Welch v. City of Biddeford Police Dep't ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1474
JOCELYNE WELCH, as personal representative of the Estate of
Alivia Welch,
Plaintiff, Appellant,
SUSAN JOHNSON, individually and on behalf of her minor son B.L.
and on behalf of Derrick Thompson, deceased,
Plaintiff,
v.
CITY OF BIDDEFORD POLICE DEPARTMENT; ROGER P. BEAUPRE,
individually and as Chief of Biddeford Police Department; EDWARD
DEXTER, individually and as an employee of Biddeford Police
Department; JACOB WOLTERBEEK, individually and as an employee of
Biddeford Police Department; CITY OF BIDDEFORD; JANE DOES,
Defendants, Appellees,
MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually
and as Commissioner of Maine Department of Public Safety,
Defendants.
No. 20-1481
SUSAN JOHNSON, individually and on behalf of her minor son B.L.
and on behalf of Derrick Thompson, deceased,
Plaintiff, Appellant,
JOCELYNE WELCH, as personal representative of the Estate of
Alivia Welch,
Plaintiff,
v.
CITY OF BIDDEFORD POLICE DEPARTMENT; ROGER P. BEAUPRE,
individually and as Chief of Biddeford Police Department; EDWARD
DEXTER, individually and as an employee of Biddeford Police
Department; JACOB WOLTERBEEK, individually and as an employee of
Biddeford Police Department; CITY OF BIDDEFORD; JANE DOES,
Defendants, Appellees,
MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually
and as Commissioner of Maine Department of Public Safety,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Lynch and Kayatta, Circuit Judges,
and Laplante,* District Judge.
Kristine C. Hanly, with whom Sarah A. Churchill and Nichols
& Churchill, P.A. were on brief, for appellant Jocelyne Welch, as
personal representative of the Estate of Alivia Welch.
Kristine C. Hanly, with whom Hanly Law, LLC was on brief, for
appellant Susan Johnson, individually and on behalf of her minor
son B.L. and on behalf of Derrick Thompson, deceased.
Joseph A. Padolsky, with whom Douglas I. Louison and Louison,
Costello, Condon & Pfaff, LLP were on brief, for appellees.
August 27, 2021
* Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. On December 29, 2012, Alivia
Welch, Susan Johnson, and Derrick Thompson called the Biddeford,
Maine Police Department and reported that their landlord James
Pak, who lived in a house attached to their apartment, had just
made death threats to them. Police Officers Edward Dexter and
Jacob Wolterbeek responded to the call. On Officer Dexter's
instructions, Officer Wolterbeek left shortly after arriving.
We understand the key focus in the case is on what
Officer Dexter then did. Officer Dexter learned that Pak had told
the tenants he had a gun, and had threatened to shoot them and to
bury Thompson in the snow. When Officer Dexter went to speak with
him, the increasingly angry Pak started to describe what he was
going to do to get his name in the newspaper the following day but
stopped, saying to his wife he did not want to reveal those plans
to the officers. Pak then screamed at Officer Dexter that he had
"nothing to lose" and that "you're going to see me in the newspaper
tomorrow," and stated that there would be a "bloody mess." Officer
Dexter chose to leave at that point. He did so without
ascertaining whether Pak indeed had a gun or was drunkenly out of
control. Less than four minutes after Officer Dexter departed,
Pak carried out his threats, entered the tenants' apartment, shot
and killed Welch and Thompson, and shot and injured Johnson with
his gun.
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Johnson, wounded in the shooting, and the estates
representing the murdered Welch and Thompson (collectively, the
"plaintiffs") filed suit, alleging inter alia that the officers
had violated their federal constitutional substantive due process
rights under the state-created danger doctrine.1 The district
court granted summary judgment to the defendants, choosing not to
address first the officers' qualified immunity defense that the
law was not clearly established. Johnson v. City of Biddeford,
454 F. Supp. 3d 75, 91 n.14 (D. Me. 2020). Instead it held that
no substantive due process claim had been presented. Id. at 91.
The district court did so before either it or the parties had the
benefit of our later decision in Irish v. Fowler, 979 F.3d 65 (1st
Cir. 2020) ("Irish II"). We now affirm in part and vacate and
remand in part.
I. Background
On reviewing the grant of defendants' motion for summary
judgment, we recite the facts in the light most favorable to the
plaintiffs. Irish II, 979 F.3d at 68. In doing so, we do not
suggest that these facts are sufficient to decide the substantive
due process issue, that all of them are material, or that all
material facts have been presented.
1 Johnson sued individually and on behalf of her six-year-
old son who was in the apartment at the time of the shooting.
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In 2012 Susan Johnson and her son Derrick Thompson were
renting an apartment in Biddeford, Maine, from Armit and James
Pak. The apartment was attached to the Paks' home and shared a
driveway with the home. Alivia Welch, Thompson's girlfriend, was
also staying in the apartment.
On the evening of December 29, 2012, James Pak got into
an argument with Thompson outside the apartment. Pak screamed at
and made obscene gestures at the plaintiffs. He also threatened
to hit Thompson, pointed his fingers at the plaintiffs in the shape
of a gun and said "bang," and threatened to bury Thompson in the
snow. Thompson called the police and reported that his landlord
was "freaking out on him," making death threats towards him, and
pointing his finger at him like it was a gun. Johnson recorded
portions of this altercation on her cellphone.
Officers Dexter and Wolterbeek were dispatched to the
apartment. Officer Dexter arrived at the scene first and spoke to
the plaintiffs.2 They showed him the videos recorded that evening
of Pak screaming at them. The plaintiffs also told Officer Dexter
exactly the threats described before, including the threat to shoot
the plaintiffs and the threat to bury Thompson. The plaintiffs
warned Officer Dexter that once Pak had tried to follow Thompson
into the apartment after a confrontation. They said that they
2 Officer Dexter was wearing an audio recording device
which captured his interactions with the plaintiffs and the Paks.
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often had confrontations with Pak, but that this time was different
because Armit Pak, James Pak's wife, had not come over, as she
usually did, to apologize to them after Pak "freak[ed] out."
Johnson told Officer Dexter that her six-year-old son was in a
different room, as they were trying to keep him away from the
situation with Pak. Officer Wolterbeek arrived while Officer
Dexter was speaking with the plaintiffs and briefly spoke with Pak
in the driveway. He then went into the apartment and listened to
Officer Dexter's ongoing conversation with the plaintiffs.
Officer Dexter asked the plaintiffs what the biggest problem was
between them and the Paks. They responded that the current conflict
was about how many cars could be parked in the driveway under their
lease agreement. After stepping outside the apartment, Officer
Dexter told Officer Wolterbeek that he could leave.
Officer Dexter then went next door to speak to both of
the Paks. The doors to the Paks' home and the plaintiffs' apartment
are directly adjacent to each other, almost side-by-side. Armit
Pak explained that James Pak was angry with the plaintiffs about
the parking as well as other issues and that they were in the
process of evicting the plaintiffs. In describing to Officer
Dexter his conflicts with Thompson, Pak said that he told Thompson
he had a gun, would shoot him, and said "bang" to Thompson.
Officer Dexter repeatedly explained that he could not do
anything about the car parked in the driveway or the eviction as
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those were "civil issue[s]." He also repeatedly told Pak that
these civil issues would have to be handled through the courts,
that the court process would be difficult, and that the downside
of being a landlord in Maine is that "tenants in this state have
so many rights," which is frustrating for landlords. Officer
Dexter said several times that he "understood" or "felt sorry" for
the Paks.
Officer Dexter also told James Pak that he could not
physically threaten or threaten to shoot his tenants, that such
threats were a criminal offense, and that he could be issued a
criminal summons if he threatened his tenants again. Pak expressed
to Dexter frustration about this information. He asked why
Thompson could threaten him but he could not threaten Thompson.
Officer Dexter responded by saying that Thompson was just being
rude. He then stated that he understood how Thompson’s actions
upset Pak and that Thompson was being disrespectful to Pak. Later
in the conversation, Pak accused Thompson of calling him names and
said, “now I just don’t, I don’t have any rights?” In response,
Officer Dexter again told Pak that he understood his frustration
and apologized to Armit Pak for not having more "responses for
[her]." During the conversation, Pak repeatedly expressed
frustration to Officer Dexter that he felt like he had no rights,
but that his tenants had rights.
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The recordings show Pak was angry throughout the
conversation and in the last three minutes raised his voice
increasingly often and was screaming or yelling. Pak twice told
Officer Dexter that he had "nothing to lose," yelled that he would
be a "big name tomorrow," and said that "you're going to see [him]
in the newspaper." Pak started describing what he was going to do
to get a big name and to be in the newspapers "tomorrow," but
stopped. Officer Dexter heard him say next to Armit Pak, "I'm not
going to tell you in front of [Officer Dexter]." Pak screamed at
Officer Dexter that the "least" he could do was tell the plaintiffs
not to park a third car in the driveway. At one of Pak's angriest
moments, seconds after Pak yelled that he was going to be "a big
name tomorrow" and screamed that Officer Dexter did not understand
Pak's situation, Officer Dexter said, "okay, I'm going to go now."
Officer Dexter then told Pak to keep his distance, and
Pak replied that Officer Dexter "d[id]n't have to worry about
that." The last thing Pak said as Officer Dexter left the house
was that "it's going to be a bloody mess."
Knowing that Pak told Thompson he had a gun and would
shoot him, Officer Dexter nonetheless chose not to ask Pak whether
he had any firearms or ammunition, nor did he search Pak for
weapons. Officer Dexter also chose not to ask Pak whether he had
consumed any alcohol or conduct a field sobriety test. The
officers who arrested Pak had "smelled the odor of intoxicants" on
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him.3 Officer Dexter said he was never within six feet of Pak and
did not smell the alcohol.
Officer Dexter then went back to speak to the plaintiffs
and told them that Pak was very upset and to avoid Pak for the
rest of the evening. Officer Dexter then chose to leave. He did
not mention to the plaintiffs the additional threats Pak had made.
Officer Dexter cleared the scene at 6:51 PM.
Immediately on Officer Dexter's leaving, Pak grabbed his
Smith & Wesson .357 revolver and entered the plaintiffs' apartment.
He shot twice and injured Johnson, then shot once and killed
Thompson and shot twice and killed Welch. At 6:55 PM, Johnson
called 911 to report what had just happened.
II. Procedural History
The plaintiffs filed complaints against the City of
Biddeford, the Biddeford Police Department, the Maine Department
of Public Safety,4 and Officers Dexter and Wolterbeek alleging,
inter alia,5 that the officers had violated their substantive due
3 When Pak was arrested, he had a blood alcohol level of
.15, roughly twice the legal limit. After Pak's arrest, Armit Pak
reported that Pak had been drinking beer "all day."
4 The parties stipulated to dismissing with prejudice all
claims against the Department of Public Safety and its
Commissioner. Johnson, 454 F. Supp. 3d at 81 n.2.
5 The complaints also alleged negligence, negligent
infliction of emotional distress, intentional infliction of
emotional distress, assault and battery, wrongful death, civil
conspiracy, breach of quiet enjoyment under Maine law, and a claim
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process rights under the state-created danger doctrine. The
plaintiffs also brought Monell claims against the Biddeford Police
Chief Roger Beaupre and the City of Biddeford and claims under the
Maine Civil Rights Act against the officers. See Monell v. Dep't
of Soc. Servs., 436 U.S. 658 (1978); Me. Rev. Stat. Ann., tit. 5,
§ 4682(1-A). After discovery, the defendants moved for summary
judgment.
The district court granted the defendants' motion for
summary judgment on all claims. Johnson, 454 F. Supp. 3d at 95.
Relying only on its conclusion that the officers had taken no
affirmative act greatly increasing the danger to the plaintiffs,
it held that there had been no substantive due process violation.
Id. at 91. It did not address whether the law was "clearly
established" for the purposes of the second part of the qualified
immunity inquiry.6 Id. at 91 n.14. As to the Monell and Maine
Civil Rights Act claims, the district court concluded that because
under 42 U.S.C. § 1985.
The district court granted summary judgment to the
defendants on all of these claims. Johnson, 454 F. Supp. 3d at
92-95. The plaintiffs make no argument in their opening briefs as
to any of these claims and any such argument is waived. See, e.g.,
Págan-Lisboa v. Soc. Sec. Admin. 996 F.3d 1, 7 (1st Cir. 2021).
6 Police officers "are entitled to qualified immunity
under § 1983 unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct
was 'clearly established at the time.'" Dist. of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)).
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the officers had not violated the plaintiffs' constitutional
rights, those claims failed. Johnson, 454 F. Supp. 3d at 92.
III. Analysis
The Fourteenth Amendment's Due Process clause states
that "[n]o State shall . . . deprive any person of life, liberty,
or property, without due process of law." U.S. Const. amend. XIV,
§ 1. In general, the state's failure to protect an individual
from private harm does not give rise to a due process claim.
DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189,
197 (1989). As the law has developed since 1989, this circuit
joined other circuits in Irish II in recognizing that a plaintiff
may make out a due process claim under the state-created danger
doctrine by showing
(1) that a state actor or state actors
affirmatively acted to create or enhance a
danger to the plaintiff;
(2) that the act or acts created or enhanced
a danger specific to the plaintiff and
distinct from the danger to the general
public;
(3) that the act or acts caused the
plaintiff's harm; and
(4) that the state actor's conduct, when
viewed in total, shocks the conscience.
979 F.3d 65, 75 (1st Cir. 2020).
The plaintiffs present several arguments that various
acts taken by Officers Wolterbeek and Dexter were affirmative acts
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that enhanced the danger to them.7 We affirm the district court's
decision that Officer Wolterbeek took no affirmative act that
enhanced the danger to the plaintiffs. We see no evidence in the
record that any of Officer Wolterbeek's actions increased any
danger to the plaintiffs. The plaintiffs also do not explain how
any of Officer Wolterbeek's actions, on their own, could give rise
to a state-created danger claim. Officers are not liable under
§ 1983 for the actions of other officers. See Leavitt v. Corr.
Med. Servs., Inc., 645 F.3d 484, 502 (1st Cir. 2011); see also
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating that in § 1983
cases, the plaintiff must show that "each Government-official
defendant, through the official's own individual actions, has
violated the Constitution").
As to Officer Dexter, we are disinclined given the
changes in the law to ourselves decide the merits of the
substantive due process claim. As previously stated, the parties
did not have the benefit of Irish II in conducting their discovery
and presenting evidence in this case. Nor did the district court
have the benefit of that opinion, which clarified this circuit's
law and now must be applied. Irish II is pertinent in at least
three important senses and all three lead us to conclude that a
remand is appropriate here. See Gastronomical Workers Union Loc.
7 We do not address Welch's arguments that the decisions
not to charge or arrest Pak were affirmative acts.
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610 v. Dorado Beach Hotel, 617 F.3d 54, 66 (1st Cir. 2010)
(remanding when intervening precedent meant that district court
"did not engage in the requisite analysis"); United States v.
Taylor, 532 F.3d 68, 70 (1st Cir. 2008) (remanding for
reconsideration where a decision "on the present record would not
fully actualize" the intervening developments in the law).
First, Irish II established that the first prong of the
state-created danger claim is whether a state actor's affirmative
act "created or enhanced" a danger to the plaintiffs. Irish II,
979 F.3d at 75. Without the benefit of our decision, the district
court held, contrary to Irish II, that under the state-created
danger doctrine an affirmative act must "greatly" enhance the
danger to the plaintiffs, rather than simply "enhance" the danger.
Compare Johnson, 454 F. Supp. 3d at 85, with Irish II, 979 F.3d at
75.
Second, Irish II recognized that, "[w]here officials
have the opportunity to make unhurried judgments, deliberate
indifference may shock the conscience, particularly where the
state official performs multiple acts of indifference to a rising
risk of acute and severe danger." 979 F.3d at 75. This holding
may bear on both the parties' argument and the district court's
analysis.
Finally, Irish II established the relevance of state and
national policing policies to the state-created danger analysis.
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It explained that "[a] defendant's adherence to proper police
procedure bears on all prongs of the qualified immunity analysis,"
including whether an officer's conduct shocked the conscience and
whether a reasonable officer "would have believed that his conduct
violated the Constitution." Id. at 77 (quoting Stamps v. Town of
Framingham, 813 F.3d 27, 32 n.4 (1st Cir. 2016)). The parties
have presented little evidence as to police standards and training
in handling disputes between neighbors or landlords and tenants.8
Such evidence may well be important to the disposition of the case.
For example, officers are sometimes required to do more than
Officer Dexter did here when credible death threats are made in a
domestic violence context. See Irish II, 979 F.3d at 72
(explaining that Maine State Police are required to "use all
reasonable means to prevent further abuse" including "[r]emaining
on the scene [of a domestic violence incident for] as long as the
officer reasonably believes there is a danger to the physical
safety of that person without the presence of a law enforcement
officer." (quoting Me. Stat. tit. 19-A, § 4012(6)) (alterations in
8 The record states that Officer Dexter was trained on how
to deal with landlord/tenant disputes, but does not explain the
content of that training.
There is also evidence in the record as to several
Biddeford Standard Operating Procedures, including the Biddeford
Police Department policy which requires officers "to take action
to assist persons who are exhibiting symptoms of deviant behavior
and appear to represent an imminent danger to themselves or to
someone else."
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original)). There may be an analogous duty in cases such as this
one.
We make no determination as to whether the plaintiffs
may prevail on any of the prongs of the Irish II state-created
danger test. Indeed, it would be premature to reach the "shocks
the conscience" prong, as we here address only the district court's
error in evaluating the danger-enhancing prong. Nor do we suggest
that an officer leaving the scene on different facts would amount
to or contribute to an affirmative act that created or enhanced
the danger to others. Our narrow decision to remand, however, is
consonant with the rulings of other federal courts in state-created
danger cases. See, e.g., Martinez v. City of Clovis, 943 F.3d
1260, 1273 (9th Cir. 2019) (holding that officer's conduct of
praising domestic violence abuser as good people in the abuser's
presence after officer refused to arrest abuser following
plaintiff's domestic violence complaint supported plaintiff's
§ 1983 substantive due process claim under the state-created
danger theory; officer's alleged positive remarks could reasonably
have emboldened abuser to continue abusing plaintiff); id. at 1272
(holding that reasonable jury could find officer violated
plaintiff's substantive due process rights under state-created
danger theory where officer "provoked" and "emboldened" domestic
abuser by disclosing to abuser plaintiff's "testimony relating to
[] prior abuse and also stat[ing] that [plaintiff] was not 'the
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right girl' for him"); Mackie v. Cnty. of Santa Cruz, 444 F. Supp.
3d 1094, 1105-07 (N.D. Cal. 2020) (holding that plaintiffs had
adequately pled a state-created danger claim where officer's
interaction with plaintiffs' neighbor regarding plaintiffs'
previous complaints about the neighbor left the neighbor "in an
agitated state" and neighbor subsequently attacked plaintiffs);
Lipman v. Budish, 974 F.3d 726, 746 (6th Cir. 2020) (interviewing
abused child in front of possible abusers was affirmative act that
could give rise to state-created danger claim); McClammy v.
Halloran, No. CV-18-68-GF-BMM, 2019 WL 4674462, at *3 (D. Mont.
2019) (holding that there was a genuine issue of material fact as
to plaintiff's state-created danger claim where plaintiff argued
officers had "increased her risk of harm by 'stoking [her abuser's]
anger' during their investigation").
In these circumstances, it is fairer to all concerned to
remand to the district court in light of this opinion. This
decision makes no new law and does not expand the state-created
danger doctrine; it is simply a remand for consideration of the
factors identified above. We make no factual findings, and our
holding is based on legal error under Irish II. The district court
may in its discretion permit additional discovery in light of the
clarification provided by Irish II. The district court should
address on remand whether Officer Dexter is entitled to qualified
immunity and may choose to address the second step of the qualified
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immunity inquiry before addressing whether Officer Dexter violated
the plaintiffs' substantive due process rights under the state-
created danger doctrine. See Maldonado v. Fontanes, 568 F.3d 263,
269-70 (1st Cir. 2009).
We also remand the Monell and Maine Civil Rights Act
claims against Officer Dexter, which were resolved on the basis
that such claims failed because there was no violation of the
plaintiffs' substantive due process rights.
IV. Conclusion
We vacate the grant of summary judgment as to the § 1983
and Maine Civil Rights Act claims against Officer Dexter and the
Monell claims against Police Chief Beaupre and the City of
Biddeford and remand for further consideration in light of this
opinion and Irish II.
We affirm the grant of summary judgment as to the § 1983
claims against Officer Wolterbeek and all other claims against the
defendants. No costs awarded. See Fed. R. App. P. 39(a).
-Dissenting Opinion Follows-
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KAYATTA, Circuit Judge, dissenting. A layperson reading
the facts of this case as portrayed in the majority opinion could
easily conclude that as a matter of good police practice, Officer
Dexter should have arrested Pak for criminal threatening (assuming
that he could discount Johnson's statement that he felt harassed,
but not really threatened). See, e.g., Me. Stat. tit. 17-A, § 209
(2021). And if the people of Maine wish to render law enforcement
officers personally liable for failing to make arrests in
situations like this one, they may so provide as a matter of state
law. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S.
189, 202 (1989) ("A State may, through its courts and legislatures,
impose such affirmative duties of care and protection upon its
agents as it wishes.").
As the Supreme Court has made clear, however, an
officer's failure to arrest does not violate the Due Process Clause
of the Fourteenth Amendment to the United States Constitution.
Id. at 196–97 ("If the Due Process Clause does not require the
State to provide its citizens with particular protective services,
it follows that the State cannot be held liable under the Clause
for injuries that could have been averted had it chosen to provide
them. As a general matter . . . we conclude that a State's failure
to protect an individual against private violence simply does not
constitute a violation of the Due Process Clause."). The Due
Process Clause provides impediments to arrest; it does not
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encourage, much less require, arrests. Given the weight of
precedent on this point, DeShaney's succinct summation must guide
our holding in this case: "Because . . . the State had no
constitutional duty to protect [the victim] against [another's]
violence, its failure to do so -- though calamitous in hindsight
-- simply does not constitute a violation of the Due Process
Clause." Id. at 202.
By vacating the judgment, the majority suggests that
perhaps a jury could hold Officer Dexter liable -- not for failing
to arrest, but for affirmatively doing something that increased
the likelihood that Pak would kill. But this "state-created
danger" exception only works if what the officer did, other than
failing to arrest Pak, is "so egregious, so outrageous, that it
may fairly be said to shock the contemporary conscience." County
of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1999). In Lewis,
the officer deliberately, recklessly, and with "indifference to
life" initiated a high-speed chase -- of up to 100 miles per hour
-- in pursuit of two teenagers on a motorcycle who had committed
only a speeding violation. Id. at 836, 837, 854. The officer
followed so closely that it was impossible for him to stop safely,
should the motorcycle he was chasing come to a halt. When the
chased motorcycle tipped over, the officer hit and killed its
sixteen-year-old passenger, all in assumed violation of sound law
enforcement practice. Id. at 837, 854. The Supreme Court
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nevertheless found that the officer's conduct "[did] not shock the
conscience." Id. at 855.
The Court in Lewis "left open the possibility that
unauthorized police behavior in other contexts might 'shock the
conscience,'" Chavez v. Martinez, 538 U.S. 760, 774 (2003) (citing
Lewis, 523 U.S. at 850). It gave two examples of such other
contexts: First, the "shock the conscience" standard might be
"satisfied where the conduct was 'intended to injure in some way
unjustifiable by any government interest[.]'" Lewis, 523 U.S. at
849—50. Second, "deliberate indifference" might in theory suffice
to shock the conscience, when such indifference is "patently
egregious." Id. at 850. And the Court has never suggested that
failing to arrest can be rendered actionable simply by labeling
such failure deliberate indifference. To conclude otherwise would
be to overrule DeShaney.
So what did Officer Dexter affirmatively do that was so
egregious and outrageous as compared to the conduct found not to
shock the conscience in Lewis? The answer is "nothing." There is
no dispute as to the content of the conversations he had with
either the victims or with the Paks, as those conversations were
recorded. Officer Dexter listened patiently to the tenants and
gave them common-sense advice about staying away from Pak for the
evening if they could. And he spoke with Pak. Suffice it to say,
he did not urge Pak to shoot anybody. To the contrary, Dexter
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repeatedly and firmly told Pak that violence and threats of
violence were crimes and would lead to his arrest. Pak replied
that he was "not going to shoot [Johnson]." The conversation ended
with Officer Dexter repeating twice an admonishment for Pak to
"keep [his] distance from [the tenants]," to which Pak replied
"[n]o, no you don't have to worry about that."
The majority points to the fact that Officer Dexter
expressed some sympathy for Pak's complaints about his tenants.
To be precise, what he did was play good-cop, bad-cop with Pak,
expressing some sympathy regarding Pak's frustration that the
tenants were in violation of their lease and that the eviction
process was difficult, while admonishing Pak for his threats.
The majority also observes that Officer Dexter did not
ask whether Pak had a gun. This is clear in the record. What is
not clear is why the majority thinks it matters. Following my
colleagues' reasoning, had the officer inquired about the presence
of a firearm, he could now be said to have caused the tenants'
deaths by reminding Pak that he did indeed have a gun. Of course,
asking about the gun might have led the officer to make an arrest.
But as explained above, the failure to arrest does not give rise
to liability under federal law.
Similarly, the majority comments that Officer Dexter did
not ask Pak whether he had consumed any alcohol and did not conduct
a field sobriety test. Although my colleagues make note of Officer
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Dexter's testimony that he was never within six feet of Pak and
did not smell any alcohol, they fail to elucidate what affirmative
duty Dexter was under to investigate Pak's alcohol consumption,
especially when the "legal limit" for blood alcohol levels the
majority cites applies to individuals operating motor vehicles in
the state of Maine, rather than to individuals in their homes.
Officer Dexter's effort clearly did not work in this
instance. Even if we assume that his intervention angered Pak
further, however, I can still say with confidence that no
reasonable person could possibly find that such actions as Officer
Dexter undertook could shock anyone's conscience as that test is
defined in Lewis. Lewis, 523 U.S. at 836, 849—51; id. at 855
("Regardless whether [the officer's] behavior offended the
reasonableness held up by tort law or the balance struck in law
enforcement's own codes of sound practice, it does not shock the
conscience, and petitioners are not called upon to answer for it
under § 1983."). Indeed, if what Officer Dexter said to Pak could
satisfy the "shock the conscience" standard, then it is fair to
ask my colleagues a question that they cannot answer: Short of
arresting Pak, what could the officer had said to him or done that
could not now in hindsight equally be said to shock our
consciences? Suppose, for example, that Officer Dexter had instead
told Pak that he had no sympathy for Pak's complaints as a
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landlord. The officer might now be equally second-guessed by my
colleagues for having worsened things by further provoking Pak.
Aside from detailing certain facts, such as Officer
Dexter's failure to arrest, that could potentially support a
negligence suit but not a federal claim, the majority never really
says what specific facts might be found on remand and how those
facts could change the result of the district court's opinion. To
the contrary, my colleagues seem to hold their own opinion with
pinched noses and at arm's length. So why remand a case that we
already know can go nowhere under current legal standards, creating
false hope for the plaintiffs? The majority cites two
justifications.
First, the majority alleges that Irish v. Fowler, 979
F.3d 65 (1st Cir. 2020) ("Irish II") supposedly "clarified this
circuit's law." But the whole point of Irish II was that the law
regarding the state-created danger doctrine was already so
"clearly established" that qualified immunity was inapplicable.
979 F.3d at 77—80 (describing as "simply incorrect" an assertion
that the law of the state-created danger doctrine was not "clearly
established").
Second, the majority notes that in describing the
exception for state-created dangers, the district court asked
whether Officer Dexter's actions "greatly increas[ed] the danger"
rather than whether they "enhanc[ed] the danger." But this
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difference in terminology could only matter if a jury could
reasonably find that Officer Dexter engaged in affirmative conduct
that both enhanced the danger and was shocking to the conscience.
And as I have explained, even the majority avoids saying that
Dexter's conduct could be found to have shocked the conscience.
If, on remand, the district court reads the majority
opinion carefully, it will note that the opinion does not actually
preclude the district court from rewording its summary of the
applicable enhancement standard and re-entering its order of
dismissal. Should the district court so proceed, perhaps no great
harm will be done, even if nothing is gained beyond a display of
understandable sympathy for the victims. But there is a chance
that courts -- including the district court -- will read the
majority opinion otherwise. They might sensibly think that no
appellate court would remand this case unless, on the present
record, it thought that a judgment for plaintiffs was somehow
possible. And litigants or potential litigants in other cases in
which officers fail to arrest someone will cite this case as
watering down the "shock the conscience" test to a form of re-
labeled negligence.
Such an outcome is contrary to existing law. As the
Supreme Court said in DeShaney: "The most that can be said of the
state functionaries in this case is that they stood by and did
nothing when suspicious circumstances dictated a more active role
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for them. In defense of them it must also be said that had they
moved too soon to [act], they likely would have been met with
charges of improper [behavior], charges based on the same Due
Process Clause that forms the basis for the present charge of
failure to provide adequate protection." DeShaney, 489 U.S. at
203. The same point applies here.
I must therefore respectfully dissent. Officer Dexter
took no affirmative act that could conceivably be said to shock
the conscience as that standard is defined in Lewis. And whether
he should be held personally liable for not doing more is not a
concern of the Due Process Clause.
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