My lawyer brother-in-law Mike Lewis, a significant player in initiation of the state tobacco lawsuits, came up with an interesting legal argument of principle that unites issues surrounding gun control, whether police have any “special duty to protect”, and what countries the US might or might not have a similar duty to protect.
First he notes that courts have severely limited police duty to protect citizens from violence. He calls the exceptions “unicorns” because they are rarely observed. From § 46. Special duty to provide protection, 53A Am. Jur. 2d Mobs and Riots § 46 he we learn that “failure to provide adequate police services to the general public is not actionable unless plaintiffs plead and prove a special duty . . .such a special duty exists if“ ALL of the following:
- the municipality is uniquely aware of the particular danger or risk
- the complaint alleges acts or omissions by the municipality
- the acts or omissions are either affirmative or willful
- injury occurs while he or she is under direct and immediate control of employees or agents
“A municipality generally cannot be held liable . . . for failing to provide adequate police protection . . . “
“A special relationship exists between a municipality and an injured party where there is . . .”
- an assumption by the municipality, through promises or actions, of an affirmative duty
- knowledge on the part of the municipality’s agents that inaction could lead to harm,
- some form of direct contact between the municipality’s agents and the injured party
- the injured party’s justifiable reliance on the municipality’s affirmative undertaking
This particular section is concerned with riots. Limitations exist in other cases which are similar. One might consider an active shooter situation as similar to a riot. Likewise an adversary violating the accepted rules of war.
The United States Constitution, Amendment 2, assumes that citizens are allowed to defend themselves in such cases and even to organize to do so: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.“
However, in certain cases, such as gun free school zones, people are NOT allowed to effectively defend themselves against threats that have become relatively common. It is NOT the purpose of this article to argue about the 2nd Amendment. Instead we argue that in such cases a special duty to protect those who have been disarmed is incurred.
Citizens or people? Likely there will be some disagreement about to whom the 2nd Amendment applies. We accept that it applies within the borders of the US. One could argue whether aliens might be exempt from this provision. It is not necessary to settle this argument. What I will argue is that IF a person or group has the ability to defend themselves, and the US or any subdivision thereof deprives or pressures them to give up that ability, then the moral logic of an incurred obligation to provide some level of protection applies. Thus in establishing a gun free school zone, a municipality incurs a special duty to protect. Police officers often are assigned to schools already. What we are saying is that they are obligated to act. Public opinion following instances of inaction, in both Texas and Florida, is consistent with our argument.
Countries? International treaties and agreements can be surprisingly vague. For example, the much-touted NATO Article 5 proclaims an attack on one is an attack on all, and requires a response, but the magnitude of the response is completely unspecified. It could be to send one gun or observe one minor sanction. There is also the recently arisen issues of the time between application to NATO and admission. Ukraine was attacked during this time and no defense was taken. Yet the UK has promised to defend Sweden and France promised to defend Finland, and the US used sufficiently strong words that it can be assumed it would defend either. Now we turn our attention to Ukraine, and then more generally to nuclear disarmament.
Ukraine’s Nuclear Arsenal in the early 1990’s consisted of 76 intercontinental ballistic missiles carrying 1,240 nuclear warheads, 44 strategic bombers with more than 700 nuclear-tipped cruise missiles and upward of 2,000 tactical nuclear weapons. It was the THIRD LARGEST in the world after the US and Russia. Under pressure from both the West and from Russia, Ukraine gave these up in return for security and border guarantees.
Likely none of the men signing would have ever considered violating Ukraine’s borders. But 30 years later, the document had no teeth. In 2014 when Russia seized Crimea the US and UK fulfilled “the letter” of the document by notifying the UN Security Council, over which Russia holds veto power.
By 1992 Ukraine declared it wished to join NATO. President George Bush lobbied for both Ukraine and Georgia to join. In 2008 NATO stated that Ukraine would definitely be allowed to join, but it must first complete a Membership Action Plan to make its military compatible and come up to NATO standards. This was in the context of a Russia-Georgia war ongoing. Georgia did not receive NATO’s assurance. Alarmed, Ukraine President Yushchenko “issued a decree requiring advance notice of the movements of the Russian Black Sea Fleet into and out of the Ukrainian port of Sevastopol. He also came out strongly in support of Georgia’s President Mikheil Saakashvili, condemning Russia’s invasion in Georgia during the August 2008 Russo-Georgian War. Prime Minister Tymoshenko and her Yulia Tymoshenko Bloc put forward a less critical position towards Russia.” [source]
There followed a constitutional crisis in Ukraine.
My personal visits to Ukraine began in 2009, during the Financial Crisis. I was surprised this affected Ukraine, but they complained severely. The crisis reduced European trade with the US, which reduced the EU’s demand for Ukrainian goods and labor. One of the first stories I heard from my Ukrainian guide was that in 1933 Stalin had seized all the crops and people had starved. This was the 2nd largest genocide in history, called the Holodomor. Ukrainians remember it like Jews remember the Holocaust. However, there were still many people in Ukraine with attachments to Russia, and speaking the Russian language. I had studied Russian, but could find no guidebooks to Ukrainian. It’s not quite possible to understand on the basis of Russian even though many words are the same or similar. Ukrainian is much more lyrical and is beautiful when sung.
On August 11, 2009 Russian President Medvedev in an open letter directed at Viktor Yushchenko, raised a number of issues of concern related to the perceived “anti-Russian position of the current Ukrainian authorities”. The Russian President’s comments were considered by analysts and others including the President of Ukraine as Russia’s interference in Ukraine’s domestic affairs. [source] Doubtless many Ukrainians were intimidated, and afraid of offending their powerful neighbor. I remember standing in Kharkiv, and wondering how these people could be comfortable with Russia being just a few miles away.
In a 2010 runoff Yushchenko had been eliminated, in part as people feared he might provoke Russia, and there was a runoff between the neutral Tymoshenko, accused of corruption, and pro-Russia Yanukovych. My visits ended in 2011, at which time I took a bus trip without a guide from Kharkiv to Luhansk, through what is now Separatist territory. I interviewed people extensively about their views on everything, as I was looking for a wife compatible with Western views. There was no hostility toward the US anywhere present. There was resentment of Russia even among ethnic Russians living in the East, but it was not strong enough to account for any discrimination, and none was obvious. My guides were Ukrainian, speaking both languages, and most of the prospects I met were actually Russian, and spoke Russian.
By late 2013 Ukrainians had enough of Yanukovych’s pro-Russia policy. Ukrainians clearly were dependent on the EU economically, and wanted to join the EU. Yanukovych chose instead a loan bailout from Russia. In 2014 they kicked him out of office and Russia promptly seized Crimea and parts of the Donbas region, completely disregarding international documents they had signed. Since 2008 Russia had violated the Intermediate range Nuclear Forces (INF) treaty, and by 2018 President Trump withdrew on account of Russian violations. In 2021 Russia withdrew from the Open Skies Treaty. China disregarded its promises to allow Hong Kong Handover Treaty in 2021. International agreements are now apparently worthless.
In December of 2021 Russia issued a set of demands to the West not necessarily Ukraine:
- a ban on Ukraine entering Nato
- a limit to the deployment of troops and weapons to Nato’s eastern flank, in effect returning Nato forces to where they were stationed in 1997
Moscow said ignoring its interests would lead to a “military response”.
US President Biden flatly refused ALL Russia’s request, thus assuring an invasion. It was well known in the West that Russia had been immunizing itself against sanctions since their imposition over Crimea in 2014. There was no credible reason to believe sanctions would “deter” Russia from invading.
In the context of our discussion of a duty to protect from harm it might be argued there was no reasonable expectation of great harm. Ukraine’s government would be replaced in an almost bloodless maneuver, similar to Crimea’s seizure. The Russian forces amassed looked overwhelming. The US had just withdrawn from Afghanistan, which quickly collapsed. In South Vietnam, the government proved unable to conduct credible resistance after US withdrawal. There was no stomach in the US for a similar situation in Ukraine. Let the Russians have them. Not worth risking large scale or even nuclear war. Certainly not troops.
As an aside, Ukraine was not asking for troops and President Clinton twice intervened to stop genocides in the former Yugoslavia with air wars and essentially no loss of US personnel. “Troop” talk was political rhetoric, intended by the President, an anti-war politician first elected in the midst of opposition to the war in Vietnam in 1970, to bolster support for his timid position.
Republicans meanwhile, traditionally the hawks in American politics, were busy interpreting “Make America Great Again” as “Just Leave Me Alone” rather than actually taking a leadership position in the world and influencing world events so that America could actually prosper. Prosperity in the US has always depended on some connection to the world, whether for trade or labor. An Arkansas farmer interviewed by Tucker Carlson said he would gladly take up arms when the Russians arrived at his farm in Arkansas. It is now quite apparent the Russians would destroy completely his farm with artillery or MLRS (rockets) from 50 miles away, well out of range of whatever hunting rifle he might have. Even an AR-15 would be useless. In actual fact, it is too much trouble for anyone to invade the US. Russia would just seize control of a quarter of the world’s grain exports and, with its already plentiful energy exports, manipulate and extort markets to cause economic harm in the US and instability in neutral regions around the world until the West collapsed in disarray.
With puppet governments in Ukraine, Hungary, Germany, France (either Macron or Le Pen, both qualify), Venezuela, Cuba, Brazil, and possibly even the United States, Putin would quickly re-acquire the Baltics and Poland and Moldova, and die, eulogized as Putin the Great. Rumors are he even plans to have his second daughter Katerina Tikhonova installed as head of the United Russia Party and puppet master of his replacement regime. Don’t think about the party head as in US political parties. Think party head as in the USSR, ultimate power.
Once the invasion had been underway for a few weeks, these expectations were completely refuted:
- Ukraine was willing and able to fight competently.
- Russia was pulverizing infrastructure, targeting civilians, committing war crimes, erasing Ukrainian culture – the expectation of harm went from minimal to something of the scale of the great genocides of the mid-20th century.
The West’s reaction was, OK, Russia is fighting incompetently, maybe Ukraine can win with unobjectionable weapons that cannot reach Russia, like anti-tank missiles.
Russia is now fighting competently. They no longer mass exposed columns of vehicles. They hide in the trees and shell cities from afar into rubble. They do not engage in foolish urban warfare. They are taking some of their 10,000 stored tanks out of storage and putting them into service. Sure, they have morale problems and are losing officers. They are also learning, and have complete tolerance of the casualties. Their public is not terribly suffering under sanctions. At worst, the oligarchs might be unhappy, but Putin has killed two of them, and their families, so they are not going to make any trouble.
There is now an expectation of harm, of great harm, as a result of the West’s pressure for Ukraine to disarm in 1994, and pressure to negotiate with and accommodate Russia under Obama and Trump. Negotiate with a power that disregards international agreements? What is actually the purpose of that? There is none. It wouldn’t matter what the agreement was. Some European governments (France) can’t seem to absorb this empirical fact.
We now have all the conditions of a special relationship met!
- The promise of security in the Budapest Memorandum AND the promise of NATO membership in 2008, reaffirmed in 2021. We also have the implicit definition of what those promises mean by the assurances of defense of Finland and Sweden in similar situations.
- Knowledge that inaction would lead to harm. We might have assumed otherwise on February 24th, but it is clear now.
- Direct contact between our agents and the injured party. We had been in Ukraine training their military and conducting joint exercises with NATO for some time, such as the peace-support operations in Bosnia and Herzegovina, NATO’s two missions in Afghanistan, namely the International Security Assistance Force (ISAF) and the Resolute Support Mission, the NATO Training Mission in Iraq and the maritime operations Active Endeavour and Ocean Shield. [source]
- Ukraine justifiably relies on our help by our own admission that they would fall to Russia quickly if unaided, by their own petition to join NATO, by our pressure in 1994 for them to give up nuclear weapons even though bordered by a large and aggressive nuclear power.
But do we have a special duty? That refers to the earlier four points:
- The US is now aware of the danger and risk, was after Bucha, and thus incurs responsibility going forward from that point.
- Current weapon supplies are deemed inadequate by competent military advice with in the US and Ukraine and every talking head ex-colonel on YouTube, so there are acts of omission.
- The decision to continue to supply inadequate weapons is clearly willful, as Congress has appropriated funds, leaving the selection up to Biden, and he just announced he would NOT provide long range MLRS.
- Injury is continuing to occur on a massive scale, and as to “direct and immediate control of employees or agents” this applies both to the school children (it was a municipal school) and to Ukraine whose military was under training and supervision of the US and NATO. It was to the West Russia addressed their demands. It was the US and NATO who refused. Had the US and NATO said nothing, or acquiesced, Ukraine would have had nothing to say about it, Russia’s demands would have been met. So, the US and NATO had total control over whether Russia invaded.
That’s it then. We have a special duty to protect them. All conditions are met. In a few days we could convince Russia to withdraw by flying US cruise missiles and F-35s, taking out launchers and artillery beyond Ukraine’s range of fire, opening the Black Sea ports and avoiding a world food crisis. Do not be fooled by administration announcements like “more advanced rocket systems.” Biden is careful not to provide 185-mile range MLRS that Ukraine not only wants but needs. Russia launches missiles from bases in Russia and Belarus, from aircraft based in Russia, from ships far out in the Black Sea. Unless Ukraine can reach these, Russia would merely continue launching missiles even if all its troops were out of Ukraine. Why should they stop? There is no reason. Sanctions won’t be lifted anyway, most likely, unless they return Ukrainian deportees and pay for reconstruction of Ukraine. They will not willingly do this. They will be mad and will not have any consequence. Ukraine has to be able to stop Russian aggression, and the long range MLRS is the minimum needed.
There is only one issue left to address. Nuclear blackmail.
Nuclear deterrence and disarmament is complicated. The US position is complicated.
- The US subscribes to the NPT – nuclear non-proliferation treaty, and encourages nations to give up nuclear weapons.
- Countries which have given up nuclear weapons:
- South Africa (whose government was reformed under international pressure)
- Belarus (they are now being redeployed there by Russia)
- Kazakhstan (now a Russian client state with heavy Russian interference)
- Ukraine (now being destroyed city by city, its culture erased by Russia, citizens executed, deported, tortured – all done openly, you can watch every evening on the news)
- Or nuclear weapon development programs:
- Taiwan (now under daily threat from China, constantly responding to air space intrusion, and with no international recognition as a country)
- Argentina (a military coup was secretly advised by the CIA)
- Libya (the government which gave up its program was overthrown with overt assistance from US President Barak Obama, who provided air support)
- The US has NOT signed the TPNW – treaty on the prohibition of nuclear weapons.
The US was the first to develop nuclear weapons and the only nation so far to use them in war. Various excuses are given for the US not preventing other nations from obtaining them, such as no more weapons available at that moment, none of which I really buy. Weapons were soon manufactured. I think it was just a lack of clear thinking about how they would dramatically change the status of nations, freezing conflicts, eventually enabling nuclear blackmail as they spread, and most probably eventually resulting in their use. There were proposals to turn nuclear weapons over to an international organization, and the US resisted, preferring the status quo and non-proliferation approach.
During the Cold War the US was prepared to actually fight a nuclear war. Shelters were built or designated, both public and private, civil defense bulletins and drills trained the public how to survive. And yes, most people will survive. The thinking that no one would survive is really part of a rationale for just not thinking about or preparing for nuclear war. However, this makes it easier for enemies to blackmail the US with the threat. This strategy, which I’m over simplifying, worked and there was no nuclear war. We might describe this as the Post-WW2 World Order, characterized by bipolar competition and a developing Third World.
Since the early 1970s when Nixon opened trade with China and began space program cooperation with the Soviet Union, using the world trade and assistance organizations established after WW2 and economic theories that trade was not zero-sum and would lead to general prosperity, it has been assumed that sufficient economic ties would prevent nuclear war. Or in fact any major-nation war. Nations would not be willing to destroy their own economies by destroying adversaries upon which their economies depended. This might be described as the New World Order, a term that seems to have been coined by President G. H. W. Bush. It is characterized by cooperation and collaboration, in commerce, in space, and even in war as evidenced by the Gulf Coalition that reversed the invasion of Kuwait. And by the way, we had no special relation with Kuwait more so than we have with Ukraine, and Iraq had been a very close ally of the Soviets since 1958.
The New World Order is now pulverized, in the words of Germany’s ambassador to the US, at least as far as relations with Russia are concerned. It does not fear destruction of its economy, and has no regard for international agreements. It sends agents to poison enemies anywhere in the world, including in the UK and US. It avoids the urban warfare the US so fears by simply demolishing urban areas before taking them. It is willing to deport and replace local populations and then conduct a pseudo-referendum where they “decide their destiny”, usually to joining the Russian sphere of influence, or join Russia directly. Russia describes this process as “liberation” and claims the right anywhere anyone is speaking Russian, anywhere that threatens the security of Russia, and upon any condition they shall make up in the future.
Russia sanctions are already reaching a breaking point for the West as American and French and German politics turn toward the negative effects of sanctions. Hungary, Brazil, India, and China buy Russian oil, gas or fertilizer with impunity. Russia’s blackmail extends to creating a world food crisis unless they can sell their grain – and Ukraine’s from which they are stealing – and they demand sanctions are removed before they will supply the grain. China, on whom many more countries depend economically, can expect that sanctions against it will not even be as effective as those against Russia. Should the US unilaterally sanction China, likely it would be the US economy that was crippled. A right-wing government might take power in the US which was outright friendly to autocratic countries.
Without either a credible threat the US might will up to a nuclear power, or that destruction of economic connections might deter use of nuclear weapons, Russia has made effective use of nuclear blackmail. Expect such tactics to expand if nothing is done. My Russian wife informs me there are thousands of fallout shelters in Russia. They are still prepared. They even still hold civil defense drills.
The US policy is not instant escalation. You can find an outline of US policy here https://www.defense.gov/News/News-Stories/Article/Article/2334600/dod-official-outlines-us-nuclear-deterrence-strategy/
NATO would, in my opinion, be paralyzed and unable to act in the face of limited use of nuclear weapons because they all have to agree, certainly if they were only used on the battlefield in Ukraine, but possibly even if a tactical low-yield device were used against a NATO base involved in supplying Ukrainian weapons and near the Ukraine border. Hungary agree? Doubtful. It would be up to the US to act. The US has low yield weapons, not as low as Russian weapons, but low enough. However, the US has developed conventional weapons like the F-35s to be able to do comparable damage, and might only retaliate with a severe conventional strike. Russia is a large country, nothing critical is located near Ukraine except for one controversial palace at Sochi, and it might tolerate a tit-for-tat with the US for some time, taking the advantage of the opportunity to take out NATO bases while only losing one’s near Ukraine. Those it will immediately replace with forward bases much closer to NATO, inside the new Russian territory that once was Ukraine and by then is adjacent to Poland, Ukraine no longer existing.
Russians are not insane, and on two occasions during the Cold War that we know of, refused to launch when radar or some other sensor gave false indications of an attack. They have a system like ours where more than one person has to give authorization in the Kremlin, as well as on submarines and on missile bases. They might care nothing for others, but I have a Russian wife. I’ve been there and gotten to know them. Their country is beautiful and they don’t want it destroyed. At present none of it is destroyed, and they won’t risk it. On the other hand, without the threat of some of it being destroyed, why would they quit lobbing missiles into Ukraine? Nothing bad is happening, it annoys Ukraine which makes them happy, and its good target practice. Obviously, their military needs the practice.
If we don’t kick Russia out of Ukraine, every country will know nuclear blackmail works, and the post-New World Order will be the Age of Nuclear Autocracy. Then the Age of Nothing when they finally turn on each other. If we intervene, and if not I have no doubt Ukraine will lose with the short-range weapons we are providing, and kick Russia completely out of Ukraine, then every country will know nuclear blackmail does not work, and they won’t be so tempted to try it.
The bottom line is that if you disarm someone – whether it is school teachers or a friendly country – and you have reason to expect they cannot protect themselves once disarmed, and you maintain enough control of them to keep them disarmed, then you incur a “special duty to protect.” To disregard this principle will be to encourage a world full of active shooters and even enemy militaries full of active shooters that destroy countries to the level of rubble and exterminate citizens and cultures.
If after thinking about it, this does not suit you, there are things you can do:
- You can write to your political leaders. This is very easy. Just search “write the white house” https://www.whitehouse.gov/contact/. For a Senator or Representative search for something like “write Ted Cruze” or if you don’t know a name “write my representative”. You can also call them, or send a paper letter.
- You can up-vote this blog and share with your friends, post on Facebook or Twitter, etc.
- You can vote for and contribute to candidates that back these ideas over just fanning polarization inside the US.
- If you feel you have been injured wrongly because of yielding your ability to protect yourself, you can consult a lawyer for advice. Print this article and see if he thinks it will give you any leverage. If you think your case is common to many, contact me and I will forward your message to Mike and he’ll take a look.
- If you have dual US-Ukrainian citizenship, and have been injured by the flawed US action (or inaction), you may be able to sue in US courts. Again, contact me and Mike will look at it.