Irish v. State of ME , 849 F.3d 521 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2173
BRITTANY IRISH, Individually and as Personal Representative of
the Estate of KYLE HEWITT, and KIMBERLY IRISH,
Plaintiffs, Appellants,
v.
STATE OF MAINE; STATE POLICE OF THE STATE OF MAINE; and
JOHN and/or JANE DOES, STATE POLICE OFFICERS 1-10,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
David J. Van Dyke, with whom Lynch & Van Dyke, P.A. was on
brief, for appellants.
Christopher C. Taub, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, was on brief, for appellees.
March 1, 2017
LYNCH, Circuit Judge. Plaintiffs Brittany and Kimberly
Irish (together, "the Irishes") brought this 42 U.S.C. § 1983action against Maine State Police officers after Anthony Lord, a
former boyfriend of Brittany Irish ("Irish"), broke into her
parents' home, fatally shot her boyfriend (Kyle Hewitt), shot and
grievously wounded her mother (plaintiff Kimberly Irish), abducted
her, and engaged in a shootout with Maine State Police officers
during which another individual was fatally shot.
The complaint alleges that Lord commenced this violent
rampage after and because a State Police officer left Lord a voice
message, which notified him that Irish had made a complaint about
Lord's serious violent crimes against her earlier, and then did
little more than ask Lord to come to the local State Police
barracks to be interviewed. The officer left Lord this message
despite Irish's explicit request that the State Police refrain
from doing so out of her fear that this action would incite further
violence from Lord. The timing of the events suggests that she
was correct in her fears. The complaint alleges that the Irishes'
losses "ar[o]se out of failures by Defendants to protect them from
dangers which Defendants themselves created."
On motion by the defendants, the district court
dismissed the Irishes' complaint at the 12(b)(6) stage, holding
that their factual allegations did not amount to a state-created
danger as would be necessary to maintain a substantive due process
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claim on these facts. The court heavily relied on Rivera v. Rhode
Island, 402 F.3d 27 (1st Cir. 2005), to explain its decision.1 The
court also found that qualified immunity shielded from liability
the ten unidentified State Police officers named as defendants.
We cannot conclude at this very early stage of the
proceedings that, in consequence of our decision in Rivera, the
plaintiffs either failed to state a substantive due process claim
or that the defendants are entitled to qualified immunity. All we
have are a bare-bones complaint and a 12(b)(6) motion. We have
many questions to which we would prefer to have answers. While
both of these issues can certainly be decided at the motion to
dismiss stage, see Wood v. Moss, 134 S. Ct. 2056, 2066 (2014);
Rivera, 402 F.3d at 31, they are often decided after some factual
development or at summary judgment, Plumhoff v. Rickard, 134 S.
Ct. 2012, 2017 (2014); DeShaney v. Winnebago Cty. Dep't of Soc.
Servs., 489 U.S. 189, 193 (1989). As to qualified immunity, we
1 In Rivera, fifteen-year-old Jennifer Rivera was shot dead the
day before she was scheduled to testify as an eyewitness in a
murder trial. For months preceding the trial, Rivera continually
received threats that she would be killed if she testified. When
she notified the police of the death threats, they repeatedly
"promised to protect her in order to secure her testimony." Id.
at 32. Rivera's estate brought suit against the police officers,
alleging that they had violated her substantive due process right
by creating the danger that she faced when they identified her as
a witness and took her witness statement while investigating the
murder. Id. at 37. We affirmed dismissal of this claim, noting
that "[b]oth are necessary law enforcement tools, and cannot be
the basis to impose constitutional liability on the state." Id.
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recognize the Supreme Court's admonitions that it is "an immunity
from suit rather than a mere defense to liability," and should
thus be decided early in litigation. Plumhoff, 134 S. Ct. at 2019(citation omitted). But we are reluctant to make law in the
absence of more facts. We thus send the case back to the district
court for some development of facts material to those issues.
We vacate the district court's ruling as to the
individual defendants and remand the case with instructions that
the parties be permitted to conduct discovery on relevant facts.
The discovery should include facts on whether there was any
departure from established police protocol or training on, inter
alia, the manner in which the police should notify the accused of
allegations filed against him or her; what exactly the State Police
officers knew about the risk that Lord posed to Irish and when
exactly they knew it; and what message they left for Lord. Whether
or not the officers followed proper procedure and how much they
knew about the attendant risks of leaving a casual voice message,
in turn, may bear on the questions of whether Irish has a due
process claim that can withstand a 12(b)(6) motion and whether the
officers are entitled to qualified immunity.
I.
We recite the facts as alleged in the Irishes' complaint
but note where key information is left wanting.
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Irish and Lord met through a mutual friend and carried
on an on-again, off-again relationship. Lord was a registered sex
offender when the two met and, in 2011, Irish obtained a Protection
from Abuse ("PFA") order against Lord for herself and for her son.
That two-year order expired in 2013. Although Irish had rekindled
a friendship with Lord in March 2015, that relationship took a
turn for the worse by the next month, when Lord began to
"threaten[] and harass[]" Irish and send her "explicitly sexual
communications." Irish notified the Bangor Police Department
("BPD") of Lord's behavior, and the BPD advised her to obtain
another PFA order against Lord. On or about July 6, 2015, Irish
began the process of obtaining that second order against Lord. In
July 2015, Irish was living with her boyfriend, Hewitt, with whom
she had had a second son the previous year.
On July 14, 2015, Irish met with Lord at a local food
store in Bangor, from which Lord abducted Irish and drove her to
Aroostook County. There, he repeatedly raped her, strangled her
with a seatbelt, and threatened to kill her. He specifically
threatened to kill Irish if she reported the crime. The next day,
on July 15, 2015, Irish submitted to a rape kit evaluation at her
local hospital and reported what had happened to the BPD. The BPD
referred her to the Maine State Police because the abduction and
sexual assaults had taken place in two different counties. The
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State Police requested that Irish drop off a written statement the
next day. No copy of the statement was appended to the complaint.
On July 16, 2015, Lord contacted Irish and asked her to
meet with him to "talk about what had happened." Irish advised
the State Police of this request. The complaint does not explain
how much information she provided to the State Police about her
encounter with Lord. During the same conversation with the State
Police, Irish also asked that she be permitted to meet with Lord,
in order to elicit a confession from him, while wearing a wire or
being monitored by a State Police officer. The State Police
refused, telling Irish that "that's not the way we do it." The
officers instead told her that they would call Lord, inform him of
Irish's accusations against him, and ask him to come to the local
State Police barracks to "give his side of the story." Irish asked
the State Police to refrain from doing so, pleading that "she was
afraid that that would incite Lord to terrible violence and that
she would not thereupon be safe." The complaint does not allege
that Irish withdrew her allegations.
Shortly thereafter, on the same day, unidentified
officers of the State Police contacted Irish and informed her that
they had left Lord a voice message advising him of Irish's criminal
complaint against him and asking him to come to the local barracks.
The record is silent on what exactly the message said.
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Approximately two hours later, Irish learned from her
father that her family's barn in Benedicta, Maine was on fire.
Immediately suspecting that Lord had set the fire, Irish reported
it to the State Police and began traveling, with Hewitt, to her
parents' Benedicta home. While meeting with two State Police
officers in Benedicta later that day, Irish received a phone call
from her brother's friend. That friend informed Irish that he was
at a bar and had learned from Lord's close friend there that "Lord
had received a voice mail from the State Police, had become
immediately incensed and agitated and had indicated that 'someone
was going to die tonight.'"
After receiving this call, Irish asked the two officers
for a member of the State Police to be sent to protect her and her
children overnight. The officers refused, saying that they could
not spare the manpower but that they would "keep an eye on the
situation." Irish's mother then asked if the officers could park
an empty police car outside of the Benedicta home overnight
"because she felt that that ruse, at least, would keep Lord away."
But the officers said that they also could not spare a car. Later
that evening, "several State Police cars were observed
approximately eleven miles away [from the Benedicta home]
'dumpster diving,' apparently looking for accelerant from the
Benedicta fire."
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In the early morning of July 17, 2015, Lord entered the
Benedicta home while Irish, Hewitt, and Kimberly Irish were
present. Lord shot and killed Hewitt, shot and grievously wounded
Kimberly Irish, and abducted Irish. With Irish in his car, Lord
engaged in a shootout with State Police and fatally shot another
person in the process. Lord was later apprehended.
On December 10, 2015, the plaintiffs brought suit
against the State of Maine, the State Police, and ten unidentified
State Police officers in the U.S. District Court for the District
of Maine. The complaint alleged in relevant part that the
defendants had violated the plaintiffs' substantive due process
rights by failing to protect them from Lord's violence after having
taken affirmative steps to increase the threat that Lord posed to
them.
The district court granted the defendants' motion to
dismiss, noting that the failure to protect against private
violence is not a cognizable violation of due process. Irish v.
Maine, 1:15-cv-00503-JAW, 2016 WL 4742233, at *8 (D. Me. Sept. 12,
2016). While the district court recognized the possible "state-
created danger" exception to this principle, it found that the
Irishes' complaint insufficiently alleged a state-created danger
under Rivera. Id. at *10-11. The court also noted that the
alleged conduct of the officers did not "shock the conscience,"
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id. at *11, and that the individual defendants were shielded by
qualified immunity, id. at *12.2
II.
The Fourteenth Amendment's Due Process Clause provides
that "[n]o State shall . . . deprive any person of life, liberty,
or property, without due process of law." U.S. Const. amend. XIV,
§ 1. As a general matter, "a State's failure to protect an
individual against private violence simply does not constitute a
violation of the Due Process Clause." DeShaney, 489 U.S. at 197.
But some circuit courts have recognized the "state-created danger"
exception to this rule based on language in DeShaney that
"suggested, but never expressly recognized, the possibility that
when the state creates the danger to an individual, an affirmative
duty to protect might arise." Rivera, 402 F.3d at 34–35 (citing
DeShaney, 489 U.S. at 201).3 At least eight sister circuits have
recognized the existence of the state-created danger theory. See
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 n.1 (9th Cir.
2006) (collecting cases). While this circuit has discussed the
2 The district court also dismissed all claims against the State
of Maine and the State Police on jurisdictional grounds. The
Irishes do not appeal these rulings.
3 The Rivera opinion observed the lack of clarity on whether
DeShaney's creation-of-danger language recognized a discrete
exception or whether that language was "simply in service of the
special relationship exception and provides a set of circumstances
where the state's actions might create a 'special relationship'
and thus a duty to protect." Rivera, 402 F.3d at 35 n.5.
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possible existence of the state-created danger theory, we have
never found it applicable to any specific set of facts.
In addition to alleging a sufficient state-created
danger, the plaintiff must meet "a further and onerous requirement"
to prove a substantive due process violation: "the state actions
must shock the conscience of the court." Rivera, 402 F.3d at 35.
To meet this standard, the state actions must be "so egregious, so
outrageous, that it may fairly be said to shock the contemporary
conscience." Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998). Although the circumstances of each case impact whether
the state action at issue meets this standard, "where actors have
an opportunity to reflect and make reasoned and rational decisions,
deliberately indifferent behavior may suffice." Rivera, 402 F.3d
at 36 (citing Lewis, 523 U.S. at 851–52). Finally, we "may elect
first to address whether the governmental action at issue is
sufficiently conscience shocking" before considering the state-
created danger element. Id.The Irishes argue that the officers' conduct in this
case both exacerbated the danger that Lord posed to them and was
sufficiently egregious to shock the conscience. Pointing to the
voice message, the Irishes argue that by contacting Lord over
Irish's objections and advising him of the allegations against
him, the officers "specifically created the peril" to the Irishes
with deliberate indifference for their safety.
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Defendants respond by first arguing that "trying to
interview a suspect who has been accused of a crime is standard
police practice," and thus that Rivera must control. See id. at
37. But this argument fails to take into account the manner in
which the officers tried to interview the suspect -- at the very
outset of the investigation, before any other precautions had been
taken, and despite being warned by the complainant about the
suspect's violent tendencies.
Defendants further contend that even if the officers'
actions violated Irish's constitutional rights, they must still be
shielded by qualified immunity because "[a]ny officer who reads
DeShaney and Rivera [wa]s going to come away understanding that it
[wa]s not a clearly established violation of Ms. Irish's due
process rights to leave a voicemail message with the alleged
perpetrator."
In our view, the bare-bones nature of the complaint and
the record at this early stage of litigation makes vacating the
appropriate course. To be sure, our concern is not that the State
Police sought to interview Lord for "his side of the story." Nor
is our concern that they identified Irish as the complainant.
After all, even had they not identified her by name, her identity
might have been clear to Lord, given the one-on-one nature of the
crime of rape. What we do question, however, is whether there are
standard police protocols that were violated when the officers
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decided not to be present when they alerted Lord to Irish's
allegations but instead opted to leave Lord a voice message on his
phone -- notwithstanding Irish's specific warning that such
notification would "incite Lord to terrible violence." Assuming
the voice message was left on Lord's cell phone, it is likely that
he received immediate notification and was left free to immediately
do violence. And given the timeline presented in Irish’s
complaint, the police had apparently not taken any prior steps to
evaluate Irish's allegations or Lord's propensity for violence
before leaving him the voice message. Or if they did, the actions
are not documented in the record.
Neither party at oral argument could provide any detail
on acceptable police procedures or training, if any, on how and
when to notify the accused of the allegations that have been filed
against him or her under similar circumstances. Our developing
caselaw in this area helps explain why we pause.
In Stamps v. Town of Framingham, 813 F.3d 27 (1st Cir.
2016), we denied qualified immunity to a police officer who had
accidentally shot and killed an elderly civilian after "pointing
his loaded assault rifle at the head of a prone, non-resistant,
innocent person who present[ed] no danger, with the safety off and
a finger on the trigger." Id. at 39–40. Concluding that a
reasonable officer would have known that such conduct constituted
excessive force in violation of the Fourth Amendment, we emphasized
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how the officer's decision to keep his finger on the trigger, to
keep his weapon "off safe" at all times, and to point the weapon's
muzzle at an innocent civilian's head, rather than in a safe
direction, all violated police rules, training, and basic firearm
safety procedures. Id. at 32–33.
Likewise, the violation of standard police protocols was
pertinent to our analysis in Marrero-Rodríguez v. Municipality of
San Juan, 677 F.3d 497 (1st Cir. 2012), a case in which we reversed
in part a district court's 12(b)(6) dismissal of a complaint
alleging substantive due process violations. Id. at 499. In that
case, the estate of a deceased police sergeant, Carlos Lozada,
brought suit after he was shot to death during a police training
session that simulated the arrest of a suspect. Id. at 500–01.
While Lozada played the role of a subdued suspect, lying prone on
the ground with another officer holding him down by his back, a
lieutenant walked into the simulation, declared that the training
was not being done "properly," pulled out his weapon, put the
barrel to Lozada's back, and pulled the trigger. Id. at 500.
Finding that the plaintiff's factual allegations were sufficient
to survive the motion to dismiss, we noted that the conduct of
this lieutenant had violated several protocols, which stated that
all officers must discharge their weapons in a sandbox before
entering the training area, that officers must use only "dummy
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guns" in the training facility, and that no firearms were to be
used during this particular training session. Id. at 500, 502.
The record here is devoid of any facts on whether the
State Police officers' decision to leave a voice message for Lord
-- despite Lord’s foreseeable violent reaction; despite the fact
that they were at the very outset of an investigation into
allegations of violent assault, rape, and threats to kill; and
without any effort to calm him down or prevent him from inflicting
harm -- was in line with police protocol and training.4 More
specifically, based on this record, we do not know the steps, if
any, that officers should take when they have reason to believe
that an alleged perpetrator is violent and is likely to retaliate
against a victim who reports such serious crimes. And as Stamps
and Marrero-Rodríguez illustrate, violation of protocol and
training is relevant both to the substantive due process and
qualified immunity inquiries.
Beyond the dearth of facts on police procedure and
training, the record also offers no facts on exactly what the
officers knew about the veracity of the allegations that Irish had
made, about Lord's propensity for violence, and about the risk
4 Cf. Kennedy, 439 F.3d at 1063 & n.3 (denying qualified
immunity to an officer who had told the alleged perpetrator about
complaints of child molestation against him, where the record
evidence made clear that officers had received training that the
best time to contact an offender is "[a]t the end of the
investigation" with "all [the] facts in order").
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that Lord would act on that propensity to harm Irish. We do not
know how much time the officers spent with Irish to go over her
written statement that Lord had strangled, raped, and repeatedly
threatened to kill her. We do not know whether the officers
contacted the local hospital for Irish's rape kit before alerting
Lord about her accusations. We do not know whether the State
Police had prior experience with Lord. We do not know whether the
officers ran Lord's name through the system to check if he had a
criminal record. (In fact, the complaint alleges that Lord is a
registered sex offender.) We do not know whether they reached out
to the BPD, which had referred Irish's case to the State Police.
(If they had done so, they might have learned that Irish had
obtained a PFA order against Lord and was in the process of
obtaining another one.) We do not know whether the voice message
was left on Lord's cell phone. We do not know whether the officers
made any attempt to find Lord after Irish reported that her
parents' barn had been set on fire and that he had told his friend
that "someone was going to die tonight" after receiving the
officers' message. We do not know if the officers felt they had
probable cause to arrest Lord but nonetheless chose only to leave
the voice message and, if so, the reasons for that decision.
All or some of the answers to these questions may be
pertinent to the substantive due process and qualified immunity
issues. If discovery reveals that the officers’ actions violated
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accepted norms of police procedure or that they acted despite
foreseeing the harm to Irish, it may strengthen the plaintiffs’
argument that the officers exacerbated the danger that Lord posed.
It may also directly speak to whether the officers acted in
deliberate indifference to Irish's safety, so much so that their
conduct shocks the conscience.
By contrast, if discovery reveals that no protocols were
violated, then the plaintiffs may have a harder time surviving a
12(b)(6) motion. While the fact that the officers did not take
further discretionary steps to ensure Irish's safety may amount to
negligence, mere negligence would be insufficient to maintain a
claim of substantive due process violation. See Cummings v.
McIntire, 271 F.3d 341, 344 (1st Cir. 2001) ("[N]egligent conduct
is 'categorically beneath the threshold of constitutional due
process . . . .'" (quoting Lewis, 523 U.S. at 849)). Similarly,
if no or few protocols were violated, then the officers’ chance of
successfully asserting qualified immunity may increase, as a
reasonable officer may not have known that acting in line with
their own standard procedures and training would violate a private
citizen’s constitutional rights. See Mlodzinski v. Lewis, 648
F.3d 24, 32 (1st Cir. 2011) (qualified immunity protects officers
from liability "insofar as their conduct does not violate clearly
established . . . constitutional rights of which a reasonable
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person would have known" (citation omitted)). But we cannot reach
any of these conclusions without a fuller development of the facts.
We vacate the district court's ruling as to the
individual defendants and remand the case with instructions for
discovery not inconsistent with this opinion. No costs are
awarded.
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