# McIntyre v. United States

> District Court, D. Massachusetts · September 30, 2004 · 336 F. Supp. 2d 87

URL: https://www.frixlaw.com/law-library/cases/2526256

## Case

- **Full name:** Emily MCINTYRE and Christopher McIntyre as Co-Administrators of the Estate of John L. McIntyre, Plaintiffs, v. the UNITED STATES of America, Et Al., Defendants
- **Court:** District Court, D. Massachusetts
- **Decided:** September 30, 2004
- **Citations:** 336 F. Supp. 2d 87; 2004 U.S. Dist. LEXIS 20127; 2004 WL 2230406
- **Precedential status:** Published
- **Opinion:** Opinion by Lindsay
- **Judges:** Lindsay
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2526256

## How later opinions describe it (automated extraction)

- holding 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
- noting that under Collier v. City of Chicopee, 158 F.3d 601, 602 (1st Cir.1998), “motions for judgment on the pleadings under Fed.R.Civ.P. 12(c) warrant the same treatment as motions to dismiss under Fed.R.Civ.P. 12(b)(6)”
- finding purposeful disclosure of confidential informant, knowing that revealing information could result in informant's death, to be "conscience-shocking"
- noting that official acts falling somewhere between “negligently inflicted harm” and “conduct intended to injure” may be found to be conscience shocking depending on the circumstances
- describing many of the scenarios in which the First Circuit Court of Appeals found that supervisors acted with deliberate indifference

## Opinion text

MEMORANDUM AND ORDER ON MOTIONS OF DEFENDANTS AH-EARN, CONNOLLY, FITZPATRICK, GREENLEAF, KENNEDY, MORRIS, AND RING FOR JUDGMENT ON THE PLEADINGS BASED ON QUALIFIED IMMUNITY
LINDSAY, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION .94
II. FACTS. )
A. The Agents. g?
B. The Use of Informants by the FBI as Alleged in the Complaint. g
C. The Development of Bulger and Flemmi as Informants as Alleged in the Complaint.
D. Allegations that the Agents Shielded Bulger and Flemmi from Investigation and Prosecution. to 00
E. The Murder of McIntyre in 1984 as Alleged in the Complaint. CO CO
F. The Alleged Liability of the Agents. CO CO
III. DISCUSSION. r — 1
A. Standard for Consideration of the Motions. i — l
B. Qualified Immunity. i — (
C. Fourth Amendment. i — f
D. Substantive Due Process Rights of McIntyre. t — I
1. Conspiracy Claims. r — 1
r — 1
a. General Principles of Substantive Due Process. i — 1
b. Conscience-Shocking Conduct: The Touchstone of Arbitrary Executive Conduct. © 00
c. Violation of a Fundamental Right. O CO
i. Murder of McIntyre as Private Violence. H-
1
©
(a) Governmental Restraint of Victim. I — t ©
(b) State-Created Danger . I — *• CO
ii. Murder of McIntyre as Government Action. I —
1
GR
(a) Attributing Conduct of the Informants to the Government. CO i-H i — l
(b) Governmental Participation in Private Conduct. fc-i — l i — l
*94
3. Violation by Connolly of the Clearly Established Substantive Due Process Rights of McIntyre. to to
4. Violation by Other Agents of the Clearly Established Substantive Due Process Rights of McIntyre
ZD
rH
E. Access to the Courts. 00 CO t — t
IV. CONCLUSION. .134
I. INTRODUCTION
This is an action brought by Emily and Christopher McIntyre (the “plaintiffs”), as co-administrators of the Estate of John L. McIntyre (the “Estate”), against James Ahearn, John J. Connolly, Jr., Robert Fitzpatrick, James Greenleaf, Roderick Kennedy, John M. Morris, and James A. Ring (collectively, the “agents,” all of whom were agents of the Federal Bureau of Investigation (“FBI”) at various times relevant to the complaint); the United States of America; and Kevin Weeks, James J. Bulger, and Stephen J. Flemmi, purported members of the Winter Hill Gang, an alleged criminal organization operating in the Greater Boston area. The complaint alleges that in 1984, McIntyre was murdered by Weeks, Bulger, Flemmi, or other members of the Winter Hill Gang. The complaint further alleges that the agents are liable for the murder of McIntyre because the agents chose to protect Bulger and Flemmi — - allegedly “top echelon” informants of the FBI— from prosecution, so that the agents could boost their own careers by using the information Bulger and Flemmi provided to them to investigate, arrest, and prosecute members of La Cosa Nostra (“LCN,” commonly known as the “Mafia”), a criminal organization that was a rival to the Winter Hill Gang. As part of his alleged efforts to shield Bulger and Flemmi from prosecution, Connolly, with the knowledge, assistance, or acquiescence of the other agents (except Ahearn), allegedly informed Bulger and/or Flemmi that McIntyre was providing the United States Drug Enforcement Administration (the “DEA”) with information that incriminated Bulger and Flemmi in criminal activity within DEA’s area of concern. According to the plaintiffs, the agents made, caused, or permitted this disclosure, knowing, or with deliberate indifference to the possibility, that Bulger and Flemmi would in turn murder McIntyre or cause him to be murdered. The plaintiffs also allege that all of the agents subsequently violated the constitutional rights of the Estate by engaging in “cover ups” of the murder of McIntyre and of numerous other criminal activities of Bulger and Flemmi. The agents allegedly engaged in this misconduct to preserve the status of Bulger and Flemmi as top echelon informants and to conceal the FBI’s corrupt relationship with them.
The complaint is in thirteen counts.
1
In counts IX through XII, the plaintiffs assert claims under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
408 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971) against various combinations of the agents for the deprivation of rights guaranteed by First, Fourth and Fifth amendments to the Constitution of the United States. The breakdown of these claims is as follows:
Count IX: This count alleges a violation of the Fourth Amendment right of McIntyre to be free from unreasonable seizure by the government. The claim
*95
is asserted against all of the agents except Ahearn.
Count X: This count alleges a violation of the Fifth Amendment substantive due process right of McIntyre not to be deprived of his life or liberty by the government. The claim is asserted against all of the agents except Ahearn.
Count XA: This count alleges a violation of the Fourth and Fifth Amendment rights of McIntyre described in counts IX and X. The claim is asserted against Greenleaf and Ring under a theory of supervisory liability.
Count XI: This count alleges a conspiracy in violation of the Fourth and Fifth Amendment rights of McIntyre described in counts IX and X. The claim is asserted against all the agents.
Count XII: This count alleges a conspiracy to violate the First and Fifth Amendment right of the Estate to access to the courts. The claim is asserted against all the agents.
Before the court are the motions of all of the agents for judgment on the pleadings as to the
Bivens
claims, based on the defense of qualified immunity. On April 23, 2003, I ordered the agents moving for dismissal on the ground of qualified immunity to file a joint memorandum in support of their several motions to the extent that it was practicable to do so.
McIntyre v. United States,
Civ. No. 01-10408 (D.Mass. Apr. 23, 2003) (docket entry 280). An individual memorandum was to be filed only if the motion of an individual agent “raise[d] issues, with respect to qualified immunity, that are unique in his circumstances.”
Id.
Pursuant to this order, Ahearn, Fitzpatrick, Greenleaf, Kennedy, and Ring, together with four other agent defendants in related cases,
2
submitted their Consolidated Memorandum of Law in Support of the Individual Defendants’ Motions to Dismiss or for Judgment on the Pleadings on the Basis of Qualified Immunity (“Def.s’ Cons.Mem.,” docket entry 308). Morris filed a motion to join the motions of the other defendants to dismiss on grounds of qualified immunity.
3
Similarly, Connolly filed a motion for judgment on the pleadings based on qualified immunity.
4
The plaintiffs in this case joined with plaintiffs in related cases in filing the Plaintiffs’ Consolidated Brief in Opposition to Defendants’ Motion to Dismiss or for Judgment on the Pleadings on the Basis of Qualified Immunity (“Pl.s’ Cons.Br. Opp.,” docket entry 321 in McIntyre). The individual defendants filed a consolidated reply (docket entry 324).
II. FACTS
For the purpose of the present motions, I must' treat all well-pleaded facts, and all reasonable inferences therefrom, as true.
Martin v. Applied Cellular Tech., Inc.,
284
*96
F.3d 1, 6 (1st Cir.2002);
United States v. United States Currency, $81,000.00,
189 F.3d 28, 33 (1st Cir.1999);
see also Collier v. City of Chicopee,
158 F.3d 601, 602 (1st Cir.1998) (motions for judgment on the pleadings under Fed.R.Civ.P. 12(c) warrant the same treatment as motions to dismiss under Fed.R.Civ.P. 12(b)(6)).
A. The Agents
■ A brief identification of each agent, based on the complaint, is helpful in understanding the factual allegations.
Agents assigned to the Organized Crime Squad of the FBI Boston Office. Connolly
was a special agent in the Organized Crime Squad (the “OCS”) of the FBI field office in Boston (the “FBI Boston Office”) from approximately February 1973 until his retirement from the FBI in 1990. During this time, he was the “handler” of Bulger and Flemmi.
Morris
was assigned to the FBI Boston Office roughly from March 1972 until November 1991. Between December 1977 and January 1983, Morris was the chief of the OCS and was Connolly’s direct supervisor. After Morris left the OCS, he continued to have contact with Connolly, Bulger, and Flemmi.
Ring
was the chief of the OCS from approximately January 1983 until 1990 and was Connolly’s direct supervisor when McIntyre was murdered.
The “special agents in charge” of the FBI Boston Office. Greenleaf
was the special agent in charge (the “SAC”) of the FBI Boston Office from approximately November 1982 until December 1986 and was the SAC at the time of the murder of McIntyre.
Fitzpatrick
was an “assistant special agent in charge”(“ASAC”) of the FBI Boston Office assigned to the McIntyre matter at the time Bulger and Flem-mi murdered McIntyre.
5
Aheam
assumed the position of SAC of the FBI Boston Office upon Greenleaf s departure and con
*97
tinued in that position for the remainder of the time period relevant to the complaint.
Kennedy.
Kennedy was a special agent in the FBI Boston Office when McIntyre was murdered in 1984. He was the “operational liaison with other agencies concerning narcotics matters.” Compl. ¶ 251.
B. The Use of Informants by the FBI as Alleged in the Complaint
In the mid-1960’s the FBI, including the FBI Boston Office, began to investigate LCN. In the Greater Boston area, LCN was in direct competition with the Winter Hill Gang — a more local, clandestine criminal organization. As the FBI investigated LCN, the development of “top echelon” criminal informants became a high priority for the agency. Top echelon informants were individuals who “could provide a continuous flow of quality criminal intelligence information regarding the leaders of organized crime.”
Id.
139. Information provided to the FBI by its informants permitted the FBI to prosecute and convict members of LCN. Thus, an FBI agent’s success in developing informants— particularly top echelon informants— could significantly advance the agent’s career.
Although often ignored in the FBI Boston Office, guidelines in the FBI Manual of Instructions (the “Guidelines”) prescribed limitations on the use of informants. The Guidelines required that
special care be taken not only to minimize ... use [of informants] but also to ensure that individual rights are not infringed and that the government itself does not become a violator of the law. Informants as such are not employees of the FBI, but the special relationship of an informant to the FBI imposes a special responsibility upon the FBI when the informant engages in activity where he has received, or reasonably thinks he has received encouragement or direction for that activity from the FBI.
Id.
¶ 110. Similarly, the Guidelines advised agents that “[t]he FBI may not use informants ... for acts ... which the FBI could not authorize for its undercover agents.”
Id.
¶ 111 (alterations in original). Further, the Guidelines mandated that “[u]nder no circumstances shall the FBI take any action to conceal a crime by one of its informants.”
Id.
¶ 112. “[I]f the FBI learned that one of its informants had violated the law in furtherance of his assistance to the FBI,” the FBI was required to report the crime to law enforcement or prosecutive authorities, or to the United States Department of Justice.
Id.
¶¶ 113; 114. The Guidelines contained the same mandate where the FBI had “knowledge that one of its informants had committed a serious crime unconnected with his FBI assignments.”
Id.
¶ 115 (internal quotation marks omitted). The Guidelines also dictated that agents seek pre-authorization to permit an informant to commit a crime in order to obtain information for the FBI. Finally, the Guidelines required agents to “avoid any disclosure to anyone which might permit identification of a criminal informant or even cast suspicion on a criminal informant.”
Id.
¶ 109.
C. The Development of Bulger and Flemmi as Informants as Alleged in the Complaint
Flemmi was first developed as a top echelon informant in 1967 by H. Paul Rico, then a special agent in the FBI Boston Office. At the time, Rico knew Flemmi was “a .suspect of [sic] possibly being involved in gangland slayings.”
Id.
¶47. “Rico promised Flemmi protection from the FBI if Flemmi would become an FBI informant.”
Id.
¶ 43. Rico proved true to that promise. For example, in 1969, he warned Flemmi to leave Boston because Flemmi would soon be indicted; in 1974, Rico successfully arranged to have a mur
*98
der charge against Flemmi dropped upon Flemmi’s return to Boston.
The same year that Flemmi returned to Boston, Connolly transferred from an FBI field office in New York to the FBI Boston Office. As a special agent in the OCS, Connolly sought to cultivate Bulger as an informant. Despite the fact that Bulger was known to be violent, Connolly extended the same promise of protection to Bul-ger that Rico had given Flemmi. In 1975, Connolly succeeded in having Bulger designated as a “top echelon” informant. Shortly thereafter, Flemmi, who was working with Bulger, but was no longer an official FBI informant, also began providing information to Connolly. Flemmi was eventually re-registered as an FBI informant in 1980. Connolly continued to act as the “handler” of Bulger and Flemmi until he retired from the FBI in 1990, even though, at'times, he led FBI headquarters in Washington, D.C. to believe that he was no longer using them as informants.
D. Allegations that the Agents Shielded Bulger and Flemmi from Investigation and Prosecution
All of the agents “knew that despite their cooperation with the FBI, Bulger and Flemmi were still engaged in serious criminal wrongdoing.”
Id.
¶ 84. The agents went to great lengths to protect Bulger and Flemmi from investigation and prosecution by state law enforcement agencies, other federal agencies, and even other offices and divisions of the FBI. The agents had several incentives to ensure that the criminal activities of Bulger and Flemmi were not exposed. The information that Bulger and Flemmi provided to Connolly and Morris enabled them and the other agents to investigate and prosecute key members of LCN, resulting in prestige not only for Connolly and Morris, but for those above them in the chain of command. Further, as Connolly and Morris became more entrenched in their relationship with Bulger and Flemmi, Connolly and Morris treated Bulger and Flemmi more as friends than as criminals, accepting from Bulger and. Flemmi gifts,. including wine and money. If Bulger and Flemmi were prosecuted, their corrupt relationship with Connolly and Morris would have been disclosed. Moreover, with each improper deflection of an investigation of Bulger and Flemmi, it became more important for Connolly, Morris, and the other agents to prevent the previous “cover ups” from being discovered.
One of the ways in which Connolly and Morris helped Bulger and Flemmi to avoid investigation and prosecution was by alerting them that criminal associates of the two Winter Hill gangsters were cooperating or might cooperate with law enforcement agencies in providing information about the gangsters’ criminal activities. Such disclosures prompted Bulger and Flemmi to murder persons who had been identified by Connolly and/or Morris as actual or possible informants. After each murder, the agents failed to perform a thorough investigation of the .crime and prevented other law enforcement agencies from discovering the circumstances of the victim’s death.
In 1976, for example, Bulger and Flem-mi learned from Connolly that Richard Castucci was providing the FBI with specific information regarding the whereabouts of two fugitive members of the Winter Hill Gang. As a result of Connolly’s disclosure, Bulger and Flemmi murdered Castucci on or about December 29, 1976. In 1981, Bulger and Flemmi learned from Connolly that Oklahoma businessman Roger Wheeler, an official of World Jai Alai (“WJA”), suspected that John Callahan, the president of WJA, was skimming money from WJA for the Winter Hill Gang. On May 27, 1981, Bulger, Flemmi and others caused Wheeler to be shot and killed in Tulsa, Oklahoma. In January. 1982, Brian
*99
Halloran, a member of the Winter Hill Gang, began to cooperate with the FBI Boston Office and implicated Bulger, Flemmi, and Callahan in the Wheeler murder. Morris learned of Halloran’s cooperation and passed on the information to Connolly. Connolly in turn disclosed Hal-loran’s cooperation to Bulger and Flemmi, and, on May 11, 1982, Bulger and others gunned down Halloran outside a café in South Boston. Later that year, Connolly alerted Bulger and Flemmi that law enforcement agencies were seeking to question Callahan about the Wheeler and Hal-loran murders; as a result, Bulger and Flemmi caused Callahan to be murdered on or about August 1, 1982.
E. The Murder of McIntyre in 1984 as Alleged in the Complaint
In mid-October 1984, John McIntyre, the engineer on a ship called the Valhalla, began to cooperate with the local police in the investigation of criminal activities in which Bulger was involved. He revealed that Bulger participated in an attempt to use the Valhalla to smuggle weapons from Massachusetts to the Irish Republican Army (“IRA”) in Ireland. The local police arranged for agents from the United States Customs Service and the FBI, including defendant Kennedy, to participate in the questioning of McIntyre. During the interview with Kennedy, McIntyre repeated his allegations about Bulger’s involvement in the arms shipments. At the time of this interview, Kennedy was aware of at least some of the ongoing criminal activities of Bulger and Flemmi. Kennedy reported the information he received from McIntyre to Greenleaf; Connolly was present when these FBI agents discussed McIntyre’s cooperation with law enforcement agencies. In October or November 1984, Bulger and his associates learned from Connolly that McIntyre was informing authorities about illegal activities carried out by Bulger and his associates.
6
As a result of this disclosure, Bulger, Flem-mi
7
and Weeks kidnapped, tortured, and murdered McIntyre on or about November 30,-1984.
After the disappearance of McIntyre, the FBI Boston Office told his family that he was a fugitive and failed to undertake any effort to investigate McIntyre’s disappearance. Moreover, in the years following the murder of McIntyre, all of the agents continued to protect Bulger and Flemmi from investigation and prosecution with respect to any of their criminal activities.
See generally id.
¶¶ 298-365, 472, 473.
F. The Alleged Liability of the Agents
In addition to the allegations set out above, the plaintiffs allege that the conduct of all the agents, except Ahearn, resulted in the death of McIntyre because the agents
continued to utilize Bulger and Flemmi as top echelon informants; failed to control the criminal activities of Bulger and Flemmi; failed to enforce the [Guidelines] governing high echelon informants, including Bulger and Flemmi; ... failed to inform the appropriate law
*100
enforcement or prosecutive authorities of the criminal activities of Bulger and Flemmi; continued to allow Connolly to remain Bulger and Flemmi’s “handler” when it was known or should have been known that he should have been removed from that position; failed to warn and protect McIntyre after he agreed to cooperate with federal law enforcement agencies; and failed to warn and protect McIntyre after it became known to the Bulger Group that McIntyre was cooperating with law enforcement officials concerning the illegal activities of the Bulger Group.
Id.
¶ 421, 427.
The plaintiffs further assert that Ring and Greenleaf are liable for the murder of McIntyre because they failed to supervise Connolly in his role as the “handler” of Bulger and Flemmi. Likewise, the plaintiffs claim that Ring and Greenleaf allegedly failed to supervise Kennedy in his duty to warn and protect McIntyre.
III. DISCUSSION
A. Standard for Consideration of the Motions
As explained above, when ruling on motions brought under Fed.R.Civ.P. 12(c), I must accept as true the factual allegátioris of the complaint and draw all reasonable inferences therefrom in favor of the plaintiff; I may not grant the motion unless “it appears beyond a doubt that the plaintiff[s] can prove no set of facts in support of [their] claimfs] which would entitle [them] to relief.”
United States Currency, $81,000.00,
189 F.3d at 33 .
B. Qualified Immunity
Under the qualified immunity doctrine, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly ■ established ■ ... constitutional fights of which a reasonable person would have known.”
Harlow v. Fitzgerald,
457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). Indeed, qualified immunity is meant to protect government officials not just from ultimate liability, but from the burdens of litigation itself.
Mitchell v. Forsyth,
472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985). Whether a government actor enjoys the protection of qualified immunity in a given case is an issue that should be decided, as a matter of law, at the earliest possible stage of a case.
Anderson v. Creighton,
483 U.S. 635, 646, n. 6 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). Nonetheless, “pre-trial resolution [of the question of qualified immunity] sometimes will be impossible because of a dispute as to material facts. In such a case, the factual issues must be decided by the trier of fact .... ”
Kelley v. LaForce,
288 F.3d 1, 7 (1st Cir.2002) (citation omitted).
8
*101
In determining whether qualified immunity applies in a specific case, a court must “first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed[] to determine whether that right was clearly established at the time of the alleged violation.”
Wilson v. Layne,
526 U.S. 603, 609 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999) (quoting
Conn v. Gabbert,
526 U.S. 286, 290 , 119 S.Ct. 1292 , 143 L.Ed.2d 399 (1999));
see also Soto v. Flores,
103 F.3d 1056, 1064 (1st Cir.1997). “[T]he inquiry whether the right at issue was clearly established properly focuses ‘not upon the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged.’ ”
Singer v. Maine,
49 F.3d 837, 845 (1st Cir.1995) (quoting
Wiley v. Doory,
14 F.3d 993, 995 (4th Cir.1994)). Where a plaintiff seeks to hold a defendant liable by virtue of the defendant’s supervisory authority over a subordinate, who violated a constitutional right of the plaintiff, “the ‘clearly established’ prong of the qualified immunity inquiry is satisfied when (1) the subordinate’s actions violated a clearly established constitutional right, and (2) it was clearly established that a supervisor would be liable for constitutional violations perpetrated by his subordinates in that context.”
Camilo-Robles v. Hoyos,
151 F.3d 1, 6 (1st Cir.1998);
see also Poe v. Leonard,
282 F.3d 123, 134 (2d Cir.2002) (agreeing with the two-prong test in
Camilo-Robles
and characterizing the second prong as requiring the plaintiff to show that the “supervisory liability doctrine under which the [plaintiff] wishes to hold [the supervisor] liable” was clearly established). Finally, if a defendant has violated a clearly established right, a court must then consider “whether a reasonable official, similarly situated would understand that the challenged conduct violated a constitutional norm.”
Rivera-Jimenez,
362 F.3d at 93.
C. Fourth Amendment
The plaintiffs allege that the murder of McIntyre deprived McIntyre of his right under the Fourth Amendment to be free from unreasonable governmental seizure and his Fifth Amendment right to substantive due process. The plaintiffs, however, cannot maintain claims for the violation of both of these rights, because “where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process/ must be the guide for analyzing these claims.’ ”
Albright v. Oliver,
510 U.S. 266, 273 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994) (quoting
Graham v. Connor,
490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989)).
9
It is therefore important that I consider the Fourth Amendment claims as a threshold matter.
The agents argue that the murder of McIntyre was not a Fourth Amendment seizure because a seizure requires “governmental termination of freedom of movement
through means intentionally applied,” Brower V: County of Inyo,
489 U.S. 593, 597 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989), and the plaintiffs have failed “to assert that, the individual defendants intended to bring about a particular result
*102
[ie.,
death] with regard to a particular decedent,” Def.s’ Cons.Mem. at 26. The agents also maintain that a seizure only occurs when there is
“direct
police action
intended
to cause a particular result,” and that, in this case, the claimed seizures were not “effectuated by Government personnel such as the individual defendants.”
Id.
at 25, 26. In contrast, the plaintiffs argue that the murder
of
McIntyre was “intended and [was] for the purpose of furthering [a] criminal enterprise” comprising Connolly, Morris, and others, and that Bulger and Flemmi were acting as “representative^ of the government” when they murdered McIntyre. Pl.s’ Cons.Br. Opp. at 19, 20.
Neither the argument of the agents nor that of the plaintiffs completely resolyes the question of whether the plaintiffs have alleged a seizure within the meaning of the Fourth Amendment. While I- cannot glean from the agents’ memorandum how they would define “direct police action,”
10
it is “well established that unlawful acts performed by informants at the instance of Government officials may, for Fourth Amendment purposes, be treated as acts of the Government itself.”
United States v. Bennett,
729 F.2d 923, 925 (2d Cir.1984).
11
Here, the plaintiffs have adequately pleaded government action by alleging that the agents acted in concert with Bulger and Flemmi and/or improperly supervised other FBI employees who did. Moreover, the plaintiffs have explicitly or implicitly alleged that the agents either intended the death of McIntyre and/or improperly supervised other defendants who so intended, thus satisfying the state of mind requirement for a Fourth Amendment seizure.
Despite the, problems with the agents’ position and a superficial appearance of soundness in the plaintiffs’ position, the plaintiffs’ argument nevertheless fails to carry the day for them. Apparently the
*103
plaintiffs interpret
Brower
as holding that a Fourth Amendment seizure occurs
whenever
“there is a governmental termination of freedom of movement
through means intentionally applied.”
489 U.S. at 597 , 109 S.Ct. 1378 ;
Brower
does not, however, stand for that proposition. In
Broiver,
the issue facing the Court was whether a Fourth Amendment seizure occurred when a suspect, leading police in a high-speed pursuit, was killed by crashing into a police roadblock, when he could have voluntarily stopped earlier. The Court explained that, where a suspect being pursued by police unexpectedly loses control of his car and crashes, no seizure occurs because the mechanism that terminated the suspect’s freedom of movement (his unexpected loss of control of the car) was not same mechanism the officers employed in an effort to seize the suspect (show of authority through flashing lights and siren). The Court held, however, that in the case before it, a seizure had occurred because, by setting up a roadblock, the defendants intended to terminate the suspect’s freedom of movement in the very manner that it happened:
It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmen-tally
desired
termination of an individual’s freedom of movement (the fleeing felon), but
only
when there is a governmental termination of freedom of movement
through means intentionally applied.
Id.
at 596-97 , 109 S.Ct. 1378 (second emphasis added).
Contrary to the implication the plaintiffs find in the foregoing language, the passage indicates that “governmental termination of freedom of movement through means intentionally applied” is merely one
element
of a Fourth Amendment seizure— not the entire
definition
of such a seizure. While
all
seizures are governmental terminations of freedom of movement through means intentionally applied, the reverse is not true: not all governmental terminations of freedom of movement through means intentionally applied are seizures. “[Governmental conduct which is not actuated by an investigative or administrative purpose will not be considered a ‘search’ or ‘seizure’ for purposes of the Fourth Amendment.”
Heinrich ex rel. Heinrich v. Sweet,
62 F.Supp.2d 282, 317 (D.Mass. 1999) (quoting
United States v. Attson,
900 F.2d 1427, 1430 (9th Cir.1990) (dismissing claim that federal defendants “seized” patients by conducting unproven and dangerous medical experiments without their knowledge; complaint stated claim, however, for violation of the patients’ substantive due process rights)). The
Brower
decision was necessarily limited, by the factual circumstances of the case, to a discussion of the means by which the government effected the seizure. Because the relevance of the Fourth Amendment to a police pursuit of a fleeing suspect is patent, the
Brower
court did not need to consider whether the officer’s conduct in question was actuated by an administrative or investigative purpose.
In other cases, however, the distinction between police conduct actuated by an administrative or investigative purpose and police conduct actuated by some other purpose must be made. The Second Circuit’s analysis in
Hemphill v. Schott,
141 F.3d 412 (2d Cir.1998), is helpful on this point.
12
*104
In
Hemphill ,
the court held that the alleged conduct of police officers in assisting a private citizen to shoot the plaintiff in the course of the officers’ arrest of the plaintiff was not a seizure within the meaning of the Fourth Amendment, but that the conduct did deprive the plaintiff of his substantive due process rights. According to the plaintiff in that case, when the defendant officers arrived at the scene of an armed robbery, they found that the victim, a store owner and retired police officer, had been shot in the leg by the plaintiff. The officers asked the store owner if he wanted to go directly to the hospital, and he replied that he wanted to accompany the officers in their pursuit of the plaintiff— who had fled in a jeep— because the store owner wanted to “get them.” Id at 414. The officers permitted the store owner to ride in their patrol car and at some point gave him one of their guns. The officers learned that the jeep had stopped at a parking lot and proceeded to that site where, during the plaintiffs standoff with the police, the store owner and an on-duty police officer shot the plaintiff.
The plaintiff, acting pro se, brought a claim under § 1983 against the officers, claiming the defendants had used “excessive force” and “unlawful action” to deprive him of life and liberty.
Id
at 414. Without addressing the plaintiffs allegations about the role the officers allegedly played in “aiding and abetting” the private citizen’s shooting of the plaintiff, the district court granted the defendants’ motions for summary judgment, holding that the force used by the police officer who shot the plaintiff was reasonable for purposes of the Fourth Amendment.
On appeal, the officers argued that their conduct with respect to the private citizen “must be analyzed exclusively under the requirements of the Fourth Amendment” because it “occurred in the context of [the plaintiffs] arrest.”
Id
at 418. The Second Circuit disagreed, and, in reversing the decision of the trial court, explained that
while some of the facts that comprise [the plaintiffl’s allegations with respect to the Officers’ aiding and abetting [the private citizen] occurred in the “context” of his arrest in a physical sense, the Officers’ alleged actions with respect to [the private citizen] form a different kind of claim from excessive force in effecting an arrest.
Graham’s
holding that excessive force claims in the context of an arrest are to be analyzed under the Fourth Amendment’s objective stan
*105
dards does not extend to this unusual situation in which the police officers allegedly engaged in a deprivation of rights coincident with, but, distinct from, their arrest of the suspect.
Id.
at 418-419.
When compared to the more subtle circumstances in
Hemphill ,
where the substantive due process violation was “coincident” to, yet distinctive from, the police’s arrest of the victim, the inapplicability of the Fourth Amendment to the allegations of the present plaintiffs is obvious. The plaintiffs have not alleged facts suggesting that the murder of McIntyre was “governmental conduct ... actuated by an investigative or administrative purpose.” Indeed, the plaintiffs have argued that the murders were “for the purpose of furthering the criminal enterprise” among Bulger, Flemmi, Connolly, Morris, and others. Pl.s’ Cons.Br. Opp. at 19. Moreover, the FBI was not investigating McIntyre. On the contrary, the plaintiffs allege that McIntyre was murdered to shut down or prevent investigations of criminal activity of Bulger and Flemmi.
Because the Fourth Amendment is not the source of a constitutional right the agents may have violated when they allegedly caused the murder of McIntyre, the plaintiffs have not stated a claim against the agents under that Amendment. Thus, the motions of the agents for judgment on the pleadings on the Fourth Amendment claims (counts IX, XA, and XI, to the extent the latter two concern the Fourth Amendment), are GRANTED.
D. Substantive Due Process Rights of McIntyre
The plaintiffs have alleged in counts X, XA, and XI of their complaint that the agents violated the substantive due process right of McIntyre to life and liberty by acts and omissions that led to his murder. In their qualified immunity defense as to these claims, the agents argue that (1) the murder of McIntyre was not “government action,” and (2) McIntyre did not have clearly established substantive due process rights that would have required the agents to protect him from private violence. For the reasons set forth below, I deny in part and grant in part the motions of the agents.
1. Conspiracy Claims
Before embarking on an analysis of whether the conduct of the agents regarding the murder of McIntyre violated his substantive due process rights, I will apply two principles that will eliminate one of the conspiracy claims in this case. In count XI the plaintiffs allege that Ahearn violated McIntyre’s substantive due process rights by joining a conspiracy whose members had previously caused McIntyre’s murder in furtherance of the conspiratorial object of protecting Bulger and Flemmi. The complaint, however, does not contain any reference to conduct by Ahearn occurring prior to the death of McIntyre. It is therefore a legal and factual impossibility that Ahearn violated the substantive due process rights of McIntyre, because those rights terminated at the time of McIntyre’s death.
See Judge v. Lowell,
160 F.3d 67 , 76 n. 15 (1st Cir.1998),
overruled on other grounds by Educadores Puertorriqueños en Accion v. Hernandez,
367 F.3d 61 (1st Cir.2004). The claims against Ahearn cannot stand even if the murder of McIntyre and Ahearn’s concealment of the circumstances of that murder were in furtherance of a single conspiratorial object.
Id.; Estate of Halloran v. United States,
268 F.Supp.2d 91, 96 (D.Mass.2003).
13
Thus, I grant defendant
*106
Ahearn’s motion for judgment on the pleadings as to count XI of the complaint.
There is a second reason that impels me to grant the motions of Morris, Connolly, Kennedy, Fitzpatrick, Ring, and Greenleaf as to count XI of the McIntyre complaint. The stated object of the conspiracy described in count XI was to protect Bulger and Flemmi from investigation and prosecution. In a
Bivens
claim based on a theory of conspiratorial liability, however, the plaintiffs must allege that the agents “act[ed] in concert” to (1) deprive the decedents of their civil rights; or to (2) “commit a lawful act,” “the principal element of which is an agreement between the [agents] to inflict an [unconstitutional injury] upon the [decedents].”
Earle v. Benoit,.
850 F.2d 836, 844 (1st Cir.1988) (internal quotation marks omitted). In other words, the plaintiffs must allege that the underlying purpose of the agents in conspiring was to commit the constitutional violation. In
Estate of Rallaran,
for example, I held that a claim virtually identical to count XI of the present complaint failed to state a claim for a
Bivens
conspiracy claim, because the plaintiff had not alleged that the object of the conspiracy was to deprive the decedent his constitutional rights. 268 F.Supp.2d at 96 . I pointed out that “the [plaintiff] is not able to show that the goal of protecting law enforcement informants is- wrongful or unlawful,” and I suggested that “law enforcement agents regularly
form common
plans to protect their sources as a matter of good investigative practice.”
Id
at 95.
14
Count XI suffers the same infirmity as the claim I dismissed in
Halloran.
Even if the agents foresaw or should have foreseen that the acts furthering their conspiratorial object would deprive McIntyre of his substantive due process rights, the claim cannot go forward because the plaintiffs have not alleged that the deprivation was the
object
or “principal element” of the agents’ agreement.
Cfi Lowden v. William M. Mercer, Inc.,
903 F.Supp. 212, 220 (D.Mass.1995) (dismissing civil rights conspiracy claim brought under 42 U.S.C. § 1985 (3) to deprive plaintiff of her right to interstate travel where complaint alleged a conspiracy to prevent plaintiff from meeting with out-of-state corporate officials to discuss plaintiffs allegations of employment discrimination; statute provided protection against conspiracies for the purpose of depriving persons of constitutional rights, whereas defendants’ purpose was to prevent plaintiff from meeting with corporate officials regardless of their location; interference with plaintiffs interstate travel was “incidental”). Permitting a
Bivens
conspiracy claim to go forward where the constitutional deprivations were
*107
merely “foreseeable” contravenes the principle that “the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”
County of Sacramento v. Lewis,
523 U.S. 833, 848 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998). Accordingly, the motions of all of the agents for judgment on the pleadings are hereby GRANTED as to count XI of the complaint.
15
2. The Substantive Due Process Claim Against Connolly
Although, all of the agents allegedly protected Bulger and Flemmi from investigation and prosecution, Connolly’s alleged misconduct is at the heart of the plaintiffs allegations. Connolly was the agent whose alleged misconduct had the closest nexus to the murder of McIntyre: Connolly allegedly revealed McIntyre’s informant status to Bulger and Flemmi, knowing that the disclosure would result in injury to McIntyre. The alleged misconduct of the other agents consists primarily of acts or failures to act in matters concerning Connolly’s “handling” of Bulger and Flemmi. Thus, a necessary condition to the liability of these agents for a violation of the clearly established substantive due process rights of McIntyre is that Connolly is liable for such a violation. If Connolly did not violate the clearly established substantive due process rights of McIntyre, then any misconduct by the other agents with respect to the murder of McIntyre will not rise to the level of a constitutional violation. I therefore first examine whether the plaintiffs have sufficiently alleged that Connolly violated the clearly established substantive due process rights of McIntyre.
a. General Principles of Substantive Due Process
The Fifth Amendment óf the Constitution of the United States mandates that “[n]o person shall ... be deprived of life, liberty, or property without due process of-law.” U.S. Const. amend. V. The “touchstone of due process is protection of the individual against arbitrary action of the government.”
County of Sacramento,
523 U.S. at 845 , 118 S.Ct. 1708 (quoting
Wolff v. McDonnell,
418 U.S. 539, 558 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974)). The Fifth Amendment guarantees two types of due process— procedural and substantive.
Collins v. City of Harker Heights,
503 U.S. 115, 125 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992). Whereas procedural due process “provide[s] a guarantee of fair procedure in connection with any deprivation of life, liberty, or property” by the government, due process, in the substantive sense, “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ”
Id.
(quoting
Daniels v. Williams,
474 U.S. 327, 331 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986)).
16
The “individual liberties]” protected by the guarantee of substantive due process are “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ ”
Washington v. Glucksberg,
521 U.S. 702, 720-21 , 117 S.Ct.
*108
2258, 138 L.Ed.2d 772 (1997) (quoting
Collins,
503 U.S. at 125 , 112 S.Ct. 1061 ), and so “ ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed,’ ” id at 721, 117 S.Ct. 2258 (quoting
Palko v. Connecticut,
302 U.S. 319, 325 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937)).
b. Conscience-Shocking Conduct: The Touchstone of Arbitrary Executive Conduct
The guarantee of substantive due process “limits what the government may do in both its legislative ... and its executive capacities,” and the “criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.”
County of Sacramento,
523 U.S. at 846 , 118 S.Ct. 1708 . Legislation infringing a litigant’s fundamental rights is arbitrary in the constitutional sense unless the manner of “the infringement is narrowly tailored to serve a compelling state interest.”
Glucksberg,
521 U.S. at 721 , 117 S.Ct. 2258 (quoting
Flores,
507 U.S. at 302, 113 S.Ct. 1439 ).
The touchstone of arbitrariness of executive conduct is of necessity different from that of legislation. Because “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense,’ ”
County of Sacramento,
523 U.S. at 846 , 118 S.Ct. 1708 (quoting
Collins,
503 U.S. at 129 , 112 S.Ct. 1061 ), “the substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as ... conscience shocking,’ ”
id
at 847, 112 S.Ct. 1061 (quoting
Collins,
503 U.S. at 128 , 112 S.Ct. 1061 ). The conscience-shocking standard provides relief where government officials have “abus[ed] [their] power, or employed] it as an instrument of oppression,”
id
at 846, 112 S.Ct. 1061 (quoting
Collins,
503 U.S. at 126 , 112 S.Ct. 1061 ), while it “preserves] the constitutional proportions of constitutional claims,” and prevents the demotion of the Constitution “to a font of tort law,”
id
at 848 n. 8. Thus, “[o]utside of a few narrow categories, like the safeguarding of prisoners who have been wholly disabled from self-protection, this means conduct that is truly outrageous, uncivilized, and intolerable.”
Hasenfus v. LaJeunesse,
175 F.3d, 68, 72 (1st Cir.1999) (citing
County of Sacramento,
523 U.S. at 847 , 118 S.Ct. 1708 ). It is only where “the necessary condition of egregious behavior [is] satisfied” that there is “a possibility of recognizing a substantive due process right to be free of such executive action.”
County, of Sacramento,
523 U.S. at 847 n. 8, 118 S.Ct. 1708 .
Admittedly, the term “conscience-shocking” is far from self-defining. The Supreme Court has observed that “the measure of what is conscience shocking is no calibrated yard stick, [although] it does ... ‘poin[t] the way.’ ”
County of Sacramento,
523 U.S. at 847 , 118 S.Ct. 1708 (quoting
Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir.1973)). There are, however, some clear markers on the measuring stick: “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process” while “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”
Id.
at 849, 118 S.Ct. 1708 .
17
Official acts falling somewhere between these two benchmarks “may be actionable” depending on the circumstances.
Id.
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As alleged in the complaint the conduct of Connolly in relation to the murder of McIntyre is conscience-shocking because it was “conduct intended to injure [McIntyre] in some way unjustifiable by any government interest.” According to the plaintiffs’ allegations and reasonable inferences from those allegations, Connolly purposefully revealed McIntyre’s cooperation with the DEA to Bulger and Flemmi. At the time of disclosure, Connolly knew that, under any circumstance, revealing the identity of a confidential informant could result in the informant’s death. He also fully appreciated that the danger was especially high in revealing to Bulger and Flemmi the identity of informants who provided information about them to law enforcement agencies. Connolly knew that Bulger and Flemmi had committed murders, and that they had murdered other informants whose identities had been revealed to them. Thus, the plaintiffs have alleged that the disclosure by Connolly of McIntyre’s confidential informant status to Bulger and Flemmi was not only “conduct intended to injure” McIntyre, but also conduct intended to injure him
fatally.
Moreover, the conduct was “unjustifiable by any government interest.” It is true that the government had a legitimate interest in investigating and prosecuting members of LCN for their criminal activities, and, in a most perverse sense, the death of McIntyre furthered that lawful goal. With good reason, however, neither Connolly nor any of the other agents has advanced a Swiftian proposal
18
that the government’s interest in prosecuting LCN warranted offering up McIntyre as a sacrificial lamb. Indeed, -it is a fundamental tenet of the Constitution that the ends of law enforcement do not justify all means used to fight crime.
See, e.g., Olmstead v. United States,
277 U.S. 438, 485 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928) (“To declare that in the administration of the criminal law the end justifies the means— to declare that the government may commit crimes in order to secure the conviction of a private criminal— would bring terrible retribution.”) (Brandéis, J., dissenting).
19
Because the plaintiffs have alleged that the conduct of Connolly was “intended to injure [McIntyre] in some way unjustifiable by any government interest,” the plaintiffs have unquestionably pleaded conscience-shocking conduct on the part of Connolly.
c. Violation of a Fundamental Right
I must next determine whether the plaintiffs have adequately alleged that the conscience-shocking conduct of Connolly violated a fundamental right of McIntyre. A key question in determining whether Connolly violated the substantive due process rights of McIntyre is whether the plaintiffs’ allegations support the inference that the murder of McIntyre at the hands of Bulger, Flemmi, or their associates, was sufficiently connected to the government to take the crimes out of the category of purely private violence. While “[t]he Due Process Clause is intended to prevent government officials ‘from abusing [their] power or employing it as an instrument of
*110
oppression,’ ”
Cummings,
271
F.3d
at 346 (quoting
County of Sacramento,
523 U.S. at 846 , 118 S.Ct. 1708 (alteration in original)), the “Clause is phrased in the negative. It says that a state shall not ‘deprive’ residents of life, liberty, or property, save with due process. It does not require the state to furnish residents with property they lack, or ensure that they do not suffer loss at private hands,”
Archie v. City of Racine,
847 F.2d 1211, 1220 (7th Cir.1988).
As discussed below, there are, however, limited circumstances under which the government may have a duty to protect individuals from the wrongful acts of third parties. Here, Connolly and the other agents contend that the murder of McIntyre was an act of private violence, and that the narrow exceptions to the general rule that government agents do not have a duty under the Constitution to protect citizens from the acts of private violence do not apply. In contrast, the plaintiffs argue both that the murder of McIntyre implicates these exceptions and that, moreover, the murder was not purely private conduct, but government action. For the reasons explained below, I hold that the plaintiffs have adequately alleged that the murder of McIntyre was government action.
i. Murder of McIntyre as Private Violence
There are two exceptions to the general rule that the guarantee of substantive due process does not require the government to protect citizens from acts of private violence: (1) when the government has restrained a citizen’s ability to care for himself, as in the case of incarcerated persons or persons in a foster care setting,
see DeShaney v. Winnebago County Dept. of Social Servs.,
489 U.S. 189, 198-200 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989); and (2) when the government, through its affirmative acts, renders an individual more vulnerable to third-party violence,
see Soto,
103 F.3d at 1064 . Not surprisingly, the parties on the present motions disagree sharply as to the scope of these duties and their applicability to the present case.
(a) Governmental Restraint of Victim
In
DeShaney ,
the Supreme Court observed that, absent any claim that the state created the danger, a citizen does not have a constitutional right to be free from the violent acts of third parties, unless the state has restrained the citizen’s liberty. In that case, state officials had taken temporary custody of a small child, Joshua, after receiving reports that his father had physically abused him. After the father voluntarily committed to taking certain steps to improve the child’s welfare, the officials returned Joshua to his father’s custody. Although the officials later became aware that the father was not adhering to the promises he made prior to Joshua’s return, and that Joshua was showing signs of physical abuse, the state took no action until the father beat Joshua so severely that the child fell into a life-threatening coma and became profoundly retarded. Joshua and his mother brought a § 1983 action against the state Department of Social Services, certain of its employees, and the county, alleging that the defendants violated Joshua’s substantive due process rights “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.
at 193, 109 S.Ct. 998 . The district court granted the defendants’ motion for summary judgment, and the court of appeals affirmed.
Affirming the lower courts, the Supreme Court reiterated the principle that there is no general constitutional right to be free from private violence:
[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property
*111
of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee- of certain minimal levels of safety and security. It 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.... Its purpose was to protect the people from the State, not to ensure that the State protected them from each other.
Id.
at 195-196 , 109 S.Ct. 998 . The plaintiffs nonetheless argued that “even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain ‘special relationships’ created or assumed by the State with respect to particular individuals.”
Id.
at 197 , 109 S.Ct. 998 . The plaintiffs maintained that “such ‘special relationship’ existed [in that case] because the State knew that Joshua faced a special danger of abuse at his father’s hands, and specifically proclaimed, ... its intention to protect him against that danger.”
Id.
The plaintiffs conceded that the state did not play a part in creating the danger Joshua faced.
Id.
The Court rejected the plaintiffs’ “special relationship” argument.
Id.
at 198 , 109 S.Ct. 998 . Acknowledging that in some instances “the Constitution imposes upon the State affirmative duties of care and. protection with respect to particular individuals,”
id.,
the Court held that such circumstances were limited to where the state performed an “affirmative act of restraining the individual’s freedom to act on his own behalf-, through incarceration, institutionalization, or other , similar restraint of personal liberty,”
id.
at 200 , 109 S.Ct. 998 . In those situations, “it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf ... which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.”
Id.; see also Davis v. Rennie,
264 F.3d 86, 98 (1st Cir.2001) (“Once the state restrains an individual’s liberty, rendering that individual unable to act for himself ... the state does acquire an affirmative duty to protect.” (quoting
Shaw v. Strackhouse,
920 F.2d 1135, 1144 (3d Cir.1990)) (alteration in original)). In other words, the underlying relationship giving rise to a concomitant constitutional duty on the part of the government to protect an individual from private violence is one in which the government has restrained someone against his/ her will. First Circuit cases decided after
DeShaney
unequivocally demonstrate that this “governmental restraint of freedom” exception
20
to the general rule that the
*112
Constitution does not protect against private violence is limited to situations where government officials have forcibly restrained an individual in a physical rather than in a figurative sense. In
Souza v. Pina,
53 F.3d 423 (1st Cir.1995), for example, the First Circuit rejected the argument of a § 1983 claimant that prosecutors had allegedly driven the plaintiffs decedent to commit suicide. The court discerned no constitutional duty to protect the decedent because the prosecutors had not restrained him within the meaning of
DeShaney .
The plaintiff had maintained that, in light of the fact that the prosecutors knew or should have known that the decedent had posed a risk of suicide, their alleged misconduct limited the decedent’s freedom “as greatly as if he were locked in maximum security.”
Id.
at 426. In reversing the district court’s denial of the prosecutors’ motion to dismiss based on qualified immunity, the First Circuit explained that “the Supreme Court has made clear that the state has a duty to protect only when it affirmatively acts to restrain the ‘individual’s freedom to act on his own behalf— through incarceration, institutionalization, or other restraint of personal liberty.’ ”
Id
(quoting
DeShaney,
489 U.S. at 200 , 109 S.Ct. 998 ).
21
Similarly, in
Monahan v. Dorchester Counseling Center, Inc.,
961 F.2d 987 (1st Cir.1992), the court affirmed the dismissal of § 1983 claim in a case where a
voluntarily committed
mental health patient alleged he was injured when he jumped out of a van driven by state employee. At the time, the plaintiff was being transported from a state mental health treatment center to a state-run group home. The court reasoned that the
DeShaney
governmental restraint exception did not apply because the state had not committed the plaintiff involuntarily and therefore had not taken an “affirmative act” of restraining the plaintiffs liberty.
Id.
at 991.
Despite this case law, the plaintiffs argue that, because McIntyre was a government informant, he was “owed a constitutionally protected duty of care arising out of a recognized ‘special relationship.’ ”
*113
Pl.s’ Cons.Br. Opp. at 11. The plaintiffs label the “ ‘defendants’ reliance on the proposition “that this only occurs ‘through incarceration, institutionalization, or other similar restraint of personal liberty’ ” ’ ” as “misplaced and incomplete,”
id.
(quoting Def.s’ Cons.Mem. at 18), and maintain that “serving as a confidential informant for law enforcement significantly compromises one’s ability to protect oneself, quite in the same fashion as if one were in a prison setting,”
id.
The plaintiffs’ argument fails because, unlike an inmate or involuntarily institutionalized patient, the informant/government relationship is voluntary and does not involve physical restraint by government agents. The plaintiffs have not suggested that the government physically forced McIntyre to become an informant. To be sure, because McIntyre was suspected of criminal activity, his decision to cooperate might have been based on persuasive argument by the government that it was in his interest to assist the government’s investigation and prosecution of the criminal activities of others. It is also safe to say that confidential informants are generally more at risk than persons who are not informants. But neither the government’s leverage in recruiting criminal suspects to become informants nor the danger inherent in one’s acceptance of that role amounts to “incarcération, institutionalization, or other similar restraint of personal liberty.”
DeShaney,
489 U.S. at 200 , 109 S.Ct. 998 . Whatever metaphorical shackles may be inherent in becoming an informant, or to whatever degree being an informant “significantly compromises one’s ability to protect oneself,” is simply insufficient to cloth the informant with substan-five due process rights to protection from the harm he might suffer as a consequence of being an informant. Like the patient in
Monahan ,
who voluntarily committed himself to a mental institution, McIntyre
chose
to be an informant. His freedom to choose whether to cooperate with the government bears no resemblance to the situation of one who, by action of the government, is forced behind locked hospital or prison doors.
22
(b) State-Created Danger
Another exception to the general rule that there is not a constitutional right to be free from private violence is the so-called “state-created danger” theory. In
DeShaney ,
the Court implicitly acknowledged that, where the government’s affirmative acts render a citizen more vulnerable to private., violence, the .citizen has a corresponding constitutional right to be protected from that violence:
While the state may have been aware of the dangers 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;
the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.
489 U.S. at 201, 109 S.Ct. 998 (emphasis added). Although this so-called state-cre
*114
ated danger theory existed in one form or another prior to
DeShaney, see, e.g., Soto,
103 F.3d at 1064-65 (providing an overview of the development of the state-created danger theory of substantive due process rights), many courts have read
DeShaney
as recognizing a constitutional requirement that the government protect a citizen only when the government’s affirmative acts place a person in a “worse position than ... had it not acted at all.”
See, e.g., Hasenfus,
175 F.3d at 73 (citing
DeShaney ,
and explaining that “[w]here a state official acts so as to create or even markedly increase a risk, due process constraints may exist, even if inaction alone would raise no constitutional concern”).
23
The agents argue that the plaintiffs cannot rely on the state-created danger theory because, at the time of the agents’ alleged misconduct, a substantive due process right based on this theory was not “clearly established.” The threshold question for a court to consider in assessing the qualified immunity defense in a given case, however, is whether “the facts alleged show the [defendants’] conduct violated a constitutional right.”
Saucier v. Katz,
533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). Thus, before considering the question of whether the right of a citizen to be protected from state-created dangers was clearly established at the time of McIntyre’s murder, I must first determine whether the alleged conduct of Connolly violated that right as to McIntyre. This is not a difficult analysis: revealing to known murderers that one of their associates is an informant, cooperating with the government, unquestionably endangers the safety of that informant. Therefore when plaintiffs allege that, in disclosing the informant status of McIntyre to Bulger and Flemmi, Connolly acted affirmatively to put the life of McIntyre in jeopardy, they have sufficiently alleged a violation by Connolly of McIntyre’s substantive due process right to be protected from the danger of the government’s own creation.
But the plaintiffs argue in vain when they assert that the “state-created danger” theory, or the “constitutional duty not to affirmatively abuse governmental power so as to create danger to individuals and render them more vulnerable to harm,”
Soto,
103 F.3d at 1064 , was clearly established at the time Bulger and Flemmi are alleged to have murdered McIntyre.
Soto v. Flores
forecloses this argument. In
Soto ,
the plaintiff had reported her husband’s emotional and physical abuse of her to police officers. At the time of the report, the plaintiff bore the visible marks of recent physical abuse; she also expressed her fear that her husband would murder her if he learned she had reported his abuse. Despite the plaintiffs voiced concern, the police officers did not take the husband into custody and in fact alerted the husband to the plaintiffs allegations. After learning of the report, the husband killed the couple’s two children and then himself, leaving a note indicating he had learned of the mother’s domestic abuse report. Advancing a state-created danger theory of liability, the plaintiff claimed the officers had violated, among other things, her substantive due process rights and those of her children. The First Circuit held, however, that, “in 1991 ‘the contours of [a substantive due process right under
*115
state-created danger theory] were [not] sufficiently plain that a reasonably prudent state actor would have realized not merely that his conduct might be wrong, but that it violated a particular constitutional right.’ ”
Id.
at 1065 (quoting
Martinez,
54 F.3d at 988 (second alteration in original)). Citing
White v. Rockford,
592 F.2d 381, 383 (7th Cir.1979), the First Circuit did acknowledge, however, that the “ ‘state-created danger theory,’ has been recognized by some federal courts as a viable mechanism for establishing a constitutional claim at least since 1979.” 103 F.3d at 1064 (quoting
Kneipp v. Tedder,
95 F.3d 1199, 1201 (3d Cir.1996)). Nonetheless, the court concluded that the history of the theory was “an uneven one,” and that the court could not “extract a i clearly established right from a somewhat confusing body of caselaw through the use of hindsight.”
Id.
at 1065.
In light of the First Circuit’s unambiguous holding in
Soto
that a substantive due process right under the state-created danger theory was not clearly established in 1991, the plaintiffs face a formidable obstacle. The plaintiffs contend, however, that
Soto
is inapplicable to their case because
Soto
failed to “distinguish [between] materially distinct theories of state created danger,” and because the harm to which the agents exposed McIntyre was a more likely and more dangerous harm than that implicated in the cases cited by the First Circuit in
Soto .
Pl.s’ Cons.Br. Opp. at 16 The plaintiffs also maintain that
Soto
is inapposite, because, in
Soto ,
there was no evidence that the children (rather than the plaintiff) were at risk of being killed by the husband. Contrasting their case with
Soto ,
the plaintiffs point out that McIntyre was both the anticipated and actual victim of the danger created by the agents. Pl.s’ Cons.Br. Opp. at 15-16.
While there may be factual distinctions between
Soto
and the present case, these differences are immaterial insofar as the plaintiffs rely on a state-created danger theory for their contention that the agents violated a clearly established right. The decision in
Soto
was not premised on the degree of harm the victims faced or the fact that the father had only threatened to kill the plaintiff, rather than the couple’s children. Such factors might be material to an inquiry into whether a right under the state-created theory was violated, but not whether the right existed in the first place.
Finally, the plaintiffs seek to avoid the result required by
Soto
by arguing that, even if the First Circuit had not recognized the state-created danger theory at the time of the murder of McIntyre, “a factual question still exists whether the defendants ... had special knowledge through FBI legal training, regarding the
emerging
‘state created danger theory prior to [the alleged misconduct by the defendants].” Pl.s’ Cons.Br. Opp. at 3 (emphasis added). The mere statement of this proposition undermines the viability of the argument that the theory of liability based on state-created danger was clearly established at the time McIntyre’s murder. If the state-created danger is only “emerging,” perforce it is not clearly established. Furthermore the question of whether a constitutional right is “clearly established” is a legal question, not a fact question.
Elder v. Holloway,
510 U.S. 510, 516 , 114 S.Ct. 1019 , 127 L.Ed.2d 344 (1994) (“Whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law, not one of ‘legal facts.” ’).
ii. Murder of McIntyre as Government Action
The question of whether the agents violated the substantive due process rights of
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McIntyre need not be cast only in terms of the possible obligation of the agents to protect McIntyre from
private violence,
however. Not all action by non-governmental employees is private action. Here, the plaintiffs have alleged that Connolly gave Bulger and Flemmi information, opportunity, encouragement, and protection to murder McIntyre. It is also reasonable to infer from such allegations that the murder of McIntyre was the intended result of Connolly’s disclosure. Under the circumstances as alleged, I hold that the involvement of Connolly in the murder of McIntyre transformed what ordinarily would have been a crime committed by private individuals into government action.
(a) Attributing Conduct of the Informants to the Government
As a prelude to the discussion of whether the murder of McIntyre is to be considered government action, it is worth noting that the federal courts have long held that the government, may not categorically absolve itself of responsibility for the actions of its informants simply by disclaiming any formal agency relationship with them. Almost half a century ago, in
Sherman v. United States,
356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958), the Supreme Court held that an unpaid informant was acting as an agent of the government when he persuaded a criminal defendant to procure narcotics. Because the informant had repeatedly attempted to have the defendant obtain drugs, including by appealing to the defendant’s sympathy and by inducing the defendant to return to his narcotics habit, the Court held that the defendant was not criminally liable because the government, through the informant, had entrapped the defendant. In so ruling, the Court explicitly stated that the informant had acted as an agent of the government, even if the government, by turning a blind eye to the informant’s tactics, was not aware of all of the informant’s activities:
[The] Government cannot disown [the informant] and insist it is not responsible for his actions. Although he was not being paid, [the informant] was an active government informer who had but recently been the instigatory [sic] of at least two other prosecutions.... In his testimony the federal agent in charge of the case admitted that he never bothered to question [the informant] about the way he had made contact with [defendant]. The Government cannot make such use of an informer and then claim disassociation through ignorance.
Id.
at 373-75 , 78 S.Ct. 819 . Similarly, in
Hoffa v. United States,
385 U.S. 293 , 87 S.Ct. 408 , 17 L.Ed.2d 374 (1966), the Court warned that although the use of secret informants to investigate criminal suspects is not
per se
unconstitutional, an informant is not “to the slightest degree more free from all relevant constitutional restrictions than is any other government agent.”
Id.
at 311 , 87 S.Ct. 408 .
24
Lower courts have likewise held that an informant’s misconduct in investigating a criminal suspect may constitute “outrageous conduct,” vio-
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lative of the suspect’s due process rights, requiring that an indictment against the suspect/defendant be dismissed.
25
(b) Governmental Participation in Private Conduct
With that backdrop, I turn to the question of when the conduct of a private citizen— who may or may not be and informant— is “government action” for purposes of holding government officials and the private citizen himself liable for the deprivation of constitutional rights. The notion that the action of a private party can be government action for purposes of determining whether a constitutional violation has occurred was widely discussed in cases arising from the Civil Rights Movement of the 1960’s and 1970’s. In those cases, claimants alleged that the government’s imprimatur on the discriminatory acts of private citizens violated their rights under the Equal Protection Clause of the Fourteenth Amendment. U.S. Const. amend. XIV.
26
In
Burton v. Wilmington Parking Authority,
365 U.S. 715 , 81 S.Ct. 856 , 6 L.Ed.2d 45 (1961), one of the first of these cases, the Court held that the plaintiff had sufficiently alleged that a municipal agency and a privately-owned restaurant located on property owned and managed by the agency 'violated the equal protection rights of a black restaurant customer who was refused service at the restaurant on the basis of his race. Explaining that “the concept of state responsibility [is] interpreted as necessarily following upon ‘state participation through any arrangement, management, funds or property,’”
id:
at 721, 81 S.Ct. 856 (quoting
Cooper v. Aaron,
358 U.S. 1, 4 , 78 S.Ct. 1401 ) 3 L.Ed.2d 5, 19 (1958)), the Court held that, because of the state’s failure to prohibit its lessee from discriminating against patrons on the basis of race, the state had violated the equal protection rights of the customer who was refused service:
By its inaction, ... the State [ ] has not only made itself a party to the refusal of
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service, but has elected to place its power, property and prestige behind' the admitted discrimination. The State has so far insinuated itself into a position of interdependence with [the private business] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so “purely private” as to fall without the scope of the Fourteenth Amendment.
365 U.S. at 725 , 81 S.Ct. 856 .
27
The Court warned, however, that “to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an impossible task.... Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.”
Id.
at 722 , 81 S.Ct. 856 (internal quotation marks omitted).
28
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Courts have addressed several kinds of government involvement in private conduct in determining whether that private conduct may be treated as government action in the context of a claimed .constitutional violation. Because the calculus involves “sifting facts and weighing circumstances,” the descriptions and tests for liability of government actors for constitutional violations, based on government involvement in private conduct, have multiplied
29
since
Burton
was issued. There is no rubric that is the single expression of the circumstances in which government action will be found in the conduct of private actors.
30
Still, the cases have a common theme: when a government actor participates in the conduct of private actors that would violate the constitution if the conduct were solely that of the government actor, the conduct is government action for purposes of analyzing whether a constitutional violation has occurred. I need only discuss a sampling of cases that may be fairly analogized to the cases presently before me to make the point.
In the well-known case,
Adickes v. S.H. Kress & Co.,
398 U.S. 144 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970), the Court held that a store employee’s act of refusing service •to -the plaintiff, allegedly because the plaintiff was a white woman in the company of black persons,' might have been under “col- or of law” if the employer had conspired or “somehow reached an understanding” with local police to refuse the plaintiff sfervice on that ground: “The involvement of a state -official in such a conspiracy plainly provides the state action essential to show a direct violation of [the plaintiffj’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful.”
Id.
at 152 , 90 S.Ct. 1598 . While the trial court had held that the plaintiff had “failed to allege any facts from which a conspiracy might be inferred,”
id.
at 148 , 90 S.Ct. 1598 , the Court held that the undisputed facts did not foreclose the proposition that if a police officer were present at the store, “it would be open to a jury ... to infer from the circumstances that the policeman and a Kress employee had a ‘meeting of the minds’ and thus reached an understanding. that petitioner should be refused service,”
id.
at 158 , 90 S.Ct. 1598 .
In
Fries v. Barnes,
618 F.2d 988 (2d Cir.1980), the Second Circuit used a similar mode of analysis to hold that a plaintiff, who alleged that police officers and private
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physicians had acted “in concert, cooperation and conspiracy with each other” to conduct a warrantless search and seizure, had stated a valid § 1983 claim against the officer and the physicians.
Id.
at 990. The district court had dismissed the plaintiffs claims
sua sponte
as frivolous, concluding that there was no indication that the physicians had acted under color of law when they turned over to authorities items the doctors obtained while treating the plaintiff for a gunshot wound. Reversing the district court’s order, the Second Circuit cited
Adickes
and explained that a “police officer or government agent may not escape responsibility by claiming that the violation of the plaintiffs rights was committed by the private person involved in such a collaborative undertaking.”
Id.
at 990. Because the plaintiff had alleged that the police had “aided and abetted the other Defendants, and ... directed the concerted action that Plaintiff contends deprived him of his constitutional rights,” the allegations met “the test laid down by
Adickes ,
and are inconsistent with the district court’s mistaken impression that there was no allegation of a conspiracy between the police and doctor.”
Id.
at 991 (alteration in original).
Over a decade after the
Fries
decision, the Second Circuit, in
Dwares v. City of New York, 986 F.2d 94 (2d
Cir.1993) held that police officers who allegedly aided and abetted a private actor’s assault on the plaintiff could be liable to the victim in a § 1983 claim. The plaintiff alleged that, prior to a rally during which the assault occurred, the police officers told certain “skinheads” that unless the skinheads’ conduct at the rally got completely out of control, the police would neither interfere with their assaults nor arrest the perpetrators. During the rally, the skinheads attacked the plaintiff; police officers witnessed the ten-minute attack, but did not make an attempt to intervene. Citing
Fries
and
Adickes ,
the Second Circuit vacated the district court’s dismissal of the claim, explaining that “a state actor may be subject to liability for an action physically undertaken by private actors in violation of the plaintiffs liberty or property rights if the state actor directed or aided and abetted the violation.”
Id.
at 98. Noting that, by alleging that the officers had agreed not to interfere with skinheads’ conduct, the plaintiff had alleged that “the officers in effect aided and abetted” the assault.” The court concluded that “[s]uch a prearranged official sanction of privately inflicted injury would surely have violated the victim’s rights under the Due Process Clause.”
Id.
at 99.
31
The Second Circuit’s analysis in
Hemphill v. Schott,
141 F.3d 412 (2d Cir.1998), discussed
supra,
is similar to that in
Dwares .
Relying on allegations that the officers “conspired with another” by giving a gun to the store owner who then shot the plaintiff, the Second Circuit concluded that the plaintiff in
Hemphill
had sufficiently “ple[aded] a violation of his Fourteenth
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Amendment right not to be subjected to the excessive force of a third party who is aided and abetted by a state actor.” 141 F.3d at 419 .
32
One of the factors the court pointed to in arriving at this conclusion was the fact that knowing that, the store owner wanted to “get” the plaintiff, the officers provided the store owner with a gun and allowed him to accompany the officers to the scene of the arrest.
Id.
Because a jury could infer from these circumstances that the officers “acted for the very purpose of causing [the plaintiff] harm,” the factual dispute over the officers’ intentions foreclosed summary judgment.
Id.
at 420 .
In the four cases discussed above, the courts used a variety of expressions to describe the relationship between the private and public actors in finding government action where a private party delivered the final blow. The store clerk and the policeman in
Adickes
might have “reached an understanding” or had a “meeting of the minds” to refuse service to the plaintiff. 398 U.S. at 152, 158 , 90 S.Ct. 1598 . The jury could infer this “understanding” simply from the police officer’s presence in the store.
Id.
at 158 , 90 S.Ct. 1598 . In
Fries ,
the plaintiffs claim of a conspiracy was supported by allegations that the police officers and the physicians
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wer.e “involved” in a “collaborative undertaking” and that the officers “aided and abetted” the physicians and “directed” the objectionable conduct. 618 F.2d at 990 . In
Dwares ,
the court characterized the police officers’ promise that they would not arrest or even interfere with the skinheads as a “prearranged official sanction of privately inflicted injury.” 985 F.2d at 99. The officers “aided and abetted” the assault with their promise of inaction.
Id.
In
Hemphill ,
a conspiracy for the “very purpose of causing” the harm inflicted on the plaintiff could be inferred from the allegations that the officers armed a vengeful citizen and delivered him to a volatile arrest situation. 141 F.3d at 420 . The officers’ actions “aided and abetted” the assault.
Id.
at 419 .
33
In each one of these cases, the government’s participation in the conduct complained of was so far removed from the realm of “purely private” actions that it was deemed to have been government action.
The relationship between Connolly, on the one hand and, Bulger and Flemmi, on the other, with respect to the murder of McIntyre, may be characterized by any of the nomenclature used in
Adickes, Fries, Dwares,
and
Hemphill .
As I have noted above, the allegations and the reasonable inferences from them are that Connolly not only knew the dire consequences of revealing to Bulger and Flemmi the identity of McIntyre as an informant, but intended that Bulger and Flemmi would kill McIntyre following the disclosure of his identity. The plaintiffs allege that Connolly had an incentive to quiet McIntyre. Because the hallmark of a successful FBI agent was handling a “top echelon” informant, it was necessary to protect Bulger and Flemmi from prosecution in order for Connolly to continue benefiting from the prestige of that relationship. Moreover, Bulger and Flemmi were a repository of information not only about LCN, but also about the malefactions of the FBI generally, and of Connolly in particular. Criminal prosecution of Bulger and Flemmi might expose the corrupt relationship Connolly maintained with Bulger and Flemmi. Thus, Connolly, Bulger, and Flemmi might be said to have “reached an understanding;” that they had a “meeting of the minds;” that they engaged in a “collaborative undertaking;” or that they conspired to kill the McIntyre. The disclosure by Connolly of the informant status of McIntyre may have been a “prearranged official sanction of privately inflicted injury.” It can also be said that, by disclosing McIntyre’s identity as an informant and communicating in word or in deed that the FBI would deflect efforts by other law enforcement agencies to investigate and prosecute Bulger and Flemmi for murdering McIntyre, Connolly “aided and abetted” the homicide. Regardless of the descriptor used, the plaintiffs have alleged that Connolly, in his role as a government official, participated in the murder of McIntyre, and the constitutionality of his conduct and that of all of the agents must be analyzed on the premise that the murder of McIntyre was government action.
3. Violation by Connolly of the Clearly Established Substantive Due Process Rights of McIntyre
The Fifth Amendment explicitly states that the government may not deprive a citizen of life without due process of law. Indeed, “[o]ne of the less contro
*123
versial aspects of the due process clause is its implicit prohibition against a public officer’s intentionally killing a person, or seriously impairing the person’s health, without any justification.”
K.H. ex rel. Murphy v. Morgan,
914 F.2d 846, 848 (7th Cir.1990);
see also Souza,
53 F.3d at 426 (“There is a constitutional right not to be deprived of life without due process of law. Thus, a state actor cannot murder a citizen.”).
34
The cases discussed in the preceding section of this memorandum and order establish that this right may be implicated even where the murder is physically carried out by a private actor.
The defense of qualified immunity applies unless the law is clearly established either by materially similar precedent or by general legal principles that apply with obvious clarity to the facts of the case.
Hope v. Pelzer,
536 U.S. 730, 741 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002). Under the facts as alleged by the plaintiffs, it cannot be doubted that Connolly violated the substantive due process rights of McIntyre. In fact, because Connolly allegedly participated in and/or aided and abetted the murder of McIntyre, the right in question might be characterized as the right not to be murdered by the government. As so characterized, the right is clearly established by the words of the Fifth Amendment itself.
See, e.g., Heinrich,
62 F.Supp.2d at 319 (holding that the plaintiffs’ decedents had a clearly established right in 1946 to be free from being injected with plutonium by the government without her consent “[e]ven absent the abundant case law that has developed on this point since the passage of the Bill of Rights”). But, even if the right is characterized as a right not to be murdered by a private actor where a government actor aided, abetted, collaborated or conspired with the private actor to accomplish the murder, the right was clearly established before McIntyre was murdered. The fact that there is no case proclaiming the existence of the right under factual circumstances like those presented by the case before me does not preclude a determination that the right was clearly established. The Supreme Court has rejected the notion that the determination of whether a constitutional right is clearly established requires that a court find that the facts before it are fundamentally similar to a previous case declaring the right. The Court instead has explained that
general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances 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 previously been held unlawful.
Hope,
536 U.S. at 741 , 122 S.Ct. 2508 (quoting
Lanier,
520 U.S. at 270-71, 117 S.Ct. 1219 ) (internal citation marks omitted). Thus, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”
Id.
Indeed, “the easiest cases don’t even arise.”
Lanier,
520 U.S. at 271 , 117 S.Ct. 1219 (quoting
United States v. Lanier,
73 F.3d 1380, 1410 (7th Cir.1996) (Daughtrey, J., dissenting)). For example, “[t]here has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.”
Id.
(quoting
Lanier,
73 F.3d at 1410 (Daughtrey, J., dissenting))
35
;
see also Anderson,
483 U.S. at 640 , 107 S.Ct. 3034
*124
(explaining that it is not required that the “very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent”).
36
Cases in which “general statements of the law” gave “fair and clear ruling” applied “with obvious clarity” to the conduct in question include
Drummond, v. City of Anaheim,
343 F.3d 1052, 1061-62 (9th Cir.2003) (holding that officer’s alleged conduct in subduing mentally ill citizen violated “clearly established” law because the court “need[ed] no federal case directly on point to establish that kneeling on the back and neck of a compliant detainee, and pressing the weight of two officers’ bodies on him even after he complained that he was choking and in need of air violates clearly established law, and that reasonable officers would have been aware of the same”); and
Polk v. District of Columbia,
121 F.Supp.2d 56, 70-71 (D.D.C.2000) (holding that, where police officer allegedly directed ride-along civilian to detain someone for whom there was no probable cause, the absence of any reported cases addressing that precise conduct did not foreclose a determination that the right to be free from such detentions was clearly established; there was no “open question” whether the Constitution outlawed the officer’s conduct and “there can be little doubt that the Constitution forbids police officers
*125
to share their authority to conduct searches and seizures with unauthorized civilians”).
37
Based on these principles, I hold that in 1984, the substantive due process right to not be murdered by a private actor where a government actor aided, abetted, collaborated or conspired with the private actor to accomplish the murder was clearly established.. Although in ,1984 the courts had not addressed factual circumstances “fundamentally similar” to those alleged by the plaintiffs in this case, “in the light of pre-existing law, the unlawfulness” of Connolly’s conduct was “apparent.”
Anderson,
488 U.S. at 640, 107 S.Ct. 8034 . The text of the Fifth Amendment provided the general prohibition against the government’s depriving citizens of life. It was also clearly established in 1984 that constitutional violations can be effectuated by private actors acting in concert with government actors.
See Sherman v. United States,
356 U.S. at 373 , 78 S.Ct. 819 (1958) (“[The] Government cannot disown [the informant] and insist it is not responsible for his actions.”);
Burton,
365 U.S. at 725 , 81 S.Ct. 856 (1961) (“The State has so far insinuated itself into a position of interdependence with [the private business] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment.”);
Hoffa v. United States,
385 U.S. at 311 , 87 S.Ct. 408 (1966) (an informant is not “to the slightest degree more free from all relevant constitutional restrictions than is any other government agent”);
Adickes,
398 U.S. at 151 , 90 S.Ct. 1598 (1970) (private actor’s “understanding” with police officer to refuse service to a customer was state action subject to constitutional scrutiny), discusspd
supra.
I “need no federal
*126
case directly on point,”
Drummond,
343 F.3d at 1061 , to conclude that it was clearly established in 1984 that an FBI agent violates the substantive due process right of an individual to be free from government-sponsored, incited, or provoked murder if the individual is murdered as a result of the disclosure by the agent to violent criminals that the individual is cooperating with the government in investigations of the unlawful activities of the criminals, and the agent knows or should know that the criminals will kill the individual, reasonably believing that the agent will protect them from prosecution for that murder.
Although none of the parties have addressed the issue, I also hold that, based on the plaintiffs allegations, it was reasonable for Connolly to have been aware that his conduct violated McIntyre’s clearly established right to be free from government-involved murder. There are no allegations supporting a conclusion that Connolly made a reasonable mistake as to what the law required,
see Saucier,
533 U.S. at 205, 121 S.Ct. 2151 , that he was reasonably ignorant of crucial facts,
see Suboh v. District Attorney’s Office of Suffolk Dist.
298 F.3d 81, 95 (1st Cir.2002), or that any, other circumstance existed that would have made it unreasonable for Connolly to appreciate that his conduct was unconstitutional Moreover, while regulations do not establish constitutional rights, they may provide fair warning that conduct violates the Constitution.
Groh v. Ramirez,
540 U.S. 551 , 124 S.Ct. 1284 , 1293-94 & n. 7, 157 L.Ed.2d 1068 (2004) (explaining that federal agency directive that its agents had to be sure a search warrant was sufficient on its face before executing it “underscore[d] that [an agent] should have known that he should riot execute a patently defective warrant”);
Hope,
536 U.S. at 744 , 122 S.Ct. 2508 (state department of corrections regulations concerning permitted of uses of hitching post provided fair warning that prison guards’ coriduct was unconstitutional, when the guards, in violation of the regulations, handcuffed an inmate to the hitching post for seven hours without water or bathroom breaks). Here, the Guidelines required FBI agents to “ensure that individual rights are not infringed and that the government itself does not become a violator of the law.” Compl. ¶ 110.
I therefore hold thát Connolly is not entitled to qualified immunity on count X of the complaint on this present motion for judgment on the pleadings under Rule 12(c), and I DENY his motion as to count X.
4. Violation by Other Agents of the Clearly Established Substantive Due Process Rights of McIntyre
Having found that Connolly violated the clearly established due process right of McIntyre not to be murdered by the government or with government participation, I turn to the question of whether the alleged misconduct of Fitzpatrick, Green-leaf, Kennedy, Morris, or Ring also violated that right. For purposes of this discussion, I will treat Fitzpatrick, Greenleaf, Kennedy, Morris, and Ring as “supervisors.” Although the pleadings only identify Greenleaf, Fitzpatrick, and Ring as formal supervisors at the time of the murder of McIntyre, the term “supervisor” may be “defined loosely to encompass a wide range of officials who are themselves removed from the perpetration of the rights-violating behavior.”
Camilo-Robles,
151 F.3d at 6-7 .
38
*127
Supervisors are not vicariously liable for the constitutional violations perpetrated by “subordinates.”
Carmona v. Toledo,
215 F.3d 124, 132 (1st Cir.2000). Nonetheless, supervisors may violate the constitutional rights of a third party by “formulatpng] a policy or engaging] in a practice that leads to a civil rights violation [of the third party] committed by another.”
Camilo-Robles,
151 F.3d at 7 . To be actionable as a constitutional violation, the offending conduct of the supervisor must manifest, at a minimum, a deliberate indifference to the constitutional rights of the third party.
Id.
To plead deliberate indifference, a plaintiff must allege “(1) a grave risk of harm; (2) the defendant’s actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address the risk.”
Id.
A supervisor cannot be faulted for having failed to “take easily available measures to address the risk” of harm posed by the subordinate unless the supervisor actually “had the power and authority to alleviate” the underlying constitutional violation.
Id.
(quoting
Maldonado-Denis v. Castillo-Rodriguez,
23 F.3d 576, 582 (1st Cir.1994)). In other words, “the plaintiff must ‘affirmatively connect the supervisor’s conduct to the subordinate’s violative act or omission.’ ”
Id.
(quoting
Maldonado-Denis,
23 F.3d at 582 ). The affirmative connection includes a “knowing sanction” of the rights-violating conduct, but may also encompass “tacit approval of, acquiescence in, or purposeful disregard of’ such conduct. Id.
39
A supervisor’s deliberate indifference to the rights of third parties may occur in a variety of circumstances. In
Camilo-Robles v. Zapata,
175 F.3d 41, 44 (1st Cir.1999), for example, the First Circuit explained that “liability [for violation of constitutional rights] attaches if a responsible official supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation.” Other courts have found conduct on the part of supervisory law enforcement officials to be deliberately indifferent to the constitutional rights of citizens where a supervisor permitted a reinstated officer to carry a weapon without reviewing the officer’s record,
40
failed to exercise his discretion to keep a violent police officer assigned to a desk job
*128
to ensure that the violent officer would not come into contact with the public,
41
formulated rules likely to result in a subordinate’s unjustifiably shooting a citizen,
42
and knowingly failed to remedy subordinates’ pattern of dangerous or unconstitutional conduct.
43
With the foregoing principles in mind, I turn now to the question of whether Fitzpatrick, Greenleaf, Kennedy, Morris, and Ring were deliberately indifferent to the substantive due process right of McIntyre not to be murdered by the government. As explained above, the allegations in this case support the conclusion that the ,ipur-der of McIntyre was government action because Connolly participated in the murder by disclosing McIntyre’s informant status to Bulger and Flemmi.
Kennedy.
Despite the enumeration of wrongs that Kennedy and the other defendants allegedly committed,
see, e.g.,
Compl. ¶ 427, the plaintiffs have not alleged conduct by Kennedy that would support a conclusion that he was deliberately indifferent to the substantive due process rights of McIntyre. The allegations concerning Kennedy’s conduct, prior to McIntyre’s death, essentially amount to the following. • Kennedy knew that Bulger and Flemmi were informants for the FBI, and that Connolly was their handler. As early as 1983, Kennedy had some knowledge of the criminal activities of Bulger and Flemmi. In violation of the Guidelines, Kennedy did not share this information with the,DEA or attorneys prosecuting cases involving crimes committed by Bulger and Flemmi. Kennedy also knew that McIntyre was cooperating with law enforcement agencies investigating Bul-ger’s role in illegal arms shipments to the IRA. In October 1984, Kennedy interviewed McIntyre and discovered that McIntyre had information incriminating Bulger and Flemmi in the Valhalla arms shipments. Kennedy reported McIntyre’s revelations to Greenleaf.
There are no allegations to support an inference that. Kennedy knew or should have known of the risk Connolly posed to the safety of McIntyre. To be sure, one may infer that Kennedy knew that Bulger and Flemmi were violent criminals, and that McIntyre faced danger by agreeing to cooperate. The danger that McIntyre as
*129
sumed, however, inheres in the role of an informant. Indeed, according to the complaint, McIntyre knew the implications of cooperating— in fact, he was “petrified” of Bulger and Flemmi. Compl. ¶247. The danger in incriminating Bulger and Flemmi was a risk McIntyre faced regardless of whether Bulger and Flemmi were informants for the FBI. McIntyre did not have a constitutional right to be free from this risk; so there was no right, based on the risk alone, to which Kennedy could have been deliberately indifferent.
Further, even assuming that Kennedy did have knowledge of Connolly’s rights-violating conduct, the plaintiffs have not alleged that Kennedy failed to take measures easily available to him to prevent that conduct. The complaint is devoid of any indication that Kennedy had formal or informal authority over Connolly. The plaintiffs group Kennedy together with all of the other agents in alleging that the agents failed properly to supervise Connolly (ie., failed to train him in the requirements of the Guidelines, failed to enforce the Guidelines, permitted Connolly to be the handler of Bulger and Flemmi when it was apparent he should have been removed from that position). I must, however, read the complaint in its entirety, and the more specific allegations concerning Kennedy belie any allegation that his conduct amounted to a “failure” to change the course of Connolly’s conduct or even that he had the “power and authority,”
Camilo-Rohles,
151 F.3d at 7 , to do so.
44
Because the plaintiffs have failed to plead deliberate indifference on the part of Kennedy, Kennedy is entitled to the defense of qualified immunity as to the plaintiffs’ allegations that he violated the substantive due process rights of McIntyre.
Some additional comments words about the plaintiffs allegations concerning the conduct of Kennedy are in order here.
45
As stated above, I premise my analysis of the liability of the agents on the notion that Connolly’s act of revealing McIntyre’s informant status to Bulger and Flemmi transformed the murder of McIntyre from private violence into government action subject to the strictures of the Due Process Clause. The plaintiffs’ claims point to another theory of government action, the viability of which I do not consider in this memorandum and order. This theory, in substance, is that the murder of McIntyre was government action because the acts and omission of the agents with respect to Bulger and Flemmi enabled and emboldened Bulger and Flemmi to murder McIntyre.
46
Under this theory, a determination of whether an agent violated the substantive due process rights of McIntyre would not be limited to an analysis of his acts and omissions with respect to Connolly’s disclosure of confidential law enforcement information. Instead, each agent
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would be deemed to have violated McIntyre’s substantive due process rights to the extent that the conduct of the agent enabled and emboldened Bulger and Flemmi to murder McIntyre.
Even if I were to apply this theory here, I would still find that the plaintiffs have not alleged that Kennedy violated the substantive due process rights of McIntyre. Regardless of the theory of government action advanced by the plaintiffs, the objectionable conduct must meet the conscience-shocking test. The plaintiffs do not allege facts that support an inference that Kennedy acted with an intent to injure McIntyre. I noted earlier that the allegations also do not support an inference that Kennedy acted with deliberate indifference with respect to Connolly’s violation of McIntyre’s rights. Likewise, the allegations are insufficient to support an inference that Kennedy acted with deliberate indifference by extending his own protection to Bulger and Flemmi, thereby violating the substantive due process rights of McIntyre. The plaintiffs merely allege that, in 1983, Kennedy allegedly violated the Guidelines when he did not inform the DEA that he had obtained information regarding Bulger’s criminal activities in a matter of-concern to the DEA.
See
Comp. ¶ 251. Any causal connection between this single act and the murder of McIntyre is simply too attenuated reasonably to support an inference of deliberate indifference by reason of Kennedy’s protection of Bulger and Flemmi. Finally, Kennedy’s ability to assist McIntyre directly was limited. Kennedy did not need to warn McIntyre that he assumed a danger in agreeing to incriminate Bulger and Flemmi. As noted above, McIntyre knew there was a risk in informing on Bulger and Flemmi. Kennedy was not at liberty to reveal the informant status of Bulger and Flemmi to McIntyre, and there is nothing in the complaint to support an inference that Kennedy knew or should have known that Connolly would reveal or had revealed McIntyre’s informant status to Bulger and Flemmi.
In sum, neither of the plaintiffs’ theories of government action are sufficient to pierce Kennedy’s shield of qualified immunity. The alleged misconduct of Kennedy was not conduct intended to injure McIntyre; nor do the allegations suggest deliberate indifference. With “liability for negligently inflicted harm” being “categorically beneath the threshold of constitutional due process,”
County of Sacramento,
528 U.S. at 848, 118 S.Ct. 1708 , (and I express no opinion here as to whether the plaintiffs have alleged negligence by Kennedy), the conduct of Kennedy does not “shock the judicial conscience,”
Cruz-Erazo v. Rivera-Montanez,
212 F.3d 617, 623 (1st Cir.2000).
Fitzpatrick, Greenleaf, and Ring.
At the time that McIntyre was murdered, Greenleaf was the SAC of the FBI Boston Office and Fitzpatrick was the ASAC. Ring was the chief of the Organized Crime Squad. Thus, all three agents had formal supervisory responsibility for Connolly. The plaintiffs have adequately alleged that Fitzpatrick, Greenleaf, and Ring knew or should have known that Bulger and Flemmi committed acts of violence after becoming FBI informants, and that Bulger and Flemmi had a history of murdering persons— including persons providing information to law enforcement agencies concerning the criminal activities of the Winter Hill Gang. The plaintiffs also have adequately alleged that Fitzpatrick, Greenleaf, and Ring knew or should have known that Connolly did not observe the Guidelines, that the relationship between Connolly, Bulger, and Flemmi was corrupt, and that Connolly was sharing confidential law enforcement information with Bulger and Flemmi. In light of these allegations and reasonable
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inferences from them, I conclude that Fitzpatrick, Greenleaf, and Ring had actual or constructive knowledge of the risk Connolly posed to the constitutional rights of informants who incriminated Bulger or Flemmi, including McIntyre. By virtue of the formal supervisory authority of Fitzpatrick, Greenleaf, and Ring over Connolly, their alleged failure adequately to supervise Connolly— including failing to train Connolly, failing to enforce to the Guidelines, and permitting Connolly to continue as the handler of Bulger and Flemmi— adequately identifies a failure to take easily available measures to alleviate that risk. Thus, the plaintiffs have alleged deliberate indifference that violated McIntyre’s substantive due process rights on the part of Fitzpatrick, Green-leaf, and Ring.
Morris.
The plaintiffs have adequately alleged that Morris was deliberately indifferent to the rights of McIntyre. During the time that Morris was the direct supervisor of Connolly, he participated in, or had actual or constructive knowledge of, Connolly’s disclosure to Bulger and Flemmi of the informant status of certain persons who were subsequently murdered by Bulger or Flemmi, including McIntyre. Although Morris ceased to be Connolly’s formal supervisor in December 1982, Morris maintained his corrupt relationship with Connolly, Bulger, and Flemmi. The same year that McIntyre was murdered, for example, Morris provided Connolly with confidential law enforcement information to pass on to Bulger and Flemmi.
See
Comp. ¶¶ 239, 241. From (1) Morris’s role in and/or knowledge of the manner in which Connolly, Bulger and Flemmi had responded in the past to threats of exposure posed by the cooperation with law enforcement agencies of associates of Bulger and Flemmi; and (2) Morris’s continued involvement with Bulger and Flemmi, including the sharing of confidential law enforcement information with them, one may reasonably infer that Morris knew of and had the power to prevent the unconstitutional conduct of Connolly. I conclude, then, that the plaintiffs have adequately alleged that Morris acted with deliberate indifference to the substantive due process rights of McIntyre.
A conclusion that the plaintiffs have alleged deliberate indifference to the rights of McIntyre on the part of Fitzpatrick, Greenleaf, Morris, and Ring does not, however, completely preclude a qualified immunity defense. As with the conduct of Connolly, the alleged misconduct of Fitzpatrick, Greenleaf, Morris, and Ring cannot have violated the substantive due process rights of McIntyre unless it shocks the conscience. In determining whether the alleged misconduct of Connolly was conscience-shocking, I considered whether his conduct was “intended to injure in some way unjustifiable by any government interest,” which is “the sort of official action most likely to rise to the conscience-shocking level.”
County of Sacramento,
523 U.S. at 849 , 118 S.Ct. 1708 . While it is clearly reasonable to infer from the plaintiffs’ allegations that Connolly acted with an intent to injure McIntyre, that same inference is not as obvious with respect to the allegations against Morris, and even less obvious with respect to Fitzpatrick, Greenleaf, and Ring.
Nonetheless, something less than conduct intended to injure can satisfy the conscience-shocking test. Executive conduct taken in “deliberate indifference” may shock the conscience when it was “practical” for the government official to have actually deliberated prior to taking the offending course of action.
Id.
at 851 , 118 S.Ct. 1708 ;
see also id.
at 853, 118 S.Ct. 1708 (“When ... opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.”);
cf. id.
at 854 , 118 S.Ct. 1708 (holding the
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“deliberate indifference” standard inapplicable to a high-speed police pursuit). The alleged misconduct of Fitzpatrick, Green-leaf, Morris, and Ring consists generally of a failure to supervise Connolly; this conduct is of the sort where “actual deliberation is practical.”
See id.
at 850 n. 10, 118 S.Ct. 1708 (noting that the Court “ha[d] employed deliberate indifference as a standard of culpability sufficient to identify a dereliction as reflective of municipal policy and to sustain a claim of municipal liability for failure to train an employee who causes harm by unconstitutional conduct for which he would be individually liable”);
Shrum ex rel. v. Kluck,
249 F.3d 773, 779 (8th Cir.2001) (“[I]n some circumstances, official policy that is deliberately indifferent to unconstitutional conduct may satisfy the ‘shocks the conscience’ standard required by
[County of Sacramento v.] Lewis.”).
Thus, I may gauge whether the conduct of Fitzpatrick, Greenleaf, Morris, and Ring was conscience-shocking by applying a test of deliberate indifference. Because this is the very standard I employed above to determine whether the conduct of these agents violated a fundamental right of McIntyre, I need not consider the question anew for the purpose of determining whether their conduct was conscience-shocking. Thus the conclusion: the alleged misconduct of Fitzpatrick, Greenleaf, Morris, and Ring was deliberately indifferent and therefore conscience-shocking.
47
One more step remains before I may conclude that Fitzpatrick, Greenleaf, Morris, and Ring are not entitled to qualified immunity on their motions for judgment on the pleadings. Because I am analyzing the conduct of these agents under a theory of supervisory liability, I must consider whether the theory of supervisory liability on which the plaintiffs rely was clearly established at the time of the relevant conduct.
Camilo-Robles,
151 F.3d at 6 . This is not a difficult analysis. It was clearly established in 1984 that an official can violate the rights of a private citizen by failing to supervise his subordinates adequately.
See, e.g., Rizzo v. Goode,
423 U.S. 362, 373-74 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976) (discussing
Hague v. CIO,
307 U.S. 496 , 59 S.Ct. 954 , 83 L.Ed. 1423 (1939), and pointing out that in
Hague
“the pattern of police misconduct upon which liability and injunctive relief were grounded was the adoption and enforcement of deliberate policies by ... defendants .... including the Mayor and the Chief of Police”);
Davis v. Zahradnick,
600 F.2d 458 , 459 n. 1 (4th Cir.1979) (“By alleging and swearing that [the prison warden] had neglected his duty to supervise and control the prison guards, [the plaintiff] proceeded upon a proper theory of § 1983 liability, and not upon the discredited [r]espondeat superior doctrine.”);
Dimarzo v. Cahill,
575 F.2d 15 , 17-18
&
n. 2 (1st Cir.1978);
Byrd v. Brishke,
466 F.2d 6, 11 (7th Cir.1972) (“[A] police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence
or otherwise within his knowledge.
That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction misfeasor officers are committed.” (emphasis added));
Delaney v. Dias,
415 F.Supp. 1351, 1354 (D.Mass.1976).
The allegations against Fitzpatrick, Greenleaf, Morris, and Ring reasonably permit' the inference that, through their conduct vis-a-vis Connolly’s violation of McIntyre’s clearly established substantive due process right not to be murdered by
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or with the aid of government agents, Fitzpatrick, Greenleaf, Morris, and Ring themselves were deliberately indifferent to the substantive due process rights of McIntyre, and that this deliberate indifference was conscience-shocking. Moreover, it was clearly established at the time of the murder that the agents could be held liable to the plaintiffs based on the agents’ dereliction of their supervisory responsibilities. Thus, Fitzpatrick, Greenleaf, Morris, and Ring are not entitled to the defense of qualified immunity with respect to allegations that they violated the substantive due process rights of McIntyre.
E. Access to the Courts
The agents have moved to dismiss the plaintiffs’
Bivens
claims that the agents conspired to deprive them of their right under the First and Fifth amendments to access to the courts. Compl. Count XII. The agents argue that these claims fail to meet the pleading requirements for a claim of denial of access to the courts, as set forth in the Supreme Court’s decision in
Christopher v. Harbury,
536 U.S. 403 , 122 S.Ct. 2179 , 153 L.Ed.2d 413 (2002). Specifically, the agents argue that the denial of access conspiracy claims are insufficiently pleaded because the complaint fails to allege (1) a valid underlying claim upon which the Estate was denied access to the courts; (2) that the object of the agents’ conspiracy was to deprive the Estate of its right of access to the courts; and (3) a remedy unique to the denial of access claim and unavailable on any other claim.
In
Harbury ,
the Supreme Court set forth the elements of a backward-looking denial of access claim of the kind involved here. 536 U.S. at 415-16, 122 S.Ct. 2179 . First, the allegations of the complaint must be sufficient to identify a “non-frivolous,” and “arguable” underlying claim that the plaintiffs would have brought had it not been for the alleged denial of access.
Id.
at 415 , 122 S.Ct. 2179 . The complaint must also describe the official acts that denied access.
Id.
Next, the complaint must identify a remedy that may be awarded that is unique to the denial of access claim.
Id.
That is to say, the remedy must be unavailable in any suit that may yet be brought.
Id.
Both the underlying claim and the unique remedy must be set out in the complaint in a manner sufficient to give fair notice to the defendant.
Id.
at 416 , 122 S.Ct. 2179 . In addition to meeting the
Harbury
requirements, plaintiffs asserting a conspiracy to deny access to the courts must also allege that the object of the conspiracy was either (1) unlawfully to deprive the plaintiffs of their right of access to the courts; or (2) to achieve some lawful aim by depriving the plaintiffs of access to the courts.
See Earle,
850 F.2d at 844 .
In count XII of the complaint, the plaintiffs allege that Ahearn, Connolly, Fitzpatrick, Greenleaf, Kennedy, Morris and Ring “conspired and confederated together to deny the [plaintiffs’] Estate its clearly established right to seek redress of grievances.” Compl. ¶ 467. The plaintiffs claim that the conspiracy “resulted] in lost damages.”
Id.
The plaintiffs do not make any other allegations concerning the damages resulting from the alleged conspiracy. As I explained in
Estate of Halloran v. United States,
268 F.Supp.2d 91, 97 (D.Mass.2003), this vague claim for damages does not meet the
Harbury
requirement of pleading damages unique to the access to the courts claim in a manner “sufficient to give fair notice to” the agents. 536 U.S. at 416, 122 S.Ct. 2179 . This alone vitiates the plaintiffs’ claim based on denial of access to the courts. Therefore, I need not address whether the plaintiffs have otherwise stated a claim for denial of access to the courts or whether the right was clearly established at rele
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vant times. Accordingly, the motions of Ahearn, Connolly, Fitzpatrick, Greenleaf, Kennedy, Morris, and Ring for judgment on the pleadings are hereby GRANTED as to count XII of the complaint.
IV. CONCLUSION
For the reasons discussed above, I hereby order that the motions listed below be disposed of as follows:
Ahearn’s motion for judgment with prejudice on the pleadings (docket entry 293) is GRANTED;
Connolly’s motion to dismiss or for. judgment on the pleadings on all counts of the complaints asserted against him (docket entry 306) is DENIED as to count X and GRANTED as to counts IX, XI, and XII;
Fitzpatrick’s motion to dismiss for lack of jurisdiction by reason of failure to state a constitutional claim which defeats defendant’s defense of qualified immunity (docket entry 299) is DENIED as to count X and GRANTED as to counts IX, XI, and XII;
Greenleafs motion for judgment with prejudice on the pleadings (docket entry 296) is DENIED as to counts X and XA and GRANTED as to counts IX, XI, and XII;
Kennedy’s motion for judgment on the pleadings (docket entry 303) is GRANTED; and,
Ring’s motion for judgment on the pleadings on the basis of qualified immunity (docket entry 297) is DENIED as to counts X and XA and GRANTED as to counts IX, XI, and XII.
I also rule that Morris is entitled to judgment on the pleadings as to counts IX, XI, and XII.
SO ORDERED.
1
. Two of these
counts
are labeled “count
X";
I will refer to the second of the two as “count XA.” Because count XIII is a request for attorneys' fees, I consider it to be a prayer for relief rather than the assertion of a cause of action.
2
. Richard F. Bates, Dennis F. Creedon, Thomas J. Daly, and Lawrence Sarhatt.
3
. In March 2004, by docket orders in this case, I granted Morris's motion to join the motion of the individual defendants, but did not issue an order with regard to whether he was entitled to qualified immunity.
4
. In his motion for judgment on the pleadings, based on qualified immunity, Connolly also moved for judgment on the ground that the plaintiffs’ claims are time-barred. On March 24, 2004, I denied the motions of Ah-earn, Fitzpatrick, Greenleaf, Kennedy, and Morris for judgment on the pleadings based on the statute of limitations (docket entry 334). I did not dispose of Connolly's motion in that order, because he had moved for judgment on the pleadings based on more than one ground. Nonetheless, my ruling set forth in the March 24, 2004 order, that the
Bivens
claims in this action survive a statute of limitations defense, on a motion under Rule 12(c), applies to Connolly's motion as well. Thus, to the extent Connolly moves for judgment on the pleadings, on the ground that the plaintiffs' claims are time-barred, his motion is DENIED.
5
. The plaintiffs identify Fitzpatrick simply as a "special agent” rather than as a special agent in the supervisory role of an ASAC. In his answer, however, Fitzpatrick admits by implication that he was an ASAC in the FBI Boston Office, and that he had some supervisory responsibility over the McIntyre matter at the time of McIntyre's murder.
See
Fitz. Answer ¶ 257(c) ("Fitzpatrick says that after McIntyre's disappearance the entire matter was taken away from him by Greenleaf
and assigned to a different ASAC.”
(emphasis added)); Fitzpatrick's admission is consistent with the findings in
United States v. Salemme, 91
F.Supp.2d 141, 225
(D.Mass.1999)
(Wolf, J.) (identifying Fitzpatrick as the FBI Boston Office ASAC in 1984 "with responsibility for relations with the DEA”),
rev’d in part on other grounds by United States v. Flemmi, 225
F.3d 78 (1st Cir.2000),
cert. denied,
531 U.S. 1170 , 121 S.Ct. 1137 , 148 L.Ed.2d 1002 (2001). It is appropriate for me to consider the information from
Salemme
in ruling on these motions for judgment oh the pleadings.
See, e.g., Watterson
v.
Page,
987 F.2d 1, 3 (1st Cir.1993) ("Ordinarily ... any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden [in connection with deciding a
motion
under Rule 12(b)(6) ], unles

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2526256. Public record. Not legal advice.