Proposed Florida law resurrects the debate around the legal duty to help someone in distress
Some critics of Kavanagh’s bill said passing a law as a statement was silly, but the idea is not uncommon. Like laws that limit where someone may smoke or increase penalties for drunken driving, the argument goes, a law can communicate society’s disapproval of failure to rescue.
“It has aspirational value,” says Ken Levy, a law professor at Louisiana State University whose background includes a PhD in philosophy. “The government is … putting its stamp on what is really a moral obligation.”
Levy wrote a paper in 2010 for the Georgia Law Review that argued for mild punishment of bad Samaritans such as the Florida teens. He would prefer a harsher penalty because he thinks allowing someone to die is not very far from killing the person. But he also thinks low penalties are the only practical way to get a bad Samaritan law passed because American culture has a strong libertarian streak that might reject any such measure.
Levy is less supportive of the part of Mayfield’s bill that prohibits putting a video on social media. Although he thinks publishing the Florida video was “callous and disgusting,” the provision could violate the First Amendment and discourage people from providing evidence of crimes.
“It’s not the capturing it on video; it’s the passively standing by and not helping,” he says. “If they’re capturing a crime being committed, we want that.”
Hyman of Georgetown Law agrees that the idea probably has constitutional problems and says he’s not sure the provision does anything to encourage attempts to help people in distress—presumably the goal of the bill. “My focus has always been on the frequency of rescue vs. nonrescue, and it’s hard for me to see why posting the video has anything much to do with that,” he says.
Hyman is opposed to bad Samaritan laws—on practical grounds more than philosophical ones. In a 2006 Texas Law Review article, he published his research in the area, comparing documented rescue attempts to nonrescues—situations where someone failed to rescue a stranger in distress, in circumstances in which it would not have been risky to do so.
He found zero nonrescues or prosecutions in the three states with a duty to rescue. In two of those states, Hyman found that the laws didn’t affect rates of accidental death or nonrescue.
But the real story was that Americans are far more likely to die trying to be heroes than for lack of heroes. Using news reports and data from organizations that give awards to rescuers, he concluded there were 740 rescues for every nonrescue.
Indeed, central Florida providesa case in point. According to an Orlando Sentinel story, 10 days after Dunn’s death, 19-year-old Nic Berry of New Smyrna Beach jumped into a canal to rescue a stranger he’d heard screaming.
Although Berry and the unnamed man survived, Hyman reported that would-be rescuers are frequently not so lucky. Every year, he concluded, at least 78 Americans die trying to rescue another person. But only about one American dies of nonrescue. Put another way, every year would-be rescuers die at least 65 times more often than victims of nonrescue.
For that reason, Hyman thinks a law requiring rescue attempts could lead to more deaths. If legislatures are going to pass laws, he’d prefer that they provide for rescuers. “The problem is not, based on the data that I collected, that Americans are unwilling to rescue one another in nonrisky circumstances,” he says. “The problem is that Americans are too willing to rescue one another in very risky circumstances.”
CorrectionPrint and early online versions of “Bad Samaritan,” June, should have stated that Georgetown University law professor David Hyman conducted a study comparing documented rescue attempts to nonrescues. Due to an editing error, Hyman’s work was mischaracterized.
This article was published in the June 2018 issue of the ABA Journal with the title "Bad Samaritan: Proposed Florida law resurrects the debate around the legal duty to help someone in distress."