for his wife, his kids, and whatever. So I said to myself, you know, we gotta help him. So I just... I kneel in his stomach, you know, and, you know, try to get control of his hand. Because the officer, like, have his gun in one hand. And, you know, trying to control him with one hand. So, you know, I see that he needed help. So I went there and I kneeled down on him. So after he cuff him up now, you know, the train, like, come to a stop. And when I look at Joe, you know, I've never seen a slash like that before. His neck, like, the back of his neck, it was just jumping, like pumping, you know. Like, you know, blood just pumping out of him. It seemed like eternity because, you know, Joe, he thought he was gonna bleed out. You know, I thought he was gonna bleed out too. So I asked, you know, if anybody have, like, a tissue or a napkin. But before I got a tissue or napkin, I was holding... You know, I was applying pressure to his neck. And then somebody came with a piece of napkin. And, you know, I used the napkin to apply the pressure. You know, that's just me. I was raised by my grandmother. I was taught to help, you know, when you see a need for help. You know, I just did what I thought that was right at the time.
SPEAKER_13: Had you heard that Joe sued the city?
SPEAKER_17: No, I haven't heard anything about that. And how did that go?
SPEAKER_13: The judge threw the case out, citing... Yeah, citing that the police has no special duty to protect him.
SPEAKER_17: Yeah? And so the transit cop that, you know, walked the beat down there didn't have no duty to protect the consumers? Essentially, yeah. Damn. That's news to me. Why do they have the police in New York then if they ain't got no duty to protect us?
SPEAKER_13: That's what I'm trying to figure out.
SPEAKER_17: We're paying our taxes. You know, that's, you know, that's what I thought they were employed for. You know, this is new to me. I didn't know the police doesn't have a duty to protect the citizens of a country or a state. I don't, I mean, I gotta process this, you know? And I didn't know something like this exists. If this is the case, you know, they should free up the gun laws in New York. Everybody could have their protection. I was living all my life all this time thinking, you know, the police are there to serve and to protect, you understand me? If they see something unlawful happening, it's their duty to, you know, be the judge
SPEAKER_17: and the jury on the spot. I can't see how they could say that it wasn't their job to protect the citizens. I didn't know. It's a strange world, man.
SPEAKER_17: I gotta process this and I gotta let my kids know. And whoever will listen to me, I gotta let them know, you know, about this. Because this is news to me.
SPEAKER_13: Like it takes two, like a badly wounded guy and a guy with some napkins to defeat a serial killer. Yeah. And I say this fully aware that if I were in a situation like that, I don't know if I would jump in.
SPEAKER_03: Oh yeah, hell no. Like the kindest thing I've done on the subway was like in February, I saw a girl crying
SPEAKER_13: and I gave her a tissue and now that the COVID's happened, I know that I won't do that anymore.
SPEAKER_03: You just give her an empathetic frown face across the way. I'm like, I'm sorry, ma'am.
SPEAKER_13: I'm sorry. I'm going to leave this Kleenex right over here and you can come and get it.
SPEAKER_06: Yep.
SPEAKER_03: Special thanks to April Hayes and Katya Maguire for their documentary Home Truth about Jessica Lanahan. To Cracked.com for sending us down this rabbit hole. Caroline Bedinger Lopez, Jeff Grimwood, Christy Lopez, Anthony Huron, Mike Wells, Keith Taylor, and to the officers that we spoke to for this piece. Chase Weatherington, Terry Cherry, Luke Vankiewicz, Jeremiah Johnson, and Aaron Landers. I'm Chad Abumrad. Thanks for listening.
SPEAKER_20: Produced. Our staff includes Simon Adler, Jeremy Blum, Becca Russell, Rachel Cusick, David Gable, Tracy Hunt, Matt Kielty, Tobin Lowe, Annie McEwen, Sara Akari, Ariane Wack, Beth Walters, and Molly Webster. With help from Shima Oliai, Sarah Sandbeck, and Johnny Mowins. Our fact checker is Michelle Harrit.
