JOHNSON v. CITY OF BIDDEFORD POLICE DEPARTMENT

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

SUSAN JOHNSON, individually )

and on behalf of her minor son )

B.L., and on behalf of Derrick )

Thompson, deceased; and )

JOCELYNE WELCH, as personal )

representative of the Estate of )

Alivia Welch, )

)

Plaintiffs, )

)

v. ) 2:17-cv-00264-JDL

)

CITY OF BIDDEFORD, et al., )

)

Defendants. )

ORDER ON DEFENDANTS’ RENEWED MOTION FOR SUMMARY

JUDGMENT

This case returns to the District Court after a remand from the United States

Court of Appeals for the First Circuit entered on August 27, 2021 (ECF Nos. 101,

102), and the subsequent filing of a Renewed Motion for Summary Judgment by the

remaining Defendants, the City of Biddeford, Biddeford Police Chief Roger P.

Beaupre, and Biddeford Police Officer Edward Dexter (ECF No. 113).

I. INTRODUCTION

On December 29, 2012, James Pak, a landlord in Biddeford, argued with his

tenants, Susan Johnson and her son Derrick Thompson, as well as Thompson’s

girlfriend, Alivia Welch, about the number of cars that they were allowed to park in

the property’s driveway. The argument escalated: Pak made threats and Thompson,

at his mother’s request, called 9-1-1. Biddeford Police Officer Edward Dexter arrived

on the scene, and he spoke with Johnson, Thompson, and Welch (collectively, “the

tenants”1). He then spoke separately with Pak2 and Pak’s wife Armit Pak in their

residence, and Pak made a number of violent threats against the tenants during his

conversation with Officer Dexter. Officer Dexter then met again with the tenants in

their apartment attached to the Paks’ residence. Officer Dexter explained to the

tenants that there was not much he could do about the parking situation because it

was a “civil issue” and he advised them to use caution. ECF No. 78 at 24, ¶ 47.

Minutes after Officer Dexter left the scene, Pak entered the tenants’ apartment and

shot Johnson, Thompson, and Welch. The attack killed Thompson and Welch and

seriously wounded Johnson. Pak was arrested and ultimately pleaded guilty to two

counts of homicide.

Johnson, on her own behalf and that of her minor son, B.L., and as personal

representative of the Estate of Derrick Thompson, and Jocelyne Welch, as personal

representative of the Estate of Alivia Welch (collectively, “the Plaintiffs”), bring this

action3 against the Defendants, including Officer Dexter, the City of Biddeford, and

Police Chief Roger P. Beaupre. The Plaintiffs bring claims under 42 U.S.C.A. § 1983

(West 2022) and the Maine Civil Rights Act, 5 M.R.S.A. § 4682(1-A) (West 2022). In

their Complaints, the Plaintiffs allege that Officer Dexter violated the tenants’

1 All references in this Order to “the tenants” refer to Susan Johnson, Derrick Thompson, and Alivia

Welch, although Alivia Welch appears to have been a guest at the apartment and not a tenant.

2 All references to “Pak” in this Order refer to James Pak individually, and not also to his wife Armit

Pak.

3 Welch and Johnson originally brought their claims separately, but the cases were ordered

consolidated on November 21, 2018.

Fourteenth Amendment substantive due process rights and request that he be held

liable in both his individual and official capacities. The Plaintiffs further allege that

the City of Biddeford should be held liable for the violation of the tenants’ substantive

due process rights under the doctrine established by Monell v. Department of Social

Services, 436 U.S. 658 (1978), and that Police Chief Roger P. Beaupre should be held

liable in his individual and official capacities.4

II. PROCEDURAL HISTORY

The Defendants first moved for summary judgment in June 2019 (ECF No. 66),

contending, among other things, that there were no genuine disputes of material fact

as to whether they could be held liable for the injuries caused by Pak because the

Plaintiffs had failed to show that their rights had been violated under the state-

created danger doctrine. After a hearing, I issued an Order granting the Defendants’

Motion for Summary Judgment (ECF No. 88). See Johnson v. City of Biddeford, 454

F. Supp. 3d 75, 95 (D. Me. 2020). The Plaintiffs appealed to the First Circuit (ECF

Nos. 90, 95), which, with one Judge dissenting, affirmed the judgment in part and

vacated and remanded the judgment in part (ECF Nos. 101, 102). See Welch v. City

of Biddeford Police Dep’t, 12 F.4th 70, 72 (1st Cir. 2021). Specifically, the First Circuit

vacated and remanded the grant of summary judgment as to the section 1983 and

Maine Civil Rights Act claims against Officer Dexter in his individual and official

capacities, the claims against Chief Beaupre in his individual and official capacities,

4 The Plaintiffs originally brought other claims in this case, including claims against other

Defendants such as Officer Jacob Wolterbeek. These claims were resolved by my Order on the

Defendants’ Motion to Dismiss (ECF No. 33) and my Order on the Defendants’ Motion for Summary

and the Monell claims against the City of Biddeford. Id. at 77-78. The First Circuit

affirmed the grant of summary judgment in all other respects, including the grant of

summary judgment with respect to Officer Jacob Wolterbeek. Id. at 78.

In its decision, the First Circuit noted that my order granting summary

judgment preceded the First Circuit’s decision in Irish v. Fowler (“Irish II”), 979 F.3d

65 (1st Cir. 2020), which laid out the elements that a plaintiff must prove in order for

government defendants to be held liable under the state-created danger doctrine for

having increased the danger of third-party violence. Welch, 12 F.4th at 76. The First

Circuit identified several factors, drawn from Irish II, that would be relevant to the

state-created danger analysis in this case, but it did not reach the merits of the

Plaintiffs’ argument that Officer Dexter violated the tenants’ substantive due process

rights. Id. at 76-77. The Court indicated that I “should address on remand whether

Officer Dexter is entitled to qualified immunity and may choose to address the second

step of the qualified immunity inquiry before addressing whether Officer Dexter

violated the plaintiffs’ substantive due process rights under the state-created danger

doctrine.” Id. at 77.

After remand, the remaining Defendants filed a Renewed Motion for Summary

Judgment (ECF No. 113), supported by a separate memorandum of law (ECF No.

114). The Plaintiffs filed a Response in Opposition (ECF No. 118), and the

Defendants filed a Reply (ECF No. 119). The Plaintiffs also filed an Addendum to

their Additional Statements of Material Facts (ECF No. 108), to which the

Defendants replied (ECF No. 109).

Two hearings were held on the Renewed Motion for Summary Judgment, with

the first being held on July 27, 2022 (ECF No. 121). Following that hearing, I directed

the parties to submit additional memoranda addressing decisions from outside the

First Circuit “that demonstrate whether it was clearly established in December 2012

that the state-created danger doctrine applied to claims based on an officer’s decision

to withdraw from a situation in which serious threats of violence had been made by

a third-party, without taking effective action to protect or warn the targets of those

threats.” ECF No. 122 at 2. In late summer and fall of 2022, the parties submitted

the requested memoranda (ECF Nos. 123, 127, 130).

The second hearing was held on October 21, 2022 (ECF No. 131). Because the

parties’ Statements of Material Facts did not capture all of the relevant conversations

recorded by the WatchGuard recording system on Officer Dexter’s person, I directed

the parties to submit an agreed-to transcript of the audio recordings of the events of

December 29, 2012. On December 12, 2022, the parties submitted the transcript

(ECF No. 134), which they agree is, in almost all respects, an accurate transcription.5

See ECF No. 134 at 1.

For the reasons that follow, I grant the Defendants’ Renewed Motion for

Summary Judgment.

5 The cover memo to the transcript notes that there are two points on which the parties disagree

about the accuracy of the transcript (ECF No. 134). Neither point of disagreement is material to my

decision. In paragraph 5 of the cover memo, the Plaintiffs contend that the transcript at several points

identifies the person who was speaking as Alivia Welch when the speaker was actually Susan Johnson.

The Defendants take no position on this issue. On this point, I agree with the Plaintiffs and, in light

of the fact that the Defendants take no position on the subject, I will treat Susan Johnson as having

spoken the identified lines. In paragraph 6, the parties disagree about whether a word in the

transcript should have been identified as unintelligible. Because the parties dispute the accuracy of

the transcript, I do not consider the transcript’s representation as to that particular word or words

and will instead rely on the audio recording, as agreed by the parties. Two other, more substantive,

points of disagreement came to light during my review of the transcript, and I heard from the parties

III. FACTUAL BACKGROUND

At the summary judgment stage, the facts are viewed in the light most

favorable to the Plaintiffs as the non-moving party. See Bienkowski v. Ne. Univ., 285

F.3d 138, 140 (1st Cir. 2002). I previously set forth the relevant facts in my original

order granting summary judgment.6 See Johnson, 454 F. Supp. 3d at 81-83. I revisit

those facts here because the Plaintiffs have filed an Addendum to their Statement of

Additional Material Facts since the remand. The following facts are primarily drawn

from the parties’ original Statements of Material Facts and responses thereto (ECF

Nos. 68, 78, 84), the Plaintiffs’ Addendum to their Additional Statements of Material

Facts (ECF Nos. 108), and the Defendants’ Response to the Addendum (ECF No. 109).

Some facts are also drawn from the agreed-to portions of the transcript (ECF No.

134). However, the parties disagree as to the accuracy of several portions of the

transcript, see supra n.5, and they agree that the transcript does not constitute

evidence in this case. I therefore disregard the disputed portions of the transcript

and rely only on the portions to which the parties have agreed.

A. The Events of December 29, 2012

Susan Johnson and Derrick Thompson leased an apartment in Biddeford from

the Paks. The apartment was attached to the Paks’ residence, and the entryways to

the two units were close to one another. On the evening of December 29, 2012,

Thompson was outside shoveling snow when Pak appeared and began arguing with

him about the number of cars that the tenants were permitted to park in the driveway

6 The First Circuit remanded solely on the basis of legal error under Irish II and did not disturb any

of the property. After Pak made threatening hand gestures in the shape of a gun and

said “Bang,” Johnson, who had videotaped a portion of the argument on her smart

phone, directed Thompson to call the police. Thompson called 9-1-1 and told the

dispatcher that his landlord was “freaking out” on him, making death threats, and

had made gestures toward him in the shape of a gun. ECF No. 78 at 3, ¶ 7. After

Thompson made the call, Thompson, Johnson, and Alivia Welch waited inside the

apartment for the police to arrive.

Biddeford Police Officer Edward Dexter responded to the call. He was

equipped with an operating WatchGuard recording system on his person. Officer

Dexter spoke first with Johnson, Thompson, and Welch in their apartment.

Thompson told Officer Dexter that Pak had started screaming at him about the

number of cars parked in the driveway while Thompson had been shoveling snow and

that Pak had told Thompson to hit him. Thompson and Johnson explained that Pak

frequently behaved in an angry manner, including following Thompson around in the

driveway while harassing him and yelling at him. Johnson stated that there was

“something wrong” with Pak. ECF No. 134-1 at 5:20-21. Officer Dexter viewed the

video footage Johnson had taken on her smart phone of Pak arguing with Thompson

in which Pak was agitated, had grabbed his own crotch, and made sexual comments

about Thompson. Thompson and Johnson also described how Pak had threatened

them by pointing his fingers at them in the shape of a gun and saying “Bang” and by

telling Thompson that Thompson should hit him so that Pak could “bury [Thompson]

in the snow.” ECF No. 134-1 at 10:7. Johnson and Thompson told Officer Dexter that

Johnson’s other son, six-year-old B.L., was in a back room in the apartment and they

were trying to “keep [him] away from this.” ECF No. 134-1 at 13:11-12.

Thompson explained that he had had this kind of conflict with Pak before,

although Johnson said that she had not because she was rarely home. Thompson

agreed with Officer Dexter when Officer Dexter suggested that Pak had “a beef” with

Thompson. ECF No. 134-1 at 16:14-16. Officer Dexter then asked Thompson whether

he had “actually fe[lt] threatened” by Pak at any time. ECF No. 78 at 10, ¶ 27. With

Officer Dexter speaking over him, Thompson responded, “Not that—well, not really I

mean.” ECF No. 78 at 10, ¶ 27. Still speaking over Thompson, Officer Dexter asked

if Thompson instead felt “obviously more harassed,” and Thompson said that he did.

ECF No. 78 at 10, ¶ 27. Thompson, Johnson, and Welch then told Officer Dexter

about Pak’s frequent rages and their dispute with Pak about the number of cars that

could be parked in the driveway. Officer Dexter told them that their dispute with

Pak about the cars was a “civil issue,” but that Pak was “obviously not [allowed] to

cause harassment, threaten, et cetera.” ECF No. 78 at 12, ¶ 29. The tenants also

explained that the issue might be that Pak’s wife, Armit, was not home, and that she

would always speak to them and apologize when her husband was angry. Officer

Dexter suggested staying away from Pak, taking videos of future confrontations, and

disengaging when those confrontations arose.

Officer Dexter asked Thompson, Johnson, and Welch if they had any questions,

and they responded that they did not. He then told them that he was going to speak

with the Paks and would come back afterwards.

Officer Dexter then went to the Paks’ residence and spoke with Pak and his

wife, Armit. Armit told Officer Dexter that her husband was angry with Thompson

and Johnson because they had broken their lease by, among other things, having an

additional car in the driveway, which made it difficult for Pak to remove snow. She

also told Officer Dexter that she and Pak had served an eviction notice on the tenants.

Officer Dexter asked if the Paks were “familiar with the whole eviction process.” ECF

No. 78 at 17, ¶ 41. Armit responded that they were learning about it, and Officer

Dexter responded, “Ok. That’s a civil issue between you guys . . . and there’s nothing

that we can do about that.” ECF No. 78 at 17-18, ¶ 41. Armit stated that she knew

that. Officer Dexter then brought up Pak’s earlier altercation with the tenants, and

Armit responded that the issues with the tenants were “frustrating.” ECF No. 78 at

18, ¶ 41. Officer Dexter said that he understood that, particularly because the Paks

just wanted to remove snow from the yard.

Pak entered the conversation, and he told Officer Dexter that Thompson had

given him the finger and that, in response, Pak had told Thompson that he would

shoot him. Pak also complained that Thompson had acted rudely, and he stated that

he had told Thompson that he had a gun. Officer Dexter told Pak that he understood

that Pak was upset that Thompson had acted disrespectfully, but that even if

Thompson had been rude and disrespectful, Pak could not threaten to shoot or hurt

Thompson.7 Officer Dexter then said that Pak could not say those things and that

7 The parties dispute what precisely Pak said after this comment. Paragraph 42 of the Defendants’

Statement of Material Facts states that Pak said, “I’m not going [to] shoot him.” ECF No. 68 at 12, ¶

42. The Plaintiffs admitted this fact. As noted above, I later ordered that a transcript of Officer

Dexter’s WatchGuard recording be created (ECF No. 131). The parties submitted the transcript, which

Pak’s behavior could constitute criminal threatening. Pak then stated that he would

like to “shoot” and “smack” Thompson. ECF No. 134-1 at 32:14-15. Officer Dexter

told Pak that he could not threaten his tenants, that he should just “turn around and

come inside,” and that he needed to go through the civil process of evicting Thompson

and Johnson, which would be “difficult” and would require patience. ECF No. 134-1

at 32:17-18, 23.

Pak again brought up the issue of the number of cars that could be parked in

the driveway, and Officer Dexter told him that that was a “civil issue between you

and them with your . . . lease agreement.” ECF No. 134-1 at 33:9-11. Pak then

reiterated that the tenants were only entitled to two cars, and he asked Officer Dexter

whether the fact that Officer Dexter said that it was a civil issue meant that the

tenants have the “right to any car they want?” ECF No. 78 at 19, ¶ 43. Officer Dexter

explained again that the lease was a civil agreement between the Paks and the

tenants and that although he understood Pak’s side of the story, “the bottom line is

they agree does not constitute evidence (ECF No. 134). The transcript represents that Pak’s response

was “I’d like to shoot him.” ECF No. 134-1 at 31:17-18. After this issue was brought to the attention

of the parties (ECF Nos. 136, 138), the Plaintiffs moved to amend their response (ECF No. 140) to

paragraph 42 of the Defendants’ Statement of Material Facts to deny that Pak said, “I’m not going [to]

shoot him.” The Defendants opposed this motion (ECF No. 141). I granted the Plaintiffs’ motion and

permitted them to amend their response to paragraph 42 (ECF No. 143). Accordingly, there is a

genuine dispute of fact as to what Pak then said. If a disputed fact is material, summary judgment

will be denied. See Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 348 (1st Cir. 2018) (“A swing

of the summary judgment axe can be averted if the nonmoving party adduces competent evidence

demonstrating the existence of a genuine dispute about a material fact.”). I conclude, however, that

the resolution of this disputed statement made by Pak is not material because regardless of how the

dispute as to Pak’s words is resolved, it does not alter the outcome. See United States v. P.R. Indus.

Dev. Co., 18 F.4th 370, 377 (1st Cir. 2021) (“A fact is material if ‘it possesses the capacity, if determined

as the nonmovant wishes, to alter the outcome of the lawsuit under the applicable legal tenets.’”

(quoting Finamore v. Miglionico, 15 F.4th 52, 58 (1st Cir. 2021))); Feliciano-Muñoz v. Rebarber-Ocasio,

970 F.3d 53, 62 (1st Cir. 2020) (“[A] fact is ‘material’ if it ‘has the potential of affecting the outcome of

that [Pak] cannot threaten” his tenants and instead had to resolve the dispute

“through the courts.” ECF No. 78 at 20, ¶ 43.

Pak then said that he couldn’t “believe [this was] happening.” ECF No. 134-1

at 35:11-12. Officer Dexter again acknowledged that he understood that the situation

was frustrating. Pak then told Officer Dexter, “I got news though. I’m glad that you

say that I don’t have any right[s]. They got right[s].” ECF No. 134-1 at 36:17-19.

Officer Dexter said that that was the “downside of being a landlord in this state,” that

he knew it was “very frustrating,” that he felt “sorry for [Pak] as a landlord because

of the frustration,” and that he “[did not] have a good answer” for Pak. ECF No. 134-

1 at 36:20-37:3. Pak then discussed removing the tenants’ furniture, and Officer

Dexter told him that Pak could be charged with criminal mischief if he damaged the

tenants’ items. Pak asked whether he had “any right[s],” and Officer Dexter said that

Pak would have to go through the eviction process. ECF No. 134-1 at 37:3. Pak

continued to complain about the number of cars, and Officer Dexter said, “I can’t do

a thing about it.” ECF No. 134-1 at 38:10-11. Officer Dexter also suggested that Pak

avoid his tenants for the rest of the night and avoid speaking with them. Officer

Dexter then told Pak, “It’s frustrating[,] I understand that and that’s the downside of

being a landlord here. I wish I could give you more . . . of a guidance or anything but

once you enter into a lease agreement it all becomes a civil issue so you have to go

through the eviction process if that’s what you want to do.” ECF No. 78 at 21, ¶ 44.

Pak then told Officer Dexter, “I ain’t got nothing to lose. I came from

orphanage . . . .” ECF No. 78 at 21, ¶ 44. Officer Dexter responded by telling Pak

that he had a “lot to lose,” including his house, his wife, his dog, and his vehicles.

ECF No. 78 at 22, ¶ 44. After Pak again said that he had “nothing to lose,” Officer

Dexter reminded him that he did have a lot to lose, and that Pak should not let the

tenant issues get to him. ECF No. 78 at 22, ¶ 44.

Pak then told Officer Dexter that Thompson had “called [Pak] jap[,] he called

me names and now I just don’t, I don’t have any rights?” ECF No. 78 at 22, ¶ 45.

Armit told Pak that he had to “stop it.” ECF No. 78 at 22, ¶ 45. Officer Dexter again

expressed that he understood how “frustrating” the situation was for the Paks and

that he wished that he had “more [r]esponses” for them. ECF No. 78 at 22-23, ¶ 45.

Pak then told Officer Dexter, “You’re going to see me in the newspaper.” ECF No. 78

at 23, ¶ 45. Officer Dexter responded that he did not want to see Pak in the

newspaper. Pak then reiterated that Officer Dexter would see him in the newspaper

and that he had nothing to lose. He then said to his wife, “I’m not going to tell you in

front of Officer . . . Dexter.” ECF No. 134-1 at 41:21-25. Officer Dexter simply

responded, “Don’t.” ECF No. 134-1 at 42:1. Pak told Officer Dexter that he had had

enough and that the tenants owned him, and Officer Dexter responded that they did

not own him.

Pak asked Officer Dexter to tell the tenants that they had to move one of the

cars, but Officer Dexter explained that it was a civil issue, so the police “can’t tell

them that.” ECF No. 134-1 at 42:17-18. Pak continued to complain about the tenants’

rudeness and that they slept all day and Officer Dexter twice said, “I can’t do anything

about that.” ECF No. 134-1 at 42:22-23.

Pak continued to express his anger, and Officer Dexter told Pak to keep away

from his tenants. Pak responded, “[n]o, no, no,” and again referenced the fact that he

came from an orphanage, as well as “thousands of dead people.” ECF No. 134-1 at

43:11-15. Pak then told Officer Dexter that Officer Dexter was letting the tenants

“go free.” ECF No. 134-1 at 43:20. Officer Dexter responded that he was not doing

that, and then told Pak that he was leaving and that Pak should keep his distance

from the tenants. Pak again brought up the car issue and asked whether Officer

Dexter could do anything about it. Officer Dexter responded, “I’m sorry. I can’t do

more . . . .” ECF No. 134-1 at 44:17-18. Pak told him that he didn’t have to be sorry,

and that Pak hoped that Officer Dexter would “sleep tight.” ECF No. 134-1 at 44:20.

Toward the end of the conversation, Pak said that he was going to go see the

tenants. Officer Dexter told him to instead keep his distance, and Pak responded

that Officer Dexter didn’t “have to worry about that.” ECF No. 78 at 23, ¶ 46. Officer

Dexter then reiterated that Pak should keep his distance from his tenants and that

he would tell the tenants to keep their distance from him. Near the end of the

conversation, Pak said that there was going to be a “bloody mess” and he also said

“God help you. Looks like we’ll see. There gonna be big name tomorrow.”8 ECF No.

134-1 at 43:7-9; ECF No. 84 at 8, ¶ 19.

8 The summary judgment record is unclear as to the precise point at which these statements were

made. In their Statement of Material Facts, the Defendants originally said that the “final words” in

the conversation consisted of Pak telling Officer Dexter that he didn’t “have to worry about that.” ECF

No. 68 at 14, ¶ 46. The Plaintiffs admitted this fact. But in their Statement of Additional Material

Facts, the Plaintiffs averred that “At the end of Officer Dexter’s exchange with James Pak, Officer

Dexter told Pak that he couldn’t help him, it was a civil issue. James Pak said that there would be a

big name tomorrow and that it would be a bloody mess.” ECF No. 78 at 43, ¶ 19. The Defendants

qualified this statement, noting that the “last thing James Pak told Officer Dexter before Dexter left

the apartment was that he did not need to worry about him.” ECF No. 84 at 8, ¶ 19. Additionally, the

transcript indicates that the statements were made near the end of the conversation. For the purposes

of summary judgment, I treat it as admitted that these comments were made near the end of the

Pak was angry, agitated, and incoherent at various points during his

interaction with Officer Dexter. Officer Dexter did not arrest Pak, nor did he ask Pak

whether Pak had access to a firearm or whether Pak had been drinking alcohol.9

Officer Dexter returned to the tenants’ apartment and discussed the situation

with Johnson, Thompson, and Welch. Officer Dexter told them to keep their distance

from Pak, and he also told them that Pak’s wife was in the residence. Officer Dexter

then said:

I explained to them that this is a civil issue. He’s obviously extremely

upset about the second car and whatnot. Ok? Use caution. You’re out

there shoveling, he comes out, come inside. I think at this point in time

trying to get him to understand what’s happening and the issues of civil

issue between you guys . . . is gonna be hard pressed and you guys are

gonna have more than one conflict unfortunately.

ECF No. 78 at 24, ¶ 47. When Johnson told Officer Dexter that Pak doesn’t listen or

understand, Officer Dexter said, “there’s not much I can do about it because it is a

civil issue.” ECF No. 78 at 24, ¶ 47. He also told Johnson:

So whether you guys are going through the eviction process, the lease

disagreement, whatever process that you guys are going through I can’t

do much about that. . . . But, I can do things about the harassment[,] et

cetera[, and] the threatening.

9 In their Addendum to their Additional Statements of Material Facts, the Plaintiffs assert that (1)

“[o]n the night of December 29, 2012, Pak felt emboldened to immediately carry out his threat when

Officer Dexter left right after Pak verbalized his threat”; and (2) “[o]n the night of December 29, 2012,

Pak felt encouraged to act on his threats based on Officer Dexter confirming his belief that he had no

rights and had to take matters into his own hands.” ECF No. 108 at 3, ¶¶ 44-45. Defendants deny

these statements of fact and object because neither statement is supported by a citation to admissible

evidence. I agree with the Defendants and disregard these statements of fact because they are not

supported by specific citations to the record as required by District of Maine Local Rule 56. See D. Me.

Loc. R. 56(f) (“The court may disregard any statement of fact not supported by a specific citation to

record material properly considered on summary judgment. The Court shall have no independent

duty to search or consider any part of the record not specifically referenced in the parties’ separate

statement of facts.”); see also Lennan v. Healthcare Servs. Grp., Inc., 2:20-cv-00057-GZS, 2022 WL

ECF No. 78 at 24-25, ¶ 47. Johnson then asked whether Officer Dexter was going

back to the Paks’ residence, and Officer Dexter responded that he was done talking

with the Paks. Johnson then told Officer Dexter that Pak often peered into their

windows, and Officer Dexter advised her to use shades to block Pak’s view. Officer

Dexter said, “I wish I had a better answer for you.” ECF No. 134-1 at 47:19-20.

Officer Dexter then said, “I advised [Pak] he can’t harass you, he can’t threaten

you. Whether it was successful or not I don’t know.” ECF No. 78 at 25, ¶ 48.

Thompson responded that they would find out soon enough, and Officer Dexter again

told him and the others to keep their distance from Pak. Officer Dexter and the

tenants discussed Pak’s issues with the number of cars parked in the driveway, and

Officer Dexter said that although the car issues were civil in nature, the tenants could

call the police if there was damage to their vehicles because that could constitute

criminal mischief.

Officer Dexter advised the tenants to stay in for the night, and Johnson asked

Officer Dexter whether Pak had been acting calm during their conversation.10 Officer

Dexter replied that “[c]alm is not the best word” and told Johnson that Pak’s wife was

with Pak in the residence. ECF No. 78 at 26, ¶ 49. He then said that Pak and his

wife were “frustrated” and “hung up” on the car issue. ECF No. 78 at 26, ¶ 49.

Johnson described some of the issues that she had had with the Paks, such as the fact

10 The Defendants’ Statement of Material Facts states the question asked by Susan Johnson as “Was

he acting calm while you were over there?” ECF No. 68 at 16, ¶ 49. The Plaintiffs admitted this fact.

The transcript, however, reported Johnson’s question as “Was his wife calm when you went over

there?” ECF No. 134-1 at 49:14-15. This is a notable difference, but because the parties both agreed

to paragraph 49 of the Defendants’ Statement of Material Facts and that the transcript does not

constitute evidence, the Defendants’ original framing of the question governs for purposes of summary

that they wanted her to attend mandatory meetings with them, and Officer Dexter

just told her, “I can’t.” ECF No. 134-1 at 50:24. Officer Dexter then said goodbye to

the tenants and left the apartment and the residence.

A few minutes after Officer Dexter left the premises in his cruiser, Pak walked

into the tenants’ apartment, took out a gun, and shot Johnson, Thompson, and Welch.

Four minutes after Officer Dexter’s departure, 9-1-1 dispatch received a call about a

shooting at the tenants’ apartment. Officer Dexter was the first law enforcement

officer to respond to the call and arrived at the scene one minute later. After backup

arrived, Officer Dexter entered the apartment and found Thompson and Welch dead,

and Johnson seriously injured. Officer Dexter removed Johnson’s minor son, B.L.,

who had not been shot, from the apartment. Johnson was taken by ambulance to a

hospital and she ultimately survived the shooting, but she suffered extensive injuries.

Pak was arrested that same night.

B. Events After Pak’s Arrest

Pak was interviewed the next day, December 30, 2012, by Maine State Police

Detectives Corey Pike and Lauren Edstrom.11 In the interview, Pak spoke at length

in a rambling and confused manner that is, at times, hard to understand.12 Among

11 In their Addendum to their Additional Statements of Material Facts, the Plaintiffs state that the

interview with Detectives Pike and Edstrom occurred on December 30, 2019. The Defendants

admitted this fact. This appears to be a typographical error. According to an audio recording of the

interview, the interview occurred on December 30, 2012—just hours after the shootings. Pak was

interviewed again by Detective Pike on December 31, 2012. However, no further details about this

interview are included in the parties’ Statements of Material Facts.

12 In their Addendum to their Additional Statements of Material Facts, the Plaintiffs assert that Pak

told his cellmate at the Cumberland County Jail that, regarding his conflict with his tenants, he “took

care of it himself” because the police did nothing to help him. ECF No. 108 at 3, ¶ 42. The Defendants

deny this statement, and they object to the statement on the grounds that it contains inadmissible

many other things, Pak said that (1) he felt that Officer Dexter was “wrong” and that

Dexter had told Pak that the tenants “were protected ‘by the constitution or some

shit,’” ECF No. 109 at 3, ¶ 34; (2) he had told Officer Dexter that “there would be a

bloody mess,” ECF No. 109 at 3, ¶ 33; (3) he felt that Officer Dexter protected the

tenants and not him; and (4) he felt that he had no rights and that Officer Dexter had

said that the tenants had more rights than he did as a landlord.13

Pak eventually pleaded guilty to two counts of homicide and was sentenced to

life in prison.

C. Police Procedures and Training

In 2012, the Biddeford Police Department had a number of standard operating

procedures in effect. The most pertinent14 is General Order 136-96, which sets out

the Police Department’s policy for handling deviant behavior. The General Order

hearsay. See D. Me. Loc. R. 56(e). Because the statement was made by an out-of-court declarant,

James Pak, is being offered for the truth of the matter asserted, see Fed. R. Evid. 801, and falls within

no exceptions or exclusions to the hearsay rule, see Fed. R. Evid. 802, I grant their objection and do

not consider the statement at the summary judgment stage. See Garside v. Osco Drug, Inc., 895 F.2d

46, 50 (1st Cir. 1990) (“Hearsay evidence, inadmissible at trial, cannot be considered on a motion for

summary judgment.”). Because this statement is largely duplicative of other record evidence, even if

it were deemed admissible evidence, it would not affect my ultimate conclusions.

13 The Defendants “qualifiedly den[y]” some of the assertions that the Plaintiffs make about the

interview with Pak in their Addendum to their Additional Statements of Material Facts, including

paragraphs 33, 36, 39, and 40. However, I deem these facts admitted because Local Rule 56 only

permits parties to admit, deny, or qualify statements of fact—not to “qualifiedly den[y]” them. D. Me.

Loc. R. 56(c). In any event, the citations provided by the Defendants to support their qualified denials

do not properly controvert the Plaintiffs’ statements. The Defendants only provide broader excerpts

of the interview with Pak that do, in fact, contain the statements referred to by the Plaintiffs.

14 Throughout this litigation, the Plaintiffs and Defendants have cited to a number of other Biddeford

Police Department Standard Operating Procedures, including General Order No. 129 and General

Order No. 02-01. The parties have focused their arguments on General Order 136-96, likely because

the other policies contain irrelevant or overly general provisions, such as the requirements in Standard

Operating Procedure General Order No. 02-01 that police officers take appropriate action to “protect

life and property,” “preserve the peace,” “prevent crime,” and “detect and arrest violators of the law.”

ECF No. 69 at 418. Like the parties, I focus my analysis on General Order 136-96, which provides

expressly provides, “It shall be the policy of the Biddeford Police Department to assist

persons who are exhibiting symptoms of deviant behavior and appear to represent an

imminent danger to themselves or to someone else.” ECF No. 69 at 411. The order

accordingly empowers officers to use their discretion to take into custody people

exhibiting deviant behavior who represent an imminent and substantial danger to

themselves or others, so long as probable cause is present. Additionally, Officer

Dexter had received training about how to deal with emotionally disturbed

individuals and training on handling landlord/tenant disputes, but, as the First

Circuit noted in Welch, 12 F.4th at 76, the summary judgment record contains scant

information about the content, frequency, or extent of that training.15

IV. LEGAL ANALYSIS

Summary judgment is granted when the moving party shows that “there is no

genuine dispute as to any material fact” and that it “is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A fact is material if “its existence or

nonexistence has the potential to change the outcome of the suit.” Rando v. Leonard,

826 F.3d 553, 556 (1st Cir. 2016) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern,

605 F.3d 1, 5 (1st Cir. 2010)). “An issue is ‘genuine’ if the evidence of record permits

a rational factfinder to resolve it in favor of either party . . . .” Id. (quoting Borges,

605 F.3d at 4). The facts in the record are construed in the light most favorable to

15 In Welch, the First Circuit suggested that the parties could supplement the record with additional

evidence as to police standards and training, particularly in the context of landlord/tenant disputes.

12 F.4th at 76. Despite this invitation, the parties did not supplement the record with details about

the nonmoving party, and all reasonable inferences are drawn in favor of the

nonmoving party. See Braga v. Genlyte Grp., Inc., 420 F.3d 35, 38 (1st Cir. 2005).

I proceed by addressing, in turn, (A) the Plaintiffs’ claim under section 1983

that Officer Dexter violated the tenants’ substantive due process rights and that he

can be held liable in his individual capacity; (B) the Plaintiffs’ claims that Chief

Beaupre and the City of Biddeford can be held liable for Officer Dexter’s alleged

constitutional violations, and that Officer Dexter can be held liable in his official

capacity; and (C) Welch’s claim that she is entitled to relief under the Maine Civil

Rights Act, 5 M.R.S.A. § 4682(1-A), for violations of the U.S. Constitution and the

Maine Constitution.

A. Section 1983 Claim Against Officer Dexter

I first consider whether the Defendants are entitled to summary judgment on

the Plaintiffs’ claim, brought under 42 U.S.C.A. § 1983, that Officer Dexter should be

held liable in his individual capacity because he deprived the tenants of their

Fourteenth Amendment substantive due process rights by enhancing the danger that

Pak posed toward them, resulting in harm to them.16 The Defendants argue that

they are entitled to summary judgment based on qualified immunity because (1)

Officer Dexter did not violate the tenants’ substantive due process rights and (2) the

16 In the sections of their Complaints detailing the alleged section 1983 violation, the Plaintiffs also

contend that the tenants’ rights under the Maine Constitution were violated by Officer Dexter and the

other Defendants. However, section 1983 provides a right of action only for violations of the United

States Constitution—not state constitutions. Thus, the Plaintiffs’ state constitutional claims are not

properly presented as section 1983 violations. See Grenier v. Kennebec Cnty., 748 F. Supp. 908, 913

(D. Me. 1990) (“Section 1983 does not make available to Grenier a federal private right of action to

seek relief from violations either of Maine’s constitution or any of Maine’s statutes. Section 1983

claims are valid only against officials who, acting under state law, violate either the federal

Constitution or federal statutes.”); Ahern v. O’Donnell, 109 F.3d 809, 815 (1st Cir. 1997) (“By the terms

unlawfulness of Officer Dexter’s conduct was not clearly established in 2012 when

the shootings occurred. In response, the Plaintiffs argue that summary judgment is

not appropriate because (1) there is a genuine dispute of material fact as to whether

the Defendants violated the tenants’ substantive due process rights under the state-

created danger doctrine, and (2) the applicability of that doctrine to the facts of this

case was apparent at the time of the shootings in 2012. Resolving the Defendants’

Renewed Motion for Summary Judgment thus turns on whether Officer Dexter is

entitled to qualified immunity.

“Qualified immunity is a doctrine that shields government officials performing

discretionary functions from liability for civil damages ‘insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Est. of Bennett v. Wainwright, 548 F.3d 155, 167 (1st

Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Government

officials sued in their individual capacities are immune from damages claims unless

‘(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness

of their conduct was clearly established at the time.’” Irish II, 979 F.3d at 76 (quoting

Dist. of Columbia v. Wesby, --- U.S. ---, 138 S. Ct. 577, 589 (2018)); see also Cortés-

Reyes v. Salas-Quintana, 608 F.3d 41, 51 (1st Cir. 2010) (“The qualified immunity

analysis has two parts. A court must decide whether the facts shown by the plaintiff

make out a violation of a constitutional right and whether the right was ‘clearly

established’ at the time of the alleged violation by the defendant.” (citing Pearson v.

Callahan, 555 U.S. 223, 232 (2009))). I will address both prongs of the clearly

established test, beginning with the first prong—whether the facts set out by the

parties show that the tenants’ constitutional rights were violated. At the summary

judgment stage, a court resolves this prong by “look[ing] beyond the complaint to the

broader summary judgment record.” Riverdale Mills Corp. v. Pimpare, 392 F.3d 55,

62 (1st Cir. 2004); see also id. (“The first prong inquiry will usually gain specificity at

th[e] summary judgment stage because of the ability to determine then whether [the]

plaintiff’s claim survives in light of all the uncontested facts and any contested facts

looked at in the plaintiff’s favor, rather than just the allegations that appear on the

face of the complaint.”).

1. Whether the Tenants’ Substantive Due Process Rights Were

Violated

The Due Process Clause of the Fourteenth Amendment provides that “[n]o

State shall . . . deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. “This guarantee has both substantive and

procedural components. The substantive due process guarantee functions to protect

individuals from particularly offensive actions on the part of government officials,

even when the government employs facially neutral procedures in carrying out those

actions.” Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006). “In order to establish a

substantive due process claim, the plaintiff must first show a deprivation of a

protected interest in life, liberty or property.” Rivera v. Rhode Island, 402 F.3d 27,

33-34 (1st Cir. 2005). “Second, the plaintiff must show that the deprivation of this

protected right was caused by governmental conduct.” Id. at 34.

(a) Deprivation of a Protected Interest in Life, Liberty, or

Property

As to the first requirement, the Plaintiffs have shown that the tenants were

deprived of an interest protected by the Constitution. It is undisputed that the

deprivation of life, as occurred here, is a violation of a constitutionally protected

interest. See Rivera, 402 F.3d at 34; Irish v. Fowler (“Irish II”), 436 F. Supp. 3d 362,

413 (D. Me. 2020), aff’d in part and rev’d in part, 979 F.3d at 75. Additionally,

personal harm, as was done to Susan Johnson, can also result in a violation of a

constitutionally protected interest.17 See Irish II, 436 F. Supp. 3d at 413. The

difficulty arises with the second requirement of the substantive due process analysis

because the violence that deprived the tenants of their constitutionally protected

interests was committed by James Pak, a private individual, rather than by a

government actor. See Rivera, 402 F.3d at 34; Irish II, 436 F. Supp. 3d at 413. Thus,

whether the tenants’ constitutional rights were violated turns on a difficult question:

under what circumstances does the failure of a governmental actor, such as a police

officer, to protect an individual from private violence violate the individual’s

constitutional rights.

(b) Deprivation Caused by Government Conduct: The State-

Created Danger Doctrine

The starting point for the analysis of whether a constitutional deprivation was

caused by government conduct is the Supreme Court’s decision in DeShaney v.

17 The Plaintiffs, citing the dissenting opinion in a Law Court case, Blackhouse v. Doe, 2011 ME 86,

¶ 37, 24 A.3d 72, also argue that the tenants suffered a deprivation of their fundamental right to quiet

enjoyment of their residence. As noted above, however, section 1983 does not provide a right of action

Winnebago County Department of Social Services, 489 U.S. 189 (1989). In DeShaney,

the Supreme Court recognized that, as a general matter, “a State’s failure to protect

an individual against private violence simply does not constitute a violation of the

Due Process Clause.” Id. at 197. Like this case, the facts of DeShaney are shocking

and tragic: Joshua DeShaney, a child, had been repeatedly abused by his father—a

fact that was brought to the attention of the Winnebago County Department of Social

Services. Id. at 192. The Department had several interactions with the child and his

father, and caseworkers observed injuries to the child and learned that he had been

hospitalized for injuries caused by suspected child abuse. Id. at 192-93. The

Department obtained a court order temporarily placing the child in the custody of the

hospital in which he was being treated for his injuries, but the child was ultimately

returned to his father. Id. at 192. Despite strong evidence of child abuse, the

Department did not remove the child from his father’s custody, and his father

eventually severely and permanently injured him. Id. at 193.

The child, through his mother, brought an action under section 1983, alleging

that the Department “had deprived [him] of his liberty without due process of law, in

violation of his rights under the Fourteenth Amendment, by failing to intervene to

protect him against a risk of violence at his father’s hands of which they knew or

should have known.” Id. The District Court granted summary judgment for the

Department, and the Seventh Circuit affirmed. Id. The Supreme Court agreed,

rejecting the mother’s argument and concluding that “nothing in the language of the

Due Process Clause itself requires the State to protect the life, liberty, and property

of its citizens against invasion by private actors.” Id. at 195. The Supreme Court

further concluded that the Due Process Clause “forbids the State itself to deprive

individuals of life, liberty, or property without ‘due process of law,’ but its language

cannot fairly be extended to impose an affirmative obligation on the State to ensure

that those interests do not come to harm through other means.” Id. In reaching this

conclusion, the Supreme Court emphasized that although the Department might

have been liable under principles of tort law, the Due Process Clause “does not

transform every tort committed by a state actor into a constitutional violation.” Id.

at 202.

However, DeShaney also acknowledged that under certain circumstances, a

State’s failure to protect an individual from private violence can result in a

constitutional violation. Id. at 198. One such circumstance is when there is a “special

relationship” between the State and the individual.18 See id. at 197-98. Additionally,

and particularly relevant to this case, the Supreme Court further noted:

While the State may have been aware of the dangers that Joshua faced

in the free world, it played no part in their creation, nor did it do

anything to render him any more vulnerable to them. That the State

once took temporary custody of Joshua does not alter the analysis, for

when it returned him to his father’s custody, it placed him in no worse

position than that in which he would have been had it not acted at all

. . . . Under these circumstances, the State had no constitutional duty

to protect Joshua.

18 Later cases have interpreted the “special relationship” discussed in DeShaney as being present,

for example, when an individual is involuntarily committed to the custody of the State. See Meléndez-

García v. Sánchez, 629 F.3d 25, 36 (1st Cir. 2010); Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71, 79-80 (1st

Cir. 2005). There has been no assertion that the “special relationship” exception to DeShaney applies

in this case.

Id. at 201. This language has been cited by those courts which have adopted the

doctrine at issue in this case: the state-created danger doctrine.19 See, e.g., Irish II,

979 F.3d at 73; Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998);

Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996); Wood v. Ostrander, 879 F.2d 583,

590 (9th Cir. 1989).

The state-created danger doctrine has been recognized by a substantial

majority of federal circuits.20 Irish II, 979 F.3d at 73. Under this doctrine, “although

the state’s failure to protect an individual against private violence does not generally

violate the guarantee of due process, it can where the state action ‘affirmatively

place[s] the plaintiff in a position of a danger,’ that is, where state action creates or

exposes an individual to a danger which he or she would not have otherwise faced.”

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (alteration in

19 It is worth noting that the state-created danger theory was recognized or discussed by multiple

federal circuits prior to DeShaney. See, e.g., Wells v. Walker, 852 F.2d 368, 370 (8th Cir. 1988);

Escamilla v. City of Santa Ana, 796 F.2d 266, 269 (9th Cir. 1986); Bowers v. DeVito, 686 F.2d 616, 618

(7th Cir. 1982). In a memorable turn of phrase relied upon by other courts, the Seventh Circuit in

Bowers noted:

We do not want to pretend that the line between action and inaction, between inflicting

and failing to prevent the infliction of harm is clearer than it is. If the state puts a

man in a position of danger from private persons then fails to protect him, it will not

be heard to say that its role was merely passive; it is as much an active tortfeasor as if

it had thrown him into a snake pit.

686 F.2d at 618; see also Escamilla, 796 F.2d at 269 (quoting Bowers, 686 F.2d at 618).

20 The Fifth and Eleventh Circuits have largely refused to recognize the state-created danger

exception to the DeShaney rule. See Cook v. Hopkins, 795 F. App’x 906, 914 (5th Cir. 2019); Beltran

v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004); Vaughn v. City of Athens, 176 F. App’x 974, 976

n.1 (11th Cir. 2006); Waddell v. Hendry Cnty. Sheriff’s Off., 329 F.3d 1300, 1305 (11th Cir. 2003); White

v. Lemacks, 183 F.3d 1253, 1258 (11th Cir. 1999). However, as the First Circuit noted in Irish II, 979

F.3d at 78 n.7, the Eleventh Circuit still allows for recovery in some circumstances involving state-

created danger even though it no longer has a discrete state-created danger doctrine, and the Fifth

Circuit “has not explicitly foreclosed the possibility that it might recognize the doctrine in the future.”

Irish II, 979 F.3d at 78 n.7 (citing Waddell, 329 F.3d at 1305-06, and Doe ex rel. Magee v. Covington

original) (quoting Wood, 879 F.2d at 589-90). Courts that have recognized the

doctrine “require[] that the defendant’s acts be highly culpable and go beyond mere

negligence.” Irish II, 979 F.3d at 74.

In Irish II, the First Circuit officially recognized the state-created danger

doctrine and identified four elements that a plaintiff asserting a state-created danger

claim must show. Id. at 75. Specifically, the Plaintiffs must demonstrate:

(i) that a state actor or state actors affirmatively acted to create or

enhance a danger to the plaintiff;

(ii) that the act or acts created or enhanced a danger specific to the

plaintiff and distinct from the danger to the general public;

(iii) that the act or acts caused the plaintiff’s harm; and

(iv) that the state actor’s conduct, when viewed in total, shocks the

conscience.

Id. I consider each element in turn.

(i) Affirmative Act that Created or Enhanced a Danger

The first element of a state created danger claim is proof that “a state actor’s

affirmative act ‘created or enhanced’ a danger to the plaintiffs.” Welch, 12 F.4th at

76 (quoting Irish II, 979 F.3d at 75). It is not required that the affirmative act be

shown to have “greatly” enhanced the danger. Id. Rather, the plaintiff must

demonstrate only that “a state actor or state actors affirmatively acted to create or

enhance a danger to the plaintiff.” Irish II, 979 F.3d at 75; Welch, 12 F.4th at 76.

“[T]he absence of an affirmative act by the state in creating the danger is fatal to [a

state-created danger] claim.” Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 55 n.9 (1st

Cir. 2006); see also Burella v. City of Philadelphia, 501 F.3d 134, 147-48 (3d Cir. 2007)

(“[I]t is apparent that what [the plaintiff] actually contends is that the officer failed

to act at all. We agree with the officers that this argument is deficient as a matter of

law.”). “And although ‘inaction can often be artfully recharacterized as “action,”

courts should resist the temptation to inject this alternate framework into omission

cases.’” Doe v. Rosa, 795 F.3d 429, 441 (4th Cir. 2015) (quoting Pinder v. Johnson, 54

F.3d 1169, 1176 n.* (4th Cir. 1995)).

The Plaintiffs contend that the affirmative act requirement is met here for two

reasons. First, they argue that the affirmative act requirement should be read

broadly so as to be satisfied when “law enforcement has responded to a situation, is

made directly aware of a specific risk of harm, and then withdraws without mitigating

that harm.” ECF No. 118 at 6. In support, they contend that an officer’s decision to

“withdraw[] without action is a choice” and that the “choice not to act should bear

equal liability as when officers act.” ECF No. 118 at 7. This argument, however, runs

directly contrary to the DeShaney rule that state actors are not liable for their failure

to act. 489 U.S. at 202-03. The Plaintiffs cannot circumvent that rule by recasting

law enforcement inaction as action. See Soto v. Flores, 103 F.3d 1056, 1064 (1st Cir.

1997); Pinder, 54 F.3d at 1175. Accepting such a broad reading of the affirmative act

requirement would greatly expand the circumstances in which the state-created

danger doctrine applies. See Pinder, 54 F.3d at 1175 (concluding that an officer’s

assurances to the victim and his decision not to charge the assailant were not

affirmative acts giving rise to civil liability because, if so, “every representation by

the police and every failure to incarcerate would constitute ‘affirmative actions’ giving

rise to civil liability”).

The Plaintiffs’ second argument is more persuasive. They contend that Officer

Dexter committed an affirmative act that enhanced the danger to the tenants by the

way he interacted with Pak, which had the effect of agitating Pak, thereby increasing

the risk that Pak would act on his desire to harm the tenants, and by failing to inform

the tenants of the increased risk to them.21

Courts have concluded that law enforcement officers have enhanced the risk of

harm to a plaintiff by disclosing information or conducting an interview in a manner

that placed a plaintiff at greater risk of harm. See Irish II, 436 F. Supp. 3d at 415-16

(concluding that there was a dispute of material fact as to whether a police officer’s

voicemail informing a violent suspect that he had been accused of rape increased the

danger to the victim who reported the rape); Kennedy, 439 F.3d at 1063 (concluding

that police officers placed the victim in greater danger by notifying a person accused

of child molestation of the accusation made against him by the victim despite a

promise to warn the victim before doing so); Lipman v. Budish, 974 F.3d 726, 746

(6th Cir. 2020) (concluding it was a reasonable inference that interviewing a child

21 The Plaintiffs also argue that Officer Dexter’s expressions of sympathy for the Paks’ difficulties as

landlords and his decision not to arrest Pak could have had the effect of emboldening Pak by leading

him to believe that he would not be punished for his criminal misconduct. The Plaintiffs are correct

that a police officer’s implicit or explicit condonation of criminal conduct can lead to state-created

danger liability. See Martinez v. City of Clovis, 943 F.3d 1260, 1273, 1276-77 (9th Cir. 2019)

(concluding that police officers affirmatively enhanced the danger to a domestic abuse victim when

they, among other things, disparaged the victim, praised the abuser, and signaled to the abuser that

he would not be arrested); Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 429-30 (2d

Cir. 2009) (concluding that police officers affirmatively enhanced the danger to a domestic abuse victim

by, among other things, discussing football with an abuser when responding to a domestic abuse

complaint, not making any domestic incident report, and repeatedly declining to arrest the abuser

despite his admission that he could not help “smack[ing] [the victim] around”). However, Officer

Dexter’s actions, including his expressions of sympathy, do not align with the actions of the officers in

these cases. Officer Dexter did not condone Pak’s actions over the course of multiple interactions—

instead, his interaction with Pak took place in the span of one conversation in which he repeatedly

told Pak that Pak could be arrested if he continued his criminal conduct. Consequently, I reject the

abuse victim “in front of her alleged abusers and asking about the source of her

injuries increased her risk of further abuse”); Martinez v. City of Clovis, 943 F.3d

1260, 1272 (9th Cir. 2019) (concluding that the record showed that a police officer

“provoked” a domestic abuser by, among other things, relating that his victim had

said that she had previously been abused). Although these cases are not entirely

comparable to the circumstances facing Officer Dexter because Officer Dexter did not

reveal any information to Pak that put the tenants at greater risk, they do support

the view that police officers can be held liable for conduct that agitates a third party

and makes it more likely that the third party will harm a particular person. Two

District Court decisions are particularly helpful in illustrating this point: Mackie v.

County of Santa Cruz, 444 F. Supp. 3d 1094 (N.D. Cal. 2020), and McClammy v.

Halloran, No. CV-18-68-GF-BMM, 2019 WL 4674462 (D. Mont. Sept. 25, 2019).

In Mackie, a police officer confronted a neighbor who had been having conflicts

with one of the plaintiffs, Mackie. See 444 F. Supp. 3d at 1100-02, 1105. The officer

exchanged vulgar insults with the neighbor, worked the neighbor up into a “deranged

and threatening state,” and did not disabuse the neighbor of the notion that Mackie

had called the police. Id. at 1105. The neighbor subsequently shot Mackie after the

officer left. Id. at 1102. The District Court concluded that the plaintiffs’ complaint

stated a state-created danger claim because the officer’s “actions left [the neighbor]

in an agitated state and thereby increased the risk that [he] would attack [Mackie].”

Id. at 1106. The District Court found it noteworthy that prior to the interaction with

the officer, the neighbor “was not in an aggressive state.” See id. Liability under the

state-created danger doctrine was cognizable because the officer left the plaintiffs “in

a situation that was more dangerous than the one in which [he] found [them].” Id. at

1106 (second alteration in original) (quoting Munger v. City of Glasgow Police Dep’t,

227 F.3d 1082, 1086 (9th Cir. 2000)).

In McClammy, police officers responded to a 9-1-1 call in which the plaintiff

said that she had been physically abused by her boyfriend. 2019 WL 4674462, at *1.

The officers spoke separately with the alleged abuser and the plaintiff, and they

allegedly acted dismissively toward the plaintiff’s complaints before leaving the

scene. Id. After the officers left, the abuser threw the plaintiff on the couch, grabbed

her hair, and screamed, “[n]o red marks bitch!” Id. at *3 (alteration in original).

According to the plaintiff, this behavior indicated that the Officers must have told the

abuser that they had not seen any red marks. Id. The court concluded that summary

judgment on the plaintiff’s state-created danger claim was inappropriate because

there existed genuine disputes as to whether the officers had actually made the

statement about not seeing red marks and, if so, the nature of the abuser’s reaction

to that statement. Id. With respect to the latter, the court observed that “[t]he trier

of fact must determine whether the statement increased [the abuser]’s anger towards

[the victim], thereby placing her in more danger than when the Officers first arrived

at the scene.” Id.

In this case, Officer Dexter’s efforts to assuage Pak not only did not succeed—

they arguably made matters worse. From the outset, Pak expressed a desire to shoot

the tenants. The record supports a conclusion that Pak’s level of agitation increased

after Pak expressed his belief that Officer Dexter had confirmed that, as a landlord,

Pak did not have any rights. Pak stated, “I got news though. I’m glad that you say

that I don’t have any right[s]. They got right[s].” ECF No. 134-1 at 36:17-19. A jury

could find that Officer Dexter seemingly confirmed Pak’s beliefs, with his statements

about how that was the “downside of being a landlord here,” that he knew it was “very

frustrating,” and that he wished he “had more [r]esponses” for the Paks. ECF No. 78

at 21-23, ¶¶ 44, 45. Pak then made statements indicating (1) that he would act on

his threats—“[y]ou’re going to see me in the newspaper,” (2) that he would act soon—

there’s going to be a “big name tomorrow,” and (3) what he intended to do—there was

going to be a “bloody mess.” ECF No. 78 at 23, ¶ 45; ECF No. 84 at 8, ¶ 19.

The content of Officer Dexter’s conversation with Pak and Pak’s reactions to

Officer Dexter’s statements support the view that, like the officer in Mackie, 444 F.

Supp. 3d at 1106, Officer Dexter agitated Pak and enhanced the danger to the

tenants.

The Defendants attempt to distinguish Mackie on its facts. They note that in

Mackie, unlike in this case, there was no evidence suggesting a preexisting risk of

danger to the plaintiffs and that the Mackie court rested its holding in part on the

fact that “prior to [the officer]’s arrival and interactions with [the neighbor], [the

neighbor] was not in an aggressive state and was merely walking on the . . . street,

apparently drinking from a can of beer.” 444 F. Supp. 3d at 1106 (fourth alteration

in original). It is true that in this case, Pak was agitated and aggressive before Officer

Dexter arrived and had already made threatening comments to the tenants. But

state-created danger liability need not be predicated on a police officer creating a new

danger. Rather, as recognized in Irish II, state-created danger liability can arise

where “a state actor or state actors affirmatively acted to create or enhance a danger

to the plaintiff.” 979 F.3d at 75 (emphasis added). There is a genuine dispute of

material fact as to whether that occurred here.

The undisputed facts also support a conclusion that Officer Dexter further

enhanced the danger to the tenants by his actions after he left the Paks. After leaving

the residence, Officer Dexter returned to meet with the tenants, but he failed to

inform them of the extent and immediacy of the danger that Pak presented. Instead,

he advised the victims to go inside when Pak came outside and to keep their distance

from Pak. The preventative measures he suggested were far less than what was

needed to protect the tenants from a landlord threatening, as Pak had stated

moments earlier, that there was going to be a “bloody mess.” ECF No. 84 at 8, ¶ 19.

Officer Dexter’s advice also failed to convey that the danger facing the tenants had

increased since he had first spoken to them. His comments were, therefore,

misleading, and thus could give rise to state-created danger liability. See Irish II,

979 F.3d at 79 (“[F]ailing to take steps to mitigate the danger [that the police] had

created and misleading the victim about the level of police protection she had could

likewise give rise to a constitutional violation under the state-created danger

doctrine.” (citing Kennedy, 439 F.3d at 1063-65)).

Based on the undisputed material facts viewed in the light most favorable to

the Plaintiffs as the nonmoving party, a jury could conclude that the affirmative act

requirement is met here because Officer Dexter’s interactions with Pak enhanced the

danger Pak posed toward the victims, and Officer Dexter’s final meeting with the

tenants misled them as to the immediacy and extent of the danger they faced.

Although the Defendants are correct that merely “[f]ailing to defuse a preexisting

danger is not an affirmative act” that would impose liability under the state-created

danger doctrine, Doe1 v. Bos. Pub. Schs., 17-cv-11653-ADB, 2019 WL 1005498, at *5

(D. Mass. Mar. 1, 2019) (quoting Doe v. Berkeley Cnty. Sch. Dist., 189 F. Supp. 3d 573,

577 (D.S.C. 2016)), the summary judgment record supports the conclusion that not

only did Officer Dexter fail to defuse the preexisting danger presented by Pak, Officer

Dexter’s actions enhanced the danger. Thus, the Defendants are not entitled to

summary judgment on the first prong of the state-created danger test.

(ii) Specific Danger

The second element of the state-created danger test is whether “the act or acts

created or enhanced a danger specific to the plaintiff and distinct from the danger to

the general public.” Irish II, 979 F.3d at 75. Nowhere in the Defendants’ summary

judgment briefing do they contend that they are entitled to summary judgment on

this element. Moreover, the record evidence could support the conclusion that this

element is satisfied. If a fact-finder were to determine that Officer Dexter’s efforts

agitated Pak and thus increased the danger of violence, that enhanced danger would

almost certainly be to Johnson, Thompson, and Welch—the people with whom Pak

had argued earlier in the evening and who had been present for his threats—rather

than the general public at large. As such, the Defendants are not entitled to summary

judgment on this element.

(iii) Causation

The third element of the state-created danger test is whether “the act or acts

caused the plaintiff’s harm.” Id. at 75. Again, the Defendants have not provided any

developed argument as to why they are entitled to summary judgment on this

element. Moreover, the sequence of events occurring on December 29, 2012, as

described in this decision could support a conclusion that the causation element has

been satisfied.

(iv) Shock the Conscience

The fourth element of the state-created danger test is whether “the state

actor’s conduct, when viewed in total, shocks the conscience.” Id. at 75. In

determining whether conduct shocks the conscience for purposes of the state-created

danger doctrine, all of the circumstances should be considered and not just the

defendant’s affirmative acts. See id. at 75 (noting that the state actor’s conduct

should be “viewed in total”); Irish II, 436 F. Supp. 3d at 418 (“While these examples

of inaction by the Individual Officers do not independently give rise to a state-created

danger theory of liability, they are relevant to the Court’s consideration of the ‘shocks

the conscience’ standard.” (citing Irish v. Maine (“Irish I”), 849 F.3d 521, 528 (1st Cir.

2017))); Est. of B.I.C. v. Gillen, 710 F.3d 1168, 1174 (10th Cir. 2013) (“Although

affirmative conduct is ‘a necessary precondition’ of a danger-creation claim, the

shock-the-conscience part of such a claim concerns the defendant’s ‘conduct as a

whole.’” (citations omitted) (first quoting Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d

909, 925 (10th Cir. 2012); then quoting Uhlrig v. Harder, 64 F.3d 567, 576 (10th Cir.

1995))).

For conduct to shock the conscience, the conduct “must be ‘so egregious, so

outrageous, that it may fairly be said to shock the contemporary conscience.’” Rivera,

402 F.3d at 36 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998));

see also J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 2010) (“The burden to show state

conduct that ‘shocks the conscience’ is extremely high, requiring ‘stunning’ evidence

of ‘arbitrariness and caprice’ that extends beyond ‘[m]ere violations of state law, even

violations resulting from bad faith’ to ‘something more egregious and more extreme.’”

(alteration in original) (quoting DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir.

2005))). Furthermore, “[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.” Irish II, 979 F.3d at 75. On the other hand, “[w]here state actors must act

in a matter of seconds or minutes, a higher level of culpability is required.” Id.

Here, because Officer Dexter had time to reflect and did not have to act in

haste, the Plaintiffs can make out a claim that his conduct shocks the conscience if

they show that he acted with deliberate indifference.22 In order to show that Officer

Dexter acted with deliberate indifference, the Plaintiffs “must, at a bare minimum,

demonstrate that [Officer Dexter] actually knew of a substantial risk of serious harm

to [the tenants] and disregarded that risk.” Coyne v. Cronin, 386 F.3d 280, 288 (1st

Cir. 2004); see also Mackie, 444 F. Supp. 3d at 1108. For reasons I will explain, a

reasonable fact-finder could conclude that this standard was met here.

Pak’s statements to Officer Dexter could support the conclusion that Pak

presented a growing and immediate danger to the tenants. As previously explained,

Pak expressed his belief to Officer Dexter that Officer Dexter had confirmed that Pak,

as a landlord, did not have any rights and that Pak’s tenants owned him. Further,

22 As in Irish II, the Defendants do not argue that a standard higher than deliberate indifference is

Pak’s statements that Officer Dexter would see him in the newspaper, that there

would be a big name tomorrow, and that there was going to be a bloody mess indicate

that Pak intended to act on that belief. Pak also ominously warned Officer Dexter,

“God help you. Looks like we’ll see.” ECF No. 134-1 at 43:7-8.

There is also record support for the conclusion that Officer Dexter disregarded

the risk presented by Pak. Among other things, Officer Dexter failed to (1) inquire

whether Pak had ready access to a firearm (as suggested by Pak’s earlier statements

to the tenants indicating that he had a gun); (2) initiate a mental health intervention

in keeping with the Biddeford Police Department’s deviant behavior policy, General

Order 136-96; or (3) arrest or summons Pak for a criminal violation based on Pak’s

repeated threats to shoot or otherwise harm his tenant or tenants. Further, as

previously explained, Officer Dexter did not inform the tenants of the extent and

immediacy of the actual danger facing them, expressing instead a more neutral

message: “I advised [Pak] he can’t harass you, he can’t threaten you. Whether it was

successful or not I don’t know.” ECF No. 78 at 25, ¶ 48. These facts, when viewed in

the light most favorable to the Plaintiffs, could support a finding that Officer Dexter

acted with deliberate indifference. See Mackie, 444 F. Supp. 3d at 1109-10

(concluding that an officer’s actions in agitating an assailant, observing increasingly

vitriolic comments, and then leaving demonstrated deliberate indifference).

The Defendants raise several arguments in response, but none are persuasive.

First, the Defendants emphasize that Pak told Officer Dexter toward the end of the

conversation that he would keep away from the tenants. The record on that point,

however, is not as straightforward as the Defendants contend. As previously noted,

toward the end of the conversation, Officer Dexter told Pak to keep away from the

tenants. Pak responded, “No, no, no.” ECF No. 134-1 at 43:11. Pak later said, “No,

no. I’m gonna go see them now.” ECF No. 134-1 at 44:22-23. In response to this,

Officer Dexter again told Pak to keep his distance, to which Pak responded, “No, no

you don’t have to worry about that.” ECF No. 78 at 23, ¶ 46. But Pak also remarked

that there was going to be a “bloody mess,” ECF No. 84 at 8, ¶ 19, and he had

previously remarked to his wife that there was something that he did not want to tell

her in front of Officer Dexter. When viewed in the context of the entire interaction,

a shocks-the-conscience finding is not foreclosed by Pak’s single statement to Officer

Dexter suggesting that he would stay away from the tenants.

Next, the Defendants argue that Officer Dexter’s actions do not shock the

conscience because he was justified in viewing the threat to the tenants as

insubstantial in light of all of the circumstances. The Defendants point to a number

of factors which weigh against concluding that Office Dexter should have viewed the

risk to the tenants as substantial, including that (1) Pak was an older man with no

criminal history; (2) Thompson represented that he felt more harassed than

threatened; (3) Pak’s wife Armit, who was known to have calmed tensions between

Pak and the tenants in the past, was present; and (4) Pak and the tenants had

previously argued without Pak resorting to violence.

The circumstances cited by the Defendants are, no doubt, relevant to the

shocks-the-conscience inquiry. See, e.g., Mackie, 444 F. Supp. 3d at 1110 (noting that

a police officer’s awareness that a victim was “terrified” of her neighbor was relevant

to whether he acted with deliberate indifference). But the existence of evidence

weighing in favor of the Defendants’ case is not, without more, a reason to grant

summary judgment for the Defendants. “Summary judgment ‘admit[s] of no room for

credibility determinations, no room for the measured weighing of conflicting evidence

such as the trial process entails . . . .’ If the facts permit more than one reasonable

inference, the court on summary judgment may not adopt the inference least

favorable to the nonmovant.” Casas Off. Machines, Inc. v. Mita Copystar Am., Inc.,

42 F.3d 668, 684 (1st Cir. 1994) (alterations in original) (citation omitted) (quoting

Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987)).

Finally, the Defendants argue that there was no violation of written police

procedure and that this weighs against concluding that Officer Dexter’s behavior was

shocking to the conscience. To the extent that Defendants argue that violations of

police procedure are strictly required for an officer’s conduct to shock the conscience,

they are incorrect. As noted in Irish II, violations of state law and police policy “are,

at the very least, relevant to determining the conscience-shocking nature of the

defendants’ conduct.” 979 F.3d at 75 (emphasis added). And the First Circuit in

Welch again emphasized the relevance of “proper police procedure”:

“[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.” [Irish

II, 979 F.3d] 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. 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 original)).

12 F.4th at 76-77. Contrary to the Defendants’ argument, however, and for reasons

addressed in Part IV.A.2.(c).(iii) of this decision, the Biddeford Police Department’s

deviant conduct policy, General Order 136-96, the policy in place at the time of the

shootings, is relevant to what an appropriate response would have been.23

Because there is evidentiary support in the summary judgment record to show

that Officer Dexter’s conduct shocked the conscience, the Defendants are not entitled

to summary judgment on the shock-the-conscience element of the state-created

danger test. Consequently, the Defendants are not entitled to summary judgment on

the first prong of the qualified immunity test because there is a genuine dispute of

material fact as to whether the tenants’ constitutional rights were violated. I

therefore turn to consider the second prong’s requirement that the unlawfulness of

the challenged conduct was, at the time the conduct was committed, clearly

established.

2. Clearly Established

(a) Legal Standard

As the Supreme Court has explained, the unlawfulness of a public official’s

action is considered “clearly established” at the time of the official’s violative conduct

if “the law was ‘“sufficiently clear” that every “reasonable official would understand

23 As noted above, see supra n.14, I do not address the other policies and procedures cited by the

Plaintiffs. These policies, including Standard Operating Procedure 02-01, speak only to general

functions, see Johnson, 454 F. Supp. 3d at 87-88, and are therefore of limited utility in deciding

that what he is doing”’ is unlawful.” Wesby, 138 S. Ct. at 589 (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). Thus, in determining whether a right is clearly

established, “the salient question . . . is whether the state of the law . . . gave [the

defendants] fair warning that their alleged [conduct] was unconstitutional.” Hope v.

Pelzer, 536 U.S. 730, 741 (2002). “[I]t is important to emphasize that this inquiry

‘must be undertaken in light of the specific context of the case, not as a broad general

proposition.’” Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

There are two primary considerations that go into whether the clearly

established standard has been met. First, the court must inquire “whether the

precedent is ‘clear enough that every reasonable official would interpret it to establish

the particular rule the plaintiff seeks to apply.’” Irish II, 979 F.3d at 76 (quoting

Wesby, 138 S. Ct. at 590). The precedent must be “dictated by ‘controlling authority’

or ‘a robust “consensus of cases of persuasive authority.”’” Wesby, 138 S. Ct. at 589-

90 (quoting al-Kidd, 563 U.S. at 741-42).

Second, the court must ask “whether ‘[t]he rule’s contours [were] so well

defined that it [would be] clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.’” Irish II, 979 F.3d at 76 (first and second alterations

in original) (quoting Wesby, 138 S. Ct. at 590). In other words, the legal principles

must “clearly prohibit the conduct in the particular circumstances before him.”

Wesby, 138 S. Ct. at 590.

Although cases involving similar facts can be helpful, they are not necessary

to a determination that the law is clearly established, particularly when the officer’s

conduct is egregious or otherwise obviously unconstitutional. See Irish II, 979 F.3d

at 76, 78; see also Mlodzinski v. Lewis, 648 F.3d 24, 33 (1st Cir. 2011) (“[T]he Supreme

Court has made clear that officers can ‘be on notice that their conduct violates

established law even in novel factual circumstances.’” (quoting Hope, 536 U.S. at

741)). But although “[t]he existing legal principle need not be derived from a case

‘directly on point,’ . . . precedent must ‘place[] the statutory or constitutional question

beyond debate.’” French v. Merrill, 15 F.4th 116, 126 (1st Cir. 2021) (third alteration

in original) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). “To that end, general

statements of the law may give ‘“fair and clear warning” to officers’ so long as, ‘in the

light of the pre-existing law[,] the unlawfulness [of their conduct is] apparent.’” Id.

at 126-27 (alterations in original) (quoting White, 580 U.S. at 79-80).

“A rule is too general, however, ‘if the unlawfulness of the officer’s conduct

“does not follow immediately from the conclusion that [the rule] was firmly

established.”’” Id. at 127 (quoting Wesby, 138 S. Ct. at 590). Courts must take care,

then, not to “define clearly established law at a high level of generality, since doing

so avoids the crucial question of whether the official acted reasonably in the

particular circumstances that he or she faced.” Wesby, 138 S. Ct. at 590 (quoting

Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)); see also White, 580 U.S. at 79 (“[T]he

clearly established law must be ‘particularized’ to the facts of the case. Otherwise,

‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of

virtually unqualified liability simply by alleging violation of extremely abstract

rights.’” (second and third alterations in original) (citation omitted) (quoting

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987))).

In sum, for a right to be clearly established, “existing law must have placed the

constitutionality of the officer’s conduct ‘beyond debate.’” Wesby, 138 S. Ct. at 589

(quoting al-Kidd, 536 U.S. at 741). “The plaintiff’s burden to demonstrate that the

law was clearly established is thus ‘a heavy burden indeed.’” Est. of Rahim by Rahim

v. Doe, 51 F.4th 402, 410 (1st Cir. 2022) (quoting Lachance v. Town of Charlton, 990

F.3d 14, 20 (1st Cir. 2021)).

(b) The Parties’ Arguments

I begin by addressing two of the primary arguments made by the parties which

I conclude are unpersuasive: (i) the Defendants’ argument that Officer Dexter did

not violate clearly established law because the state-created danger doctrine was not

a viable theory of liability in 2012; and (ii) the Plaintiffs’ argument that the First

Circuit’s Irish II decision is, standing alone, sufficient to resolve the clearly

established inquiry in this case.

(i) The Defendants’ Argument

The Defendants primarily argue that the substantive due process rights

invoked by the Plaintiffs cannot be clearly established in this case because the state-

created danger theory could not have been clearly established as of 2012. Specifically,

the Defendants argue that “[t]he [state-created danger] theory was not adopted as a

viable source of substantive due process rights until 2020 . . . [and t]he incident giving

rise to Plaintiffs[’] claims in this case occurred in 2012.” ECF No. 114 at 7. For

support, the Defendants rely on Irish I, in which the First Circuit observed, “While

this circuit has discussed the possible existence of the state-created danger theory,

we have never found it applicable to any specific set of facts.” 849 F.3d at 526.

The Defendants’ argument is, however, foreclosed by Irish II, which concluded

that the fact that police conduct could give rise to liability under the state-created

danger doctrine was clearly established in July 2015, when the events at issue in that

case occurred—notwithstanding the fact that the First Circuit had not previously

found the doctrine applicable to any specific set of facts. 979 F.3d at 77-78. The Irish

II decision, which was issued in 2020, observed that by 2015, “[t]he widespread

acceptance of the state-created danger theory . . . was sufficient to clearly establish

that a state official may incur a duty to protect a plaintiff where the official creates

or exacerbates a danger to the plaintiff.” Id. at 77.

As the First Circuit noted in Irish II, the stated-created danger doctrine has

developed over the course of “decades.” Id. at 78; see, e.g., Okin v. Vill. of Cornwall-

on-Hudson Police Dep’t, 577 F.3d 415, 428-29 (2d Cir. 2009); Sanford v. Stiles, 456

F.3d 298, 304-05 (3d Cir. 2006). Moreover, the First Circuit observed that its 2005

decision in Rivera v. Rhode Island, 402 F.3d 27, “was a critical warning bell that

officers could be held liable under the state-created danger doctrine when their

affirmative acts enhanced a danger to a witness.” Irish II, 979 F.3d at 78. And the

Irish II court further observed that “[b]y July 2015, this court had discussed the state-

created danger doctrine at least a dozen times, even if it had never found it applicable

to the facts of a specific case.” Id. There is no reason to believe that the fact that the

events of this case occurred three years before the events considered in Irish II

changes this analysis. On the contrary, most of the state-created danger cases

discussed in Irish II, including Rivera, were decided prior to 2012. See id. at 73-74,

77-79.

Accordingly, the Defendants’ argument that the rights at issue here cannot

have been clearly established in 2012 because the state-created danger theory was

not formally adopted by the First Circuit until 2020 is unavailing.

The Defendants also argue that the state-created danger doctrine could not be

clearly established in 2012 because not all circuits had accepted the theory in 2012.

But the defendants in Irish II made this exact same argument, and it was rejected by

the First Circuit. Id. at 78. Thus, this argument is unpersuasive.

(ii) The Plaintiffs’ Argument

Whereas the Defendants overlook key aspects of Irish II, the Plaintiffs read too

much into that decision when they argue that the clearly established prong is

satisfied in this case because the First Circuit concluded in Irish II that the state-

created danger doctrine is clearly established.24

In Irish II, 979 F.3d at 78, the First Circuit concluded that the fact that it had

never formally found the state-created danger doctrine to apply did not foreclose a

determination that the doctrine was clearly established. After discussing comparable

cases, the Irish II court concluded,

These cases gave the defendants notice that they could be held liable for

violating the Due Process Clause if, after receiving a report of criminal

activity, they effectively alerted the suspect that he was under

investigation in a manner that notified the suspect who the reporting

individual was, despite knowing that the suspect was likely to become

violent toward that person. The officers were also on notice that failing

to take steps to mitigate the danger they had created and misleading

24 The Plaintiffs also appear to argue that because the First Circuit in Welch directed me to apply

the Irish II test, there is no need to reach the clearly established prong of the qualified immunity

analysis. To the extent that the Plaintiffs make this argument, I find it unpersuasive. The Welch

opinion specifically said that I could consider the clearly established prong of the qualified immunity

test first. 12 F.4th at 77. Although I elected not to do so, this statement is a clear indication that the

the victim about the level of police protection she had could likewise give

rise to a constitutional violation under the state-created danger

doctrine.

Id. at 79 (citation omitted).

Irish II is undoubtedly a significant development in the First Circuit’s state-

created danger jurisprudence. But it does not follow that the clearly established

inquiry was finally resolved for all subsequent state-created danger cases. The fact

that the overall state-created doctrine was recognized and held to be clearly

established in Irish II is not enough because “[t]he ‘clearly established’ inquiry ‘must

be undertaken in light of the specific context of the case, not as a broad general

proposition.’” Rocket Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 9 (1st Cir. 2013)

(quoting Brosseau, 543 U.S. at 198); see also White, 580 U.S. at 79 (“[T]he clearly

established law must be ‘particularized’ to the facts of the case.” (quoting Anderson,

483 U.S. at 640)). Therefore, even though Irish II concluded that the state-created

danger test was a viable theory of relief, in order to defeat qualified immunity, the

Plaintiffs must also show that a reasonable officer would have known that Officer

Dexter’s specific conduct was unlawful in the circumstances of this case. Like the

Irish II court, then, I must particularize my inquiry and determine whether,

considering the state of the law as of December 29, 2012, a reasonable officer would

have known that agitating Pak, misleading the tenants, and withdrawing without

defusing the situation would have been unlawful for purposes of the state-created

danger doctrine.

(c) Analysis

Having disposed of several of the parties’ primary arguments, I now turn to

whether the Plaintiffs have carried their “heavy burden” to show that Officer Dexter

violated clearly established law. Est. of Rahim, 51 F.4th at 410 (quoting Lachance,

990 F.3d at 20). I conclude that they have not because, with respect to the allegation

that Officer Dexter violated the tenants’ rights by agitating Pak and making the harm

to them more likely, the Plaintiffs have not shown that the precedent was “clear

enough that every reasonable official would interpret it to establish the particular

rule the plaintiff seeks to apply” or that “‘[t]he rule’s contours [were] so well defined

that it [would be] clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.’” Irish II, 979 F.3d at 76 (first and second alterations in

original) (quoting Wesby, 138 S. Ct. at 590). And with respect to the allegation that

Officer Dexter violated the tenants’ rights by misleading the tenants about the extent

of the danger posed by Pak, the Plaintiffs have not shown that “‘[t]he rule’s contours

[were] so well defined that it [would be] clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.’” Id. (first and second alterations in

original) (quoting Wesby, 138 S. Ct. at 590). I reach these conclusions based on

several factors.

First, there was no case law in 2012 containing facts that could have put a

reasonable officer on notice that Officer Dexter’s conduct was unlawful. Second, this

is not a circumstance in which Officer Dexter’s conduct was so obviously

unconstitutional that it clearly violated the general principles of the state-created

danger doctrine despite the absence of comparable case law. Third, although General

Order 139-96, the City of Biddeford’s deviant conduct policy, is relevant to the clearly

established inquiry, the General Order was insufficient to give Officer Dexter fair

warning that he was violating the tenants’ constitutional rights by inadvertently

agitating Pak and then failing to protect the tenants.

(i) Whether the Plaintiffs have Pointed to Factually

Similar Precedents

Although, as discussed below, factually similar cases are not required for a

right to be clearly established, “[p]recedents involving ‘similar facts’ help ‘provide an

officer notice’ that certain conduct is unlawful.” Fraser v. Mass. Bay Transp. Auth.,

544 F. Supp. 3d 148, 159 (D. Mass. 2021) (quoting Kisela v. Hughes, --- U.S. ---, 138

S. Ct. 1148, 1153 (2018)); see also Hope, 536 U.S. at 741 (“Although earlier cases

involving ‘fundamentally similar’ facts can provide especially strong support for a

conclusion that the law is clearly established, they are not necessary to such a finding.

The same is true of cases with ‘materially similar’ facts.”). Here, there are no

factually similar cases.

The particular circumstances of the present case bear repeating. A reasonable

jury could conclude that Officer Dexter violated the tenants’ substantive due process

rights by enhancing the danger that Pak posed to the tenants by Officer Dexter’s

inadvertent agitation of Pak and his subsequent misleading of the tenants about the

extent of the danger that they could potentially be facing. The question, then, is

whether the state of the law was sufficiently clear that a reasonable officer would

have known that this conduct could violate the tenants’ rights under the state-created

danger doctrine.

The Plaintiffs have not pointed to any contemporary state-created danger cases

that found liability based on a police officer speaking to a third party and

inadvertently agitating that third party, who then commits violence. Although the

Plaintiffs cite to McClammy, 2019 WL 4674462, and Mackie, 444 F. Supp. 3d 1094,

which arguably contain comparable facts, these cases post-date the events of

December 29, 2012. Consequently, they “could not have given fair notice to [Officer

Dexter] and are of no use in the clearly established inquiry.”25 Brosseau, 543 U.S. at

200 n.4.

Most of the state-created danger cases cited by the Plaintiffs, which contain

remarkably disparate fact patterns, have little in common with the actions of Officer

Dexter because they do not involve an increase of danger through an officer’s

agitation of a third party.26 Therefore, although these cases could give a reasonable

officer fair warning that plaintiffs generally have a substantive due process right not

to have officers take affirmative acts that increase the risk of third-party harm, they

do not contain factual circumstances that could have put Officer Dexter on notice that

his specific conduct violated that right. See Wesby, 138 S. Ct. at 590 (“A rule is too

25 For the same reason, Martinez v. City of Clovis, 943 F.3d 1260, also cited by the Plaintiffs, does

not bear on the clearly established inquiry.

26 See, e.g., Rivera, 402 F.3d at 38 (rejecting a state-created danger claim based on the assertion that

officers had rendered a plaintiff more vulnerable to harm by giving her a subpoena to testify and falsely

promising police protection); Bright v. Westmoreland Cnty., 443 F.3d 276, 285 (3d Cir. 2006) (rejecting

a state-created danger claim based on the assertion that officers had rendered a plaintiff more

vulnerable to harm by, among other things, delaying the arrest of a third party who had reason to

target the plaintiff’s family); Freeman v. Ferguson, 911 F.2d 52, 54 (8th Cir. 1990) (finding state-

created danger when a police chief prevented police officers from responding to abusive conduct

committed by a friend of the chief); Pinder, 54 F.3d at 1175-76 (rejecting a state-created danger claim

when officers had falsely promised to arrest a dangerous assailant and to provide protection); Wood,

851 F.2d at 1219 (concluding that there was an issue of fact as to state-created danger when officers

general if the unlawfulness of the officer’s conduct ‘does not follow immediately from

the conclusion that [the rule] was firmly established.’” (alteration in original) (quoting

Anderson, 483 U.S. at 641)). And, as discussed below, Officer Dexter’s conduct was

not so clearly unconstitutional that it was obviously precluded by the general state-

created doctrine notwithstanding the lack of cases involving similar facts.

Several of the cases cited by the Plaintiffs require a more extended discussion

because it is a closer question as to whether they could have provided fair warning to

Officer Dexter that his specific conduct was unlawful. Specifically, the Plaintiffs

point to Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415;

Kennedy v. City of Ridgefield, 439 F.3d 1055; and Monfils v. Taylor, 165 F.3d 511 (7th

Cir. 1998).

In Okin, the Second Circuit found state-created danger liability when police

officers “implicitly but affirmatively encouraged [a third party’s] domestic violence.”

577 F.3d at 430. Specifically, the officers who responded to a domestic violence

complaint, some of whom may have known the abuser, discussed football with the

abuser, expressed contempt for the victim, and declined to arrest the abuser despite

his open admission that he could not help but abuse the victim. Id. at 430.

Okin, however, did not involve the affirmative acts at issue here: the

unintentional agitation of a third party and subsequent misleading of the victims

regarding the risk of danger. Instead, liability in Okin was based on the fact that the

police enabled and emboldened the abuser by sending a message that he would not

be punished for his criminal conduct. Here, Officer Dexter repeatedly told Pak that

he could not and should not continue to make threats, and he encouraged Pak to

pursue his claims in civil court. Moreover, the events at issue in this case took place

over the course of a relatively brief encounter, while the events in Okin involved

multiple instances over many months by which the officers enabled the abuser and

ignored the victim. Okin is too factually different to have provided Officer Dexter

notice that he could incur constitutional liability for agitating Pak and then

misleading the tenants.

Similarly, Plaintiffs’ argument that Kennedy v. City of Ridgefield and Monfils

v. Taylor could have provided Officer Dexter with the requisite notice is unpersuasive.

Like Irish II, both of these cases involve situations in which officers disclosed

incendiary information to a third party that put the plaintiff at risk notwithstanding

the fact that the third party was known to be violent. In Kennedy, an officer disclosed

to the plaintiff’s neighbor that the plaintiff had accused him of child molestation—

despite the officer’s promise to notify the plaintiff before doing so and despite the

plaintiff’s warning that the neighbor was violent. 439 F.3d at 1057-58. The neighbor

then shot the plaintiff and murdered her husband. Id. at 1058. Monfils was similar:

the plaintiff called the police and told them that his coworker was going to steal from

their place of employment. 165 F.3d at 513. Despite the plaintiff warning them that

the coworker was violent and despite the police having promised not to release a tape

of the phone call, the officers released to the coworker a copy of the recorded phone

call that the plaintiff had made about the theft. Id. at 513-15. The coworker

recognized the plaintiff’s voice and subsequently murdered him. Id. at 515.

The Irish II court concluded that these cases were sufficient to put the officers

in that case on notice that “they could be held liable for violating the Due Process

Clause if, after receiving a report of criminal activity, they effectively alerted the

suspect that he was under investigation in a manner that notified the suspect who

the reporting individual was, despite knowing that the suspect was likely to become

violent toward that person.” 979 F.3d at 79. But these cases are insufficient to put

Officer Dexter on notice that it was unconstitutional for him to unintentionally

agitate Pak by repeatedly telling him that the police could not help to resolve his

disputes with the tenants. Although disclosing incendiary information to a third

party might—possibly—be described as “agitating” that third party and making harm

more likely, the lessons that can be drawn from Kennedy and Monfils did not clearly

apply in the complex situation facing Officer Dexter.

Additionally, in Irish II, Monfils and Kennedy were deemed to have put police

officers on notice that “failing to take steps to mitigate the danger they had created

and misleading the victim about the level of police protection she had could likewise

give rise to a constitutional violation.” Id. Thus, Kennedy and Monfils arguably could

have put Officer Dexter on notice of the rule that he could not mislead the tenants

about the danger they were in once he had unconstitutionally enhanced the danger

to them.27 See id.; Kennedy, 439 F.3d at 1063. But unlike in those cases, Officer

Dexter did not make false promises—instead, he left out details and arguably

minimized the danger posed to the tenants by Pak. Accordingly, these cases are

insufficient to put Officer Dexter on notice that his specific conduct in misleading the

27 But see Rivera, 402 F.3d at 37-38 (rejecting an argument that there could be state-created danger

liability based on broken promises of police protection); Bright, 443 F.3d at 284 (rejecting an argument

that there could be state-created danger liability based on broken promises that a suspect would be

tenants about the extent of the danger facing them was unconstitutional in the

circumstances confronting him.

Thus, unlike in Irish II, 979 F.3d at 79, there are not cases containing

comparable fact patterns that could have put a reasonable officer on notice that

Officer Dexter’s conduct violated the tenants’ rights.

(ii) Whether the Right Was Clearly Established Despite

the Absence of Factually Similar Cases

Even in the absence of factually similar law, it is possible that the general

principles of the state-created danger doctrine were sufficient to put a reasonable

officer on notice that Officer Dexter’s specific conduct was unlawful. Because there

are no comparable precedents, whether this standard has been met here is the key

question to be answered to determine whether the law was clearly established.

“[C]ases involving materially similar facts are not necessary to a finding that

the law was clearly established,” and “‘[o]fficials can still be on notice that their

conduct violates established law even in novel factual circumstances.’” Irish II, 979

F.3d at 76 (quoting Hope, 536 U.S. at 741). This is because “[i]n some cases, ‘a general

constitutional rule already identified in the decisional law may apply with obvious

clarity to the specific conduct in question.’” McKenney v. Mangino, 873 F.3d 75, 83

(1st Cir. 2017) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)); see also

Irish II, 979 F.3d at 78 (“[A] general proposition of law may clearly establish the

violative nature of a defendant’s actions, especially when the violation is egregious.”);

Brosseau, 543 U.S. at 199 (“Of course, in an obvious case, [general] standards can

‘clearly establish’ the answer, even without a body of relevant case law.”).

Accordingly, “general statements of the law may give ‘“fair and clear warning” to

officers’ so long as, ‘in the light of the pre-existing law[,] the unlawfulness [of their

conduct is] apparent.’” French, 15 F.4th at 126-27 (alterations in original) (quoting

White, 580 U.S. at 79-80).

The reasoning behind this principle was made clear in Browder v. City of

Albuquerque, 787 F.3d 1076, 1082-83 (10th Cir. 2015), a Tenth Circuit decision that

was cited in Irish II, 979 F.3d at 76. In Browder, the Tenth Circuit explained:

In deciding the “clearly established law” question this court employs a

“sliding scale” under which “the more obviously egregious the conduct in

light of prevailing constitutional principles, the less specificity is

required from prior case law to clearly establish the violation.” Shroff

v. Spellman, 604 F.3d 1179, 1189-90 (10th Cir. 2010) (alteration

omitted) (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir.

2008)) (internal quotation marks omitted). After all, some things are so

obviously unlawful that they don’t require detailed explanation and

sometimes the most obviously unlawful things happen so rarely that a

case on point is itself an unusual thing. Indeed, it would be remarkable

if the most obviously unconstitutional conduct should be the most

immune from liability only because it is so flagrantly unlawful that few

dare its attempt.

787 F.3d at 1082-83.

But this exception is “narrow,” and cases in which a general constitutional rule

will suffice to clearly establish the law are rare. See Belsito Commc’ns, Inc. v. Decker,

845 F.3d 13, 26 (1st Cir. 2016) (“Of course, . . . ‘a general constitutional rule already

identified in the decisional law may apply with obvious clarity to the specific conduct

in question, even though the very action in question has not been held unlawful.’ But

this is a narrow exception . . . .” (citation omitted) (quoting Lanier, 520 U.S. at 271));

see also Wesby, 138 S. Ct. at 590 (“Of course, there can be the rare ‘obvious case,’

where the unlawfulness of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar circumstances.”).28

The question, then, is whether, notwithstanding the fact that there were no

cases involving comparable facts, it would have been apparent to a reasonable officer

that Officer Dexter’s conduct was unlawful in light of the general principle of the

state-created doctrine: that it is unconstitutional for officers to affirmatively enhance

or create a danger to plaintiffs and then fail to ameliorate that danger.

To begin, I note that the Plaintiffs do not explain in any detail why it would

have been apparent to a reasonable officer that the state-created danger doctrine

applied in the circumstances presented here in the absence of any similar case law.

As in Belsito Communications, Inc. v. Decker, the Plaintiffs have “present[ed] nothing

to persuade [me] that [Officer Dexter’s] actions . . . constitute conduct so egregious

that a reasonable official must have known it was unconstitutional.” 845 F.3d at 28.

The Plaintiffs have primarily argued, without elaboration, that the general principles

drawn from the wide variety of contemporary state-created danger cases were enough

to put Officer Dexter on notice that his conduct was unlawful. For several reasons, I

do not agree.

Considering the specific circumstances of the case, Officer Dexter’s conduct

was not so egregious that it is objectively apparent that it was unconstitutional.

28 Specificity is particularly important in the Fourth Amendment context, Wesby, 138 S. Ct. at 590,

and it is often in this context that courts discuss the rarity of “obvious” cases in which factual similar

cases are unnecessary, see id.; Brosseau, 543 U.S. at 199; White, 580 U.S. at 80; Belsito Commc’ns, Inc.,

845 F.3d at 26. But I do not read the case law as implying that this principle is unique to the Fourth

Amendment context, in part because courts have discussed the same principles in other circumstances,

see Belsito Commc’ns, Inc., 845 F.3d at 28 (discussing the First Amendment); Hope, 536 U.S. at 741

(discussing the Eighth Amendment); Irish II, 979 F.3d at 78 (discussing general principles in the state-

Here, a jury could conclude that Officer Dexter acted in a manner that goes beyond

negligence and shocks the conscience. But for a right to be clearly established despite

the absence of cases with similar facts, something more is required: the actions must

be so egregious that they would be obviously unlawful in light of general legal

principles. As an extreme example, the Supreme Court noted in United States v.

Lanier that qualified immunity would not protect welfare officials who sold foster

children into slavery even though there had never been a case involving those facts.

520 U.S. at 271. That is not to say, of course, that an officer’s actions need to be that

blatantly unconstitutional in order for general principles to provide sufficient notice.

Belsito Commc’ns, Inc., 845 F.3d at 26 n.11. But the circumstances in which general

principles are enough to put the constitutional issue beyond debate in the absence of

comparable case law are still narrow. See id. at 26.

Comparing other cases with Officer Dexter’s conduct here makes it clear that

this standard is not met. For example, in the state-created danger context, the

District Court in Cohen v. City of Portland concluded that, at the pleading stage, the

general principles of the state-created danger doctrine as recognized in Irish II were

sufficient to put any reasonable officer on notice that it was unlawful for officers to

chase a plaintiff into freezing water and then make threats about what would happen

when he came out, resulting in the plaintiff’s drowning death. No. 2:21-cv-00267-NT,

2022 WL 1406204, at *8-9 (D. Me. May 4, 2022). In Okin, the Second Circuit

concluded that factually similar circumstances were not necessary for officers to

violate clearly established rights when they, over repeated interactions, discussed

football with a person accused of domestic abuse and declined to arrest the abuser or

even file a report despite the abuser admitting that he abused the victim.29 577 F.3d

at 436-37. And in Kennedy, the Ninth Circuit concluded that no factually similar

cases were necessary because no reasonable officer could have believed that the

officer’s actions in that case—namely, promising a plaintiff that they would not notify

a violent neighbor that the plaintiff had accused him of child molestation without

telling the plaintiff, subsequently notifying the neighbor, and then falsely promising

police protection—would have been constitutional under the state-created danger

doctrine. 439 F.3d at 1066-67.

Although Officer Dexter’s conduct here is arguably sufficiently irresponsible to

be conscience shocking, it was not as egregiously unlawful as the officers’ conduct in

these other cases. In the context of a conversation that lasted approximately thirteen

minutes, it is plain that Officer Dexter sought to deescalate the situation by

encouraging Pak to seek civil remedies and discouraging Pak from threatening

violence. Officer Dexter’s failure to take more affirmative steps to prevent violence

from occurring in his absence is as least partially explained by his knowledge that,

according to the tenants, Pak was prone to fits of rage, but had not acted out violently

in the past. It is also possible that Officer Dexter sought to deescalate the dispute by

providing the tenants only a vague account of his time speaking to the Paks. Unlike

the officers in Cohen, Kennedy, and Okin, Officer Dexter did not take intentional acts

that obviously put the tenants at increased risk. Although Officer Dexter’s efforts to

29 Even in Okin, that there were factually similar cases appears to have been an important

consideration to the conclusion reached by the court. See 577 F.3d at 434-35 (discussing Hemphill v.

Schott, 141 F.3d 412, 419 (2d Cir. 1998), and Dwares v. City of New York, 985 F.2 94, 99 (2d Cir. 1993),

abrogated by Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163 (1993),

deescalate the situation proved to be ineffective and were accompanied by Officer

Dexter’s apparent failure to understand the increasingly perilous nature of the

situation developing before him, those efforts were neither callous to the safety of the

tenants nor dismissive of their reports regarding Pak. Further, Officer Dexter may

have misled the tenants regarding the extent of the danger that they faced from Pak,

but not to a degree which was so egregious that the “general statements of the law”

of state-created danger made it “apparent” that Officer Dexter’s conduct was

unlawful. French, 15 F.4th at 126-27 (quoting White, 580 U.S. at 79-80). Thus,

although hindsight leads me to conclude that a jury could find that Officer Dexter

violated the tenants’ constitutional rights, his failed efforts to deescalate the situation

did not rise to the level necessary for the general principles of the state-created

danger doctrine to apply with “obvious clarity” to the circumstances facing him.

McKenney, 875 F.3d at 83 (quoting Lanier, 520 U.S. at 271).

In reaching the preceding conclusion, I am also guided by cases from outside

the state-created danger context involving egregious conduct. In Jennings v. Jones,

for example, officers increased the force they were using on a restrained plaintiff who

had stopped resisting. 499 F.3d 2, 5 (1st Cir. 2007). Despite the plaintiff’s

protestations, the force continued, and a police officer broke the plaintiff’s ankle. Id.

The First Circuit concluded that in these circumstances, the officer’s “conduct was

such an obvious violation of the Fourth Amendment’s general prohibition on

unreasonable force that a reasonable officer would not have required prior case law

on point to be on notice that his conduct was unlawful.” Id. at 17. In Hope v. Pelzer,

the Supreme Court suggested that chaining a prisoner to hitching post for hours,

denying him regular water, and leaving him sunburned was an “obvious” violation of

the Eighth Amendment even if there had been no relevant case law. 536 U.S. at 737,

741. And in Taylor v. Riojas, a case in which officers housed a prisoner in a cell that

was overflowing with feces, the Supreme Court concluded that comparable

precedents were unnecessary because “no reasonable correctional officer could have

concluded that, under the extreme circumstances of this case, it was constitutionally

permissible to house [the plaintiff] in such deplorably unsanitary conditions for such

an extended period of time.” 141 S. Ct. 52, 53 (2020) (per curiam). Finally, in

McIntyre v. United States, the District of Massachusetts concluded that no

comparable case law was necessary to conclude that officers violated clearly

established rights when an officer aided and abetted the murder of a plaintiff by a

private citizen. 336 F. Supp. 2d 87, 123-25 (D. Mass. 2004).

This case is different in kind. Officer Dexter’s actions may have been a serious

dereliction of duty. But in light of the circumstances facing him, they were not so

egregiously unlawful that it would have been clear to any reasonable officer that they

were proscribed by the general principles of the state-created danger doctrine even

without comparable case law.

Additionally, I note that this is not a case in which the general principle of law

is readily applied by officers. In some cases, the fact that general principles of law

are readily applied makes it less difficult for plaintiffs to show that any reasonable

officer would have known that the challenged conduct was unconstitutional. For

example, in Morse v. Cloutier, a case involving a warrantless entry to a home, the

First Circuit concluded that factual similarity was unnecessary because general

Fourth Amendment law provided “a firm line and a bright line” as to the

unauthorized entry to the home by police. 869 F.3d 16, 29 (1st Cir. 2017). Thus, the

court concluded, general Fourth Amendment principles applied with “obvious clarity”

to the circumstances of the case, in which officers forced their way into the plaintiffs’

home. Id. (quoting Lanier, 520 U.S. at 271). In contrast, as applied to the

circumstances presented here, the state-created danger doctrine does not offer firm

and bright lines—instead, it is highly fact-specific.

For the preceding reasons, in the absence of comparable case law, I conclude

that the general principles of the state-created danger test are not enough to put it

“beyond debate” that Officer Dexter violated the tenants’ rights. Est. of Rahim, 51

F.4th at 413 (quoting Kisela, 138 S. Ct. at 1152).

(iii) Whether General Order 136-96 Should Have Put

Officer Dexter On Notice

As the Irish II court explained, “A defendant’s adherence to proper police

procedure bears on all prongs of the qualified immunity analysis,” including whether

a right is clearly established. 979 F.3d at 77. “[W]hen an officer disregards police

procedure, it bolsters the plaintiff’s argument . . . that ‘a reasonable officer in the

[officer’s] circumstances would have believed that his conduct violated the

Constitution.” Id. (third alteration in original) (quoting Stamps v. Town of

Framingham, 813 F.3d 27, 32 n.4 (1st Cir. 2016)). Thus, I turn to consider whether

there were police procedures in place at the time of the shootings that could have put

Officer Dexter on notice that his actions were unconstitutional. As noted above, most

of the procedures pointed to by the Plaintiffs are too general to provide the necessary

guidance or were otherwise not applicable to the situation confronting Officer Dexter.

Indeed, the Plaintiffs give those procedures no more than passing mention.

Consequently, I focus on General Order 136-96, the Biddeford Police Department’s

deviant conduct policy.

As a preliminary note, the Plaintiffs have not developed the argument that

General Order 136-96 is relevant to the clearly established inquiry. Instead, they

primarily argue that General Order 136-96 helps to illustrate that Officer Dexter

acted with deliberate indifference and make only passing reference to General Order

136-96’s relevance to the clearly established inquiry. But even if the Plaintiffs had

fully developed this argument, General Order 136-96 does not alter the conclusion

that it was not “beyond debate” that Officer Dexter’s conduct was unconstitutional.

General Order 136-96 has a broad purpose: “To describe deviant behavior and

circumstances under which police personnel will make an arrest or protective

detention in order to assist said person or protect the general public.” ECF No. 69 at

411. The General Order further notes that “[i]t shall be the policy of the Biddeford

Police Department to assist persons who are exhibiting symptoms of deviant behavior

and appear to represent an imminent danger to themselves or to someone else.” ECF

No. 69 at 411. The General Order defines “deviant behavior” as “[b]ehavior which

creates a condition, either physical or psychological in nature, which presents a threat

of imminent and substantial harm to that person or to other persons.” ECF No. 69

at 412. The order further defines “imminent and substantial physical harm” as “any

condition which creates a reasonably foreseeable risk of harm to someone if not

prevented or precluded. The terms (imminent and substantial) take into

consideration the immediacy of an event occurring, the seriousness of the event[,] and

the likelihood the event will take place.” ECF No. 69 at 412. Additionally, the

General Order provides that when an officer encounters “deviant persons who

represent an imminent and substantial harm to themselves or someone else, the

officer(s) shall be empowered, based upon probable cause, to take that person into

protective custody” and that “[o]fficers who encounter situations of deviant behavior

shall exercise their discretion.” ECF No. 69 at 412. Although the General Order

provides that variances from the terms of the order must be justified, it also provides

that “while the provisions of this procedure are to be utilized whenever possible, the

employee may be called upon to exercise common sense, judgment, and ingenuity,

based upon his/her training, education, and/or experience.” ECF No. 69-5 at 413.

Viewing the facts in the light most favorable to the Plaintiffs, Pak’s behavior

was arguably deviant and fell within the terms of the policy. In keeping with the

general aims of the policy, Officer Dexter could have taken Pak into custody so as to

protect him and the tenants. Thus, this General Order is relevant to both the shock-

the-conscience inquiry and the clearly established inquiry. But even though the

discretion to take a deviant person into custody recognized by the General Order

“bolsters” the Plaintiffs’ position, Irish II, 979 F.3d at 77, that discretion is sufficiently

general so as not to render it beyond debate that Officer Dexter’s failure to take Pak

into custody was unconstitutional. Because the General Order directs officers to use

their discretion to effectuate the aims of the policy, Officer Dexter did not violate any

bright lines established by the policy. See Stamps, 813 F.3d at 39-40 (concluding that

in light of case law, widely accepted norms of firearm safety, and police procedures, a

reasonable officer would have understood that pointing a loaded assault rifle at an

innocent, unarmed, person would have violated the Constitution); see also Irish I, 849

F.3d at 527 (discussing the importance of the violation of police procedures in

Marrero-Rodríguez v. Municipality of San Juan, 677 F.3d 497, 500-02 (1st Cir. 2012)),

in which a police officer shot a fellow officer during a training exercise while

flagrantly violating police procedures, including rules that no firearms were to be

used during the training session and that firearms must be discharged before officers

enter the training area). Thus, although the policy established by the General Order

is supportive of the Plaintiffs’ claims, on balance that policy does not alter the

conclusion that the Plaintiffs have failed to show that any reasonable officer would

have known that Officer Dexter’s conduct was unconstitutional in the situation before

him.

3. Conclusion as to the Section 1983 Claim Against Officer Dexter

What happened to Susan Johnson, Derek Thompson, and Alivia Welch is

undeniably tragic, and it is abundantly clear that Officer Dexter mishandled the

situation in front of him. But although a jury could conclude that Officer Dexter

violated the tenants’ substantive due process rights under the state-created danger

doctrine, the state of the law in 2012 would not have given Officer Dexter fair warning

that his conduct was unconstitutional. There were no factually similar cases putting

him on notice that he could be violating the tenants’ rights by agitating Pak and

making the harm to them more likely. Nor do the general principles of the state-

created danger doctrine suffice to clearly establish the law because it would not have

been apparent to a reasonable officer that those principles applied to proscribe Officer

Dexter’s conduct in that specific situation. I therefore conclude that, with respect to

Officer Dexter’s agitation of Pak, the precedent was not “clear enough that every

reasonable official would interpret it to establish the particular rule the plaintiff

seeks to apply,” nor were the contours of the rule “so well defined that it [would be]

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Irish II, 979 F.3d at 76 (quoting Wesby, 138 S. Ct. at 590). Additionally,

although there is an argument that the existing case law established the rule that

Officer Dexter could not increase the danger to the tenants by misleading them, see

Kennedy, 439 F.3d at 1063, the Plaintiffs have again not shown that the contours of

that rule were “so well defined that it [would be] clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Irish II, 979 F.3d at 76 (quoting

Wesby, 138 S. Ct. at 590).

Because qualified immunity protects Officer Dexter, the Defendants are

entitled to summary judgment on the section 1983 claim against Officer Dexter in his

individual capacity. See Swartz v. Sylvester, 53 F.4th 693, 698 (1st Cir. 2022) (“[A]n

[official] may be entitled to immunity based on either prong [of the qualified

immunity test].” (first and second alterations in original) (quoting Est. of Rahim, 51

F.4th at 410)).

B. The Plaintiffs’ Claims Against the City of Biddeford, Chief Beaupre,

and Officer Dexter in his Official Capacity

The Defendants also seek summary judgment as to the Plaintiffs’ claims

against the City of Biddeford and Chief Beaupre, as well as the claims brought

against Officer Dexter in his official capacity.

1. City of Biddeford

The Plaintiffs assert that the City of Biddeford can be held liable for the

constitutional violations committed by Officer Dexter based on the Supreme Court’s

decision in Monell, 436 U.S. 658.30 In Monell, the Supreme Court “held that a

municipality could be liable in certain cases when its agents and employees

committed constitutional violations, but not under a theory of respondeat superior.”

Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 25 (1st Cir. 2005).

Municipal liability under Monell has “two basic elements: first, that the plaintiff’s

harm was caused by a constitutional violation, and second, that the [municipal

defendants] be responsible for that violation.” Id. at 25-26; Collins v. City of Harker

Heights, 503 U.S. 115, 122 (1992) (emphasizing “the separate character of the inquiry

into the question of municipal responsibility and the question whether a

constitutional violation occurred”). The fact that a police officer is protected by

qualified immunity for a constitutional violation that they committed does not

preclude Monell liability for the municipality that employs the police officer. See

Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir. 1997) (“Municipal liability under

section 1983 is not vicarious and municipalities do not enjoy qualified immunity.

Consequently, it is not impossible for a municipality to be held liable for the actions

of lower-level officers who are themselves entitled to qualified immunity.” (citations

omitted)).

30 Although the Defendants have argued that the Plaintiffs waived their Monell claims by not

mentioning them in their response to the Defendants’ Renewed Motion for Summary Judgment, I elect

not to treat the claims as waived based in part on my colloquy with Plaintiffs’ counsel at the October

As to the first element, if there is no underlying constitutional violation, there

can be no municipal liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986) (per curiam) (“[N]either [Monell] nor any other of our cases authorizes the

award of damages against a municipal corporation based on the actions of one of its

officers when in fact . . . the officer inflicted no constitutional harm.”); Evans v. Avery,

100 F.3d 1033, 1040 (1st Cir. 1996) (“[W]e follow Heller’s clear rule and hold that the

City cannot be held liable absent a constitutional violation by its officers.”); see also

Young, 404 F.3d at 26. As I described above, a jury could conclude that Officer Dexter

violated the Plaintiffs’ constitutional rights, so this element is satisfied. Municipal

liability, then, depends on the second Monell factor: whether the Plaintiffs have

shown that the City of Biddeford can be held responsible for Officer Dexter’s

constitutional violation.

A municipality is not responsible for the torts of its agents and employees

based on respondeat superior. Young, 404 F.3d at 25. “Instead, it is only when the

governmental employees’ ‘execution of a government’s policy or custom . . . inflicts the

injury’ and is the ‘moving force’ behind the constitutional violation that a

municipality can be held liable.” Id. (alteration in original) (citing Monell, 436 U.S.

at 694). “In limited circumstances, a local government’s decision not to train certain

employees about their legal duty to avoid violating citizens’ rights may rise to the

level of an official government policy for purposes of § 1983” if “deliberate

indifference” by the municipality is shown. Connick v. Thompson, 563 U.S. 51, 61

(2011).

“A pattern of similar constitutional violations by untrained employees is

‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of [a] failure

to train” claim. Id. at 62. However, “‘in a narrow range of circumstances,’ a pattern

of similar violations might not be necessary to show deliberate indifference,” and a

single incident can suffice. Id. at 63 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v.

Brown, 520 U.S. 397, 409 (1997)). Such single-incident liability can occur only when

“the need for more or different training is so obvious and the inadequacy [is] so likely

to result in the violation of constitutional rights.” Hill v. Walsh, 884 F.3d 16, 24 (1st

Cir. 2018) (alteration in original) (quoting City of Canton v. Harris, 489 U.S. 378, 390

(1989)); see also Sadulsky v. Town of Winslow, No. 1:14-cv-01-GZS, 2015 WL 5542521,

at *9 (D. Me. Sept. 17, 2015) (“A single constitutional violation supports a claim for

failure to train only where the violation of constitutional rights is a ‘highly predictable

consequence’ of that failure.” (citing Connick, 563 U.S. at 64)).

Here, the Plaintiffs have not identified any facts, disputed or not, that would

show that Officer Dexter’s actions were consistent with a pattern of similar

constitutional violations by other municipal employees. At oral argument, the

Plaintiffs acknowledged this weakness in their case, arguing instead that Officer

Dexter’s conduct was, standing alone, sufficiently egregious to permit the Court to

infer deliberate indifference based on the single incident at issue here.

The Plaintiffs’ argument is unavailing. Despite the tragic circumstances of

this case, it is not “obvious” that Officer Dexter’s conduct was so egregious that it

resulted from a lack of training or that a violation of constitutional rights was a highly

predictable consequence of whatever training he had received. See Hill, 884 F.3d at

24; Sadulsky, 2015 WL 5542521, at *9. This conclusion accords with the rule that

the Court “must adhere to a ‘stringent standard of fault,’ lest municipal liability

under § 1983 collapse into respondeat superior.” Connick, 563 U.S. at 70 (quoting

Bryan Cnty., 520 U.S. at 410).

Accordingly, the Plaintiffs have failed to show that there is a material dispute

of fact as to whether the City of Biddeford can be held liable under the Monell

doctrine. The Defendants are entitled to summary judgment on this issue.

2. Chief of Police

The Plaintiffs bring claims against Chief Roger P. Beaupre both in his

individual and official capacities.

With respect to the official-capacity claim against Chief Beaupre, the

Defendants are entitled to summary judgment. “[O]fficial-capacity suits generally

represent only another way of pleading an action against an entity of which an officer

is an agent.” Brandon v. Holt, 469 U.S. 464, 472 n.21 (1985) (quoting Monell, 436

U.S. at 690 n.55). As explained above, the City of Biddeford, the entity of which Chief

Beaupre is an agent, cannot be held liable under the Monell doctrine. Consequently,

Chief Beaupre cannot be held liable in his official capacity. See Wood v. Hancock

Cnty. Sherriff’s Dep’t, 354 F.3d 57, 58 n.1 (1st Cir. 2003) (concluding that the liability

imposed on county officials acting in their official capacities is “indistinguishable from

the county’s” liability).

As to the claims brought against Chief Beaupre in his individual capacity, I

conclude that I need not reach those claims for two reasons. First, in Welch, the First

Circuit remanded only the Monell claims against Chief Beaupre and not the claims

brought against him in his individual capacity. See 12 F.4th at 78 (“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

remand for further consideration in light of this opinion and Irish II.”). Second, I

conclude that the Plaintiffs have waived their individual capacity claims against

Chief Beaupre by failing to assert them in their written or oral submissions since the

remand.

Consequently, Chief Beaupre is entitled to summary judgment on both claims

brought against him.

3. Official Capacity Claims Against Officer Dexter

The First Circuit also remanded the claims that the Plaintiffs brought against

Officer Dexter in his official capacity. Id. at 77. The Defendants are entitled to

summary judgment on these claims because, as explained above, a Monell claim

cannot be maintained against the City of Biddeford, and Officer Dexter’s official-

capacity liability is indistinguishable from the City’s liability. See Wood, 354 F.3d at

58 n.1.

C. Welch’s Claim Under the Maine Civil Rights Act

Finally, I address Welch’s claim, 31 brought under the Maine Civil Rights Act,

5 M.R.S.A. § 4682(1-A), that the Defendants violated her rights under the United

States Constitution and the Maine Constitution.32

31 Johnson does not assert any claims under the Maine Civil Rights Act.

32 The First Circuit has noted that “[t]he disposition of a 42 U.S.C. § 1983 claim also controls a claim

under the [Maine Civil Rights Act].” Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (citing Dimmitt

Section 4682(1-A) provides:

Whenever any person, whether or not acting under color of law,

intentionally interferes or attempts to intentionally interfere by physical

force or violence against a person, damage or destruction of property or

trespass on property or by the threat of [these actions] with the exercise

or enjoyment by any other person of rights secured by the United States

Constitution or the laws of the United States or of rights secured by the

Constitution of Maine or laws of the State . . . the person whose exercise

or enjoyment of these rights has been interfered with, or attempted to

be interfered with, may initiate and prosecute in that person’s own name

and on that person’s own behalf a civil action for legal or equitable relief.

(Emphasis added). Here, the undisputed material facts show that Officer Dexter did

not “intentionally interfere[] or attempt[] to intentionally interfere,” id., with Welch’s

rights by the use or threat of violence, damage or destruction of property, or trespass.

Instead, it is undisputed that it was Pak’s use of violence that caused the deprivation

of rights. As such, Welch cannot maintain a Maine Civil Rights Act claim against

Officer Dexter. See Clifford v. MaineGeneral Med. Ctr., 2014 ME 60, ¶ 74 n.22, 91

A.3d 567 (“To prevail on the [Maine Civil Rights Act] claims, Clifford must prove,

among other things, that Kemmerer used or threatened physical force or violence

when he deprived her of a constitutional or statutory right.”); Bagley v. Raymond Sch.

Dep’t, 1999 ME 60, ¶ 10 n.5, 728 A.2d 127 (“The Maine Civil Rights Act is inapplicable

to the claims presented. It applies when there has been the use or threat of ‘physical

force or violence’ in an effort to interfere with the exercise of a constitutional right.

No claim of violence, real or threatened has been presented by the parents.” (citation

v. Ockenfels, 220 F.R.D. 116, 123 (D. Me. 2004)). I do not find this statement entirely controlling here,

however. Although the disposition of a section 1983 claim undoubtedly controls a claim under the

Maine Civil Rights Act that a plaintiff’s federal constitutional rights were violated, it does not

necessarily control a plaintiff’s claims under the Maine Civil Rights Act that her rights under the

Maine Constitution were violated because state constitutional claims cannot be brought under section

omitted)). Even if I were to conclude otherwise, the Defendants would still be entitled

to summary judgment on Welch’s Maine Civil Rights Act claim for two reasons.

First, as to Welch’s argument that her rights under the Maine Constitution

were violated, Welch has not developed this argument and has focused her briefing

entirely on her substantive due process rights under the federal constitution. As

such, I consider this argument waived. See Vázquez Robles v. CommoLoCo, Inc., 252

F. Supp. 3d 111, 114 (D.P.R. 2017); White v. Meador, 215 F. Supp. 2d 215, 228 (D. Me.

2002).

Second, “[t]he same qualified immunity analysis applies under the Maine Civil

Rights Act as under § 1983.” Hegarty v. Somerset Cnty., 848 F. Supp. 257, 269 (D.

Me. 1994) (citing Jenness v. Nickerson, 637 A.2d 1152, 1155 (Me. 1994)). Accordingly,

Officer Dexter would be entitled to qualified immunity on the Maine Civil Rights Act

claim for the same reasons that he is entitled to qualified immunity on the section

1983 claims.

Consequently, the Defendants are entitled to summary judgment on Welch’s

Maine Civil Rights Act claim.

V. CONCLUSION

The events associated with the deaths of Derrick Thompson and Alivia Welch,

and the injuries to Susan Johnson, on December 29, 2012, at the hands of James Pak

are undeniably horrific. After careful reflection, I conclude that the events that

evening represented a novel situation in which the “breathing room” afforded to police

officers by the qualified immunity doctrine applies. Est. of Rahim, 51 F.4th at 410

(quoting Conlogue v. Hamilton, 906 F.3d 150, 155 (1st Cir. 2018)). For the reasons

set out in this decision, the Defendants’ Renewed Motion for Summary Judgment

(ECF No. 113) is GRANTED.

SO ORDERED.

Dated this the 30th day of March, 2023.

/s/ JON D. LEVY

CHIEF U.S. DISTRICT JUDGE