Welch v. City of Biddeford Police Dep't

United States Court of Appeals
For the First Circuit

No. 20-1474

JOCELYNE WELCH, as personal representative of the Estate of
Alivia Welch,

Plaintiff, Appellant,

SUSAN JOHNSON, individually and on behalf of her minor son B.L.
and on behalf of Derrick Thompson, deceased,

Plaintiff,

v.

CITY OF BIDDEFORD POLICE DEPARTMENT; ROGER P. BEAUPRE,
individually and as Chief of Biddeford Police Department; EDWARD
DEXTER, individually and as an employee of Biddeford Police
Department; JACOB WOLTERBEEK, individually and as an employee of
Biddeford Police Department; CITY OF BIDDEFORD; JANE DOES,

Defendants, Appellees,

MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually
and as Commissioner of Maine Department of Public Safety,

Defendants.

No. 20-1481

SUSAN JOHNSON, individually and on behalf of her minor son B.L.
and on behalf of Derrick Thompson, deceased,

Plaintiff, Appellant,

JOCELYNE WELCH, as personal representative of the Estate of
Alivia Welch,

Plaintiff,
 v.

CITY OF BIDDEFORD POLICE DEPARTMENT; ROGER P. BEAUPRE,
individually and as Chief of Biddeford Police Department; EDWARD
DEXTER, individually and as an employee of Biddeford Police
Department; JACOB WOLTERBEEK, individually and as an employee of
Biddeford Police Department; CITY OF BIDDEFORD; JANE DOES,

Defendants, Appellees,

MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually
and as Commissioner of Maine Department of Public Safety,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges,
and Laplante,* District Judge.

Kristine C. Hanly, with whom Sarah A. Churchill and Nichols
& Churchill, P.A. were on brief, for appellant Jocelyne Welch, as
personal representative of the Estate of Alivia Welch.
Kristine C. Hanly, with whom Hanly Law, LLC was on brief, for
appellant Susan Johnson, individually and on behalf of her minor
son B.L. and on behalf of Derrick Thompson, deceased.
Joseph A. Padolsky, with whom Douglas I. Louison and Louison,
Costello, Condon & Pfaff, LLP were on brief, for appellees.

August 27, 2021

* Of the District of New Hampshire, sitting by designation.
 LYNCH, Circuit Judge. On December 29, 2012, Alivia

Welch, Susan Johnson, and Derrick Thompson called the Biddeford,

Maine Police Department and reported that their landlord James

Pak, who lived in a house attached to their apartment, had just

made death threats to them. Police Officers Edward Dexter and

Jacob Wolterbeek responded to the call. On Officer Dexter's

instructions, Officer Wolterbeek left shortly after arriving.

We understand the key focus in the case is on what

Officer Dexter then did. Officer Dexter learned that Pak had told

the tenants he had a gun, and had threatened to shoot them and to

bury Thompson in the snow. When Officer Dexter went to speak with

him, the increasingly angry Pak started to describe what he was

going to do to get his name in the newspaper the following day but

stopped, saying to his wife he did not want to reveal those plans

to the officers. Pak then screamed at Officer Dexter that he had

"nothing to lose" and that "you're going to see me in the newspaper

tomorrow," and stated that there would be a "bloody mess." Officer

Dexter chose to leave at that point. He did so without

ascertaining whether Pak indeed had a gun or was drunkenly out of

control. Less than four minutes after Officer Dexter departed,

Pak carried out his threats, entered the tenants' apartment, shot

and killed Welch and Thompson, and shot and injured Johnson with

his gun.

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 Johnson, wounded in the shooting, and the estates

representing the murdered Welch and Thompson (collectively, the

"plaintiffs") filed suit, alleging inter alia that the officers

had violated their federal constitutional substantive due process

rights under the state-created danger doctrine.1 The district

court granted summary judgment to the defendants, choosing not to

address first the officers' qualified immunity defense that the

law was not clearly established. Johnson v. City of Biddeford,

454 F. Supp. 3d 75, 91 n.14 (D. Me. 2020). Instead it held that

no substantive due process claim had been presented. Id. at 91.

The district court did so before either it or the parties had the

benefit of our later decision in Irish v. Fowler, 979 F.3d 65 (1st

Cir. 2020) ("Irish II"). We now affirm in part and vacate and

remand in part.

I. Background

On reviewing the grant of defendants' motion for summary

judgment, we recite the facts in the light most favorable to the

plaintiffs. Irish II, 979 F.3d at 68. In doing so, we do not

suggest that these facts are sufficient to decide the substantive

due process issue, that all of them are material, or that all

material facts have been presented.

1 Johnson sued individually and on behalf of her six-year-
old son who was in the apartment at the time of the shooting.

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 In 2012 Susan Johnson and her son Derrick Thompson were

renting an apartment in Biddeford, Maine, from Armit and James

Pak. The apartment was attached to the Paks' home and shared a

driveway with the home. Alivia Welch, Thompson's girlfriend, was

also staying in the apartment.

On the evening of December 29, 2012, James Pak got into

an argument with Thompson outside the apartment. Pak screamed at

and made obscene gestures at the plaintiffs. He also threatened

to hit Thompson, pointed his fingers at the plaintiffs in the shape

of a gun and said "bang," and threatened to bury Thompson in the

snow. Thompson called the police and reported that his landlord

was "freaking out on him," making death threats towards him, and

pointing his finger at him like it was a gun. Johnson recorded

portions of this altercation on her cellphone.

Officers Dexter and Wolterbeek were dispatched to the

apartment. Officer Dexter arrived at the scene first and spoke to

the plaintiffs.2 They showed him the videos recorded that evening

of Pak screaming at them. The plaintiffs also told Officer Dexter

exactly the threats described before, including the threat to shoot

the plaintiffs and the threat to bury Thompson. The plaintiffs

warned Officer Dexter that once Pak had tried to follow Thompson

into the apartment after a confrontation. They said that they

2 Officer Dexter was wearing an audio recording device
which captured his interactions with the plaintiffs and the Paks.

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often had confrontations with Pak, but that this time was different

because Armit Pak, James Pak's wife, had not come over, as she

usually did, to apologize to them after Pak "freak[ed] out."

Johnson told Officer Dexter that her six-year-old son was in a

different room, as they were trying to keep him away from the

situation with Pak. Officer Wolterbeek arrived while Officer

Dexter was speaking with the plaintiffs and briefly spoke with Pak

in the driveway. He then went into the apartment and listened to

Officer Dexter's ongoing conversation with the plaintiffs.

Officer Dexter asked the plaintiffs what the biggest problem was

between them and the Paks. They responded that the current conflict

was about how many cars could be parked in the driveway under their

lease agreement. After stepping outside the apartment, Officer

Dexter told Officer Wolterbeek that he could leave.

Officer Dexter then went next door to speak to both of

the Paks. The doors to the Paks' home and the plaintiffs' apartment

are directly adjacent to each other, almost side-by-side. Armit

Pak explained that James Pak was angry with the plaintiffs about

the parking as well as other issues and that they were in the

process of evicting the plaintiffs. In describing to Officer

Dexter his conflicts with Thompson, Pak said that he told Thompson

he had a gun, would shoot him, and said "bang" to Thompson.

Officer Dexter repeatedly explained that he could not do

anything about the car parked in the driveway or the eviction as

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those were "civil issue[s]." He also repeatedly told Pak that

these civil issues would have to be handled through the courts,

that the court process would be difficult, and that the downside

of being a landlord in Maine is that "tenants in this state have

so many rights," which is frustrating for landlords. Officer

Dexter said several times that he "understood" or "felt sorry" for

the Paks.

Officer Dexter also told James Pak that he could not

physically threaten or threaten to shoot his tenants, that such

threats were a criminal offense, and that he could be issued a

criminal summons if he threatened his tenants again. Pak expressed

to Dexter frustration about this information. He asked why

Thompson could threaten him but he could not threaten Thompson.

Officer Dexter responded by saying that Thompson was just being

rude. He then stated that he understood how Thompson’s actions

upset Pak and that Thompson was being disrespectful to Pak. Later

in the conversation, Pak accused Thompson of calling him names and

said, “now I just don’t, I don’t have any rights?” In response,

Officer Dexter again told Pak that he understood his frustration

and apologized to Armit Pak for not having more "responses for

[her]." During the conversation, Pak repeatedly expressed

frustration to Officer Dexter that he felt like he had no rights,

but that his tenants had rights.

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 The recordings show Pak was angry throughout the

conversation and in the last three minutes raised his voice

increasingly often and was screaming or yelling. Pak twice told

Officer Dexter that he had "nothing to lose," yelled that he would

be a "big name tomorrow," and said that "you're going to see [him]

in the newspaper." Pak started describing what he was going to do

to get a big name and to be in the newspapers "tomorrow," but

stopped. Officer Dexter heard him say next to Armit Pak, "I'm not

going to tell you in front of [Officer Dexter]." Pak screamed at

Officer Dexter that the "least" he could do was tell the plaintiffs

not to park a third car in the driveway. At one of Pak's angriest

moments, seconds after Pak yelled that he was going to be "a big

name tomorrow" and screamed that Officer Dexter did not understand

Pak's situation, Officer Dexter said, "okay, I'm going to go now."

Officer Dexter then told Pak to keep his distance, and

Pak replied that Officer Dexter "d[id]n't have to worry about

that." The last thing Pak said as Officer Dexter left the house

was that "it's going to be a bloody mess."

Knowing that Pak told Thompson he had a gun and would

shoot him, Officer Dexter nonetheless chose not to ask Pak whether

he had any firearms or ammunition, nor did he search Pak for

weapons. Officer Dexter also chose not to ask Pak whether he had

consumed any alcohol or conduct a field sobriety test. The

officers who arrested Pak had "smelled the odor of intoxicants" on

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him.3 Officer Dexter said he was never within six feet of Pak and

did not smell the alcohol.

Officer Dexter then went back to speak to the plaintiffs

and told them that Pak was very upset and to avoid Pak for the

rest of the evening. Officer Dexter then chose to leave. He did

not mention to the plaintiffs the additional threats Pak had made.

Officer Dexter cleared the scene at 6:51 PM.

Immediately on Officer Dexter's leaving, Pak grabbed his

Smith & Wesson .357 revolver and entered the plaintiffs' apartment.

He shot twice and injured Johnson, then shot once and killed

Thompson and shot twice and killed Welch. At 6:55 PM, Johnson

called 911 to report what had just happened.

II. Procedural History

The plaintiffs filed complaints against the City of

Biddeford, the Biddeford Police Department, the Maine Department

of Public Safety,4 and Officers Dexter and Wolterbeek alleging,

inter alia,5 that the officers had violated their substantive due

3 When Pak was arrested, he had a blood alcohol level of
.15, roughly twice the legal limit. After Pak's arrest, Armit Pak
reported that Pak had been drinking beer "all day."
4 The parties stipulated to dismissing with prejudice all
claims against the Department of Public Safety and its
Commissioner. Johnson, 454 F. Supp. 3d at 81 n.2.
5 The complaints also alleged negligence, negligent
infliction of emotional distress, intentional infliction of
emotional distress, assault and battery, wrongful death, civil
conspiracy, breach of quiet enjoyment under Maine law, and a claim

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process rights under the state-created danger doctrine. The

plaintiffs also brought Monell claims against the Biddeford Police

Chief Roger Beaupre and the City of Biddeford and claims under the

Maine Civil Rights Act against the officers. See Monell v. Dep't

of Soc. Servs., 436 U.S. 658 (1978); Me. Rev. Stat. Ann., tit. 5,

§ 4682(1-A). After discovery, the defendants moved for summary

judgment.

The district court granted the defendants' motion for

summary judgment on all claims. Johnson, 454 F. Supp. 3d at 95.

Relying only on its conclusion that the officers had taken no

affirmative act greatly increasing the danger to the plaintiffs,

it held that there had been no substantive due process violation.

Id. at 91. It did not address whether the law was "clearly

established" for the purposes of the second part of the qualified

immunity inquiry.6 Id. at 91 n.14. As to the Monell and Maine

Civil Rights Act claims, the district court concluded that because

under 42 U.S.C. § 1985.
The district court granted summary judgment to the
defendants on all of these claims. Johnson, 454 F. Supp. 3d at
92-95. The plaintiffs make no argument in their opening briefs as
to any of these claims and any such argument is waived. See, e.g.,
Págan-Lisboa v. Soc. Sec. Admin. 996 F.3d 1, 7 (1st Cir. 2021).
6 Police officers "are entitled to qualified immunity
under § 1983 unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct
was 'clearly established at the time.'" Dist. of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)).

- 10 -
the officers had not violated the plaintiffs' constitutional

rights, those claims failed. Johnson, 454 F. Supp. 3d at 92.

III. Analysis

The Fourteenth Amendment's Due Process clause states

that "[n]o State shall . . . deprive any person of life, liberty,

or property, without due process of law." U.S. Const. amend. XIV,

§ 1. In general, the state's failure to protect an individual

from private harm does not give rise to a due process claim.

DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189,

197 (1989). As the law has developed since 1989, this circuit

joined other circuits in Irish II in recognizing that a plaintiff

may make out a due process claim under the state-created danger

doctrine by showing

(1) that a state actor or state actors
affirmatively acted to create or enhance a
danger to the plaintiff;
(2) that the act or acts created or enhanced
a danger specific to the plaintiff and
distinct from the danger to the general
public;
(3) that the act or acts caused the
plaintiff's harm; and
(4) that the state actor's conduct, when
viewed in total, shocks the conscience.

979 F.3d 65, 75 (1st Cir. 2020).

The plaintiffs present several arguments that various

acts taken by Officers Wolterbeek and Dexter were affirmative acts

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that enhanced the danger to them.7 We affirm the district court's

decision that Officer Wolterbeek took no affirmative act that

enhanced the danger to the plaintiffs. We see no evidence in the

record that any of Officer Wolterbeek's actions increased any

danger to the plaintiffs. The plaintiffs also do not explain how

any of Officer Wolterbeek's actions, on their own, could give rise

to a state-created danger claim. Officers are not liable under

§ 1983 for the actions of other officers. See Leavitt v. Corr.

Med. Servs., Inc., 645 F.3d 484, 502 (1st Cir. 2011); see also

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating that in § 1983

cases, the plaintiff must show that "each Government-official

defendant, through the official's own individual actions, has

violated the Constitution").

As to Officer Dexter, we are disinclined given the

changes in the law to ourselves decide the merits of the

substantive due process claim. As previously stated, the parties

did not have the benefit of Irish II in conducting their discovery

and presenting evidence in this case. Nor did the district court

have the benefit of that opinion, which clarified this circuit's

law and now must be applied. Irish II is pertinent in at least

three important senses and all three lead us to conclude that a

remand is appropriate here. See Gastronomical Workers Union Loc.

7 We do not address Welch's arguments that the decisions
not to charge or arrest Pak were affirmative acts.

- 12 -
610 v. Dorado Beach Hotel, 617 F.3d 54, 66 (1st Cir. 2010)

(remanding when intervening precedent meant that district court

"did not engage in the requisite analysis"); United States v.

Taylor, 532 F.3d 68, 70 (1st Cir. 2008) (remanding for

reconsideration where a decision "on the present record would not

fully actualize" the intervening developments in the law).

First, Irish II established that the first prong of the

state-created danger claim is whether a state actor's affirmative

act "created or enhanced" a danger to the plaintiffs. Irish II,

979 F.3d at 75. Without the benefit of our decision, the district

court held, contrary to Irish II, that under the state-created

danger doctrine an affirmative act must "greatly" enhance the

danger to the plaintiffs, rather than simply "enhance" the danger.

Compare Johnson, 454 F. Supp. 3d at 85, with Irish II, 979 F.3d at

75.

Second, Irish II recognized that, "[w]here officials

have the opportunity to make unhurried judgments, deliberate

indifference may shock the conscience, particularly where the

state official performs multiple acts of indifference to a rising

risk of acute and severe danger." 979 F.3d at 75. This holding

may bear on both the parties' argument and the district court's

analysis.

Finally, Irish II established the relevance of state and

national policing policies to the state-created danger analysis.

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It explained that "[a] defendant's adherence to proper police

procedure bears on all prongs of the qualified immunity analysis,"

including whether an officer's conduct shocked the conscience and

whether a reasonable officer "would have believed that his conduct

violated the Constitution." Id. at 77 (quoting Stamps v. Town of

Framingham, 813 F.3d 27, 32 n.4 (1st Cir. 2016)). The parties

have presented little evidence as to police standards and training

in handling disputes between neighbors or landlords and tenants.8

Such evidence may well be important to the disposition of the case.

For example, officers are sometimes required to do more than

Officer Dexter did here when credible death threats are made in a

domestic violence context. See Irish II, 979 F.3d at 72

(explaining that Maine State Police are required to "use all

reasonable means to prevent further abuse" including "[r]emaining

on the scene [of a domestic violence incident for] as long as the

officer reasonably believes there is a danger to the physical

safety of that person without the presence of a law enforcement

officer." (quoting Me. Stat. tit. 19-A, § 4012(6)) (alterations in

8 The record states that Officer Dexter was trained on how
to deal with landlord/tenant disputes, but does not explain the
content of that training.
There is also evidence in the record as to several
Biddeford Standard Operating Procedures, including the Biddeford
Police Department policy which requires officers "to take action
to assist persons who are exhibiting symptoms of deviant behavior
and appear to represent an imminent danger to themselves or to
someone else."

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original)). There may be an analogous duty in cases such as this

one.

We make no determination as to whether the plaintiffs

may prevail on any of the prongs of the Irish II state-created

danger test. Indeed, it would be premature to reach the "shocks

the conscience" prong, as we here address only the district court's

error in evaluating the danger-enhancing prong. Nor do we suggest

that an officer leaving the scene on different facts would amount

to or contribute to an affirmative act that created or enhanced

the danger to others. Our narrow decision to remand, however, is

consonant with the rulings of other federal courts in state-created

danger cases. See, e.g., Martinez v. City of Clovis, 943 F.3d

1260, 1273 (9th Cir. 2019) (holding that officer's conduct of

praising domestic violence abuser as good people in the abuser's

presence after officer refused to arrest abuser following

plaintiff's domestic violence complaint supported plaintiff's

§ 1983 substantive due process claim under the state-created

danger theory; officer's alleged positive remarks could reasonably

have emboldened abuser to continue abusing plaintiff); id. at 1272

(holding that reasonable jury could find officer violated

plaintiff's substantive due process rights under state-created

danger theory where officer "provoked" and "emboldened" domestic

abuser by disclosing to abuser plaintiff's "testimony relating to

[] prior abuse and also stat[ing] that [plaintiff] was not 'the

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right girl' for him"); Mackie v. Cnty. of Santa Cruz, 444 F. Supp.

3d 1094, 1105-07 (N.D. Cal. 2020) (holding that plaintiffs had

adequately pled a state-created danger claim where officer's

interaction with plaintiffs' neighbor regarding plaintiffs'

previous complaints about the neighbor left the neighbor "in an

agitated state" and neighbor subsequently attacked plaintiffs);

Lipman v. Budish, 974 F.3d 726, 746 (6th Cir. 2020) (interviewing

abused child in front of possible abusers was affirmative act that

could give rise to state-created danger claim); McClammy v.

Halloran, No. CV-18-68-GF-BMM, 2019 WL 4674462, at *3 (D. Mont.

2019) (holding that there was a genuine issue of material fact as

to plaintiff's state-created danger claim where plaintiff argued

officers had "increased her risk of harm by 'stoking [her abuser's]

anger' during their investigation").

In these circumstances, it is fairer to all concerned to

remand to the district court in light of this opinion. This

decision makes no new law and does not expand the state-created

danger doctrine; it is simply a remand for consideration of the

factors identified above. We make no factual findings, and our

holding is based on legal error under Irish II. The district court

may in its discretion permit additional discovery in light of the

clarification provided by Irish II. The district court should

address on remand whether Officer Dexter is entitled to qualified

immunity and may choose to address the second step of the qualified

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immunity inquiry before addressing whether Officer Dexter violated

the plaintiffs' substantive due process rights under the state-

created danger doctrine. See Maldonado v. Fontanes, 568 F.3d 263,

269-70 (1st Cir. 2009).

We also remand the Monell and Maine Civil Rights Act

claims against Officer Dexter, which were resolved on the basis

that such claims failed because there was no violation of the

plaintiffs' substantive due process rights.

IV. Conclusion

We vacate the grant of summary judgment as to the § 1983

and Maine Civil Rights Act claims against Officer Dexter and the

Monell claims against Police Chief Beaupre and the City of

Biddeford and remand for further consideration in light of this

opinion and Irish II.

We affirm the grant of summary judgment as to the § 1983

claims against Officer Wolterbeek and all other claims against the

defendants. No costs awarded. See Fed. R. App. P. 39(a).

-Dissenting Opinion Follows-

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 KAYATTA, Circuit Judge, dissenting. A layperson reading

the facts of this case as portrayed in the majority opinion could

easily conclude that as a matter of good police practice, Officer

Dexter should have arrested Pak for criminal threatening (assuming

that he could discount Johnson's statement that he felt harassed,

but not really threatened). See, e.g., Me. Stat. tit. 17-A, § 209

(2021). And if the people of Maine wish to render law enforcement

officers personally liable for failing to make arrests in

situations like this one, they may so provide as a matter of state

law. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S.

189, 202 (1989) ("A State may, through its courts and legislatures,

impose such affirmative duties of care and protection upon its

agents as it wishes.").

As the Supreme Court has made clear, however, an

officer's failure to arrest does not violate the Due Process Clause

of the Fourteenth Amendment to the United States Constitution.

Id. at 196–97 ("If the Due Process Clause does not require the

State to provide its citizens with particular protective services,

it follows that the State cannot be held liable under the Clause

for injuries that could have been averted had it chosen to provide

them. As a general matter . . . we conclude that a State's failure

to protect an individual against private violence simply does not

constitute a violation of the Due Process Clause."). The Due

Process Clause provides impediments to arrest; it does not

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encourage, much less require, arrests. Given the weight of

precedent on this point, DeShaney's succinct summation must guide

our holding in this case: "Because . . . the State had no

constitutional duty to protect [the victim] against [another's]

violence, its failure to do so -- though calamitous in hindsight

-- simply does not constitute a violation of the Due Process

Clause." Id. at 202.

By vacating the judgment, the majority suggests that

perhaps a jury could hold Officer Dexter liable -- not for failing

to arrest, but for affirmatively doing something that increased

the likelihood that Pak would kill. But this "state-created

danger" exception only works if what the officer did, other than

failing to arrest Pak, is "so egregious, so outrageous, that it

may fairly be said to shock the contemporary conscience." County

of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1999). In Lewis,

the officer deliberately, recklessly, and with "indifference to

life" initiated a high-speed chase -- of up to 100 miles per hour

-- in pursuit of two teenagers on a motorcycle who had committed

only a speeding violation. Id. at 836, 837, 854. The officer

followed so closely that it was impossible for him to stop safely,

should the motorcycle he was chasing come to a halt. When the

chased motorcycle tipped over, the officer hit and killed its

sixteen-year-old passenger, all in assumed violation of sound law

enforcement practice. Id. at 837, 854. The Supreme Court

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nevertheless found that the officer's conduct "[did] not shock the

conscience." Id. at 855.

The Court in Lewis "left open the possibility that

unauthorized police behavior in other contexts might 'shock the

conscience,'" Chavez v. Martinez, 538 U.S. 760, 774 (2003) (citing

Lewis, 523 U.S. at 850). It gave two examples of such other

contexts: First, the "shock the conscience" standard might be

"satisfied where the conduct was 'intended to injure in some way

unjustifiable by any government interest[.]'" Lewis, 523 U.S. at

849—50. Second, "deliberate indifference" might in theory suffice

to shock the conscience, when such indifference is "patently

egregious." Id. at 850. And the Court has never suggested that

failing to arrest can be rendered actionable simply by labeling

such failure deliberate indifference. To conclude otherwise would

be to overrule DeShaney.

So what did Officer Dexter affirmatively do that was so

egregious and outrageous as compared to the conduct found not to

shock the conscience in Lewis? The answer is "nothing." There is

no dispute as to the content of the conversations he had with

either the victims or with the Paks, as those conversations were

recorded. Officer Dexter listened patiently to the tenants and

gave them common-sense advice about staying away from Pak for the

evening if they could. And he spoke with Pak. Suffice it to say,

he did not urge Pak to shoot anybody. To the contrary, Dexter

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repeatedly and firmly told Pak that violence and threats of

violence were crimes and would lead to his arrest. Pak replied

that he was "not going to shoot [Johnson]." The conversation ended

with Officer Dexter repeating twice an admonishment for Pak to

"keep [his] distance from [the tenants]," to which Pak replied

"[n]o, no you don't have to worry about that."

The majority points to the fact that Officer Dexter

expressed some sympathy for Pak's complaints about his tenants.

To be precise, what he did was play good-cop, bad-cop with Pak,

expressing some sympathy regarding Pak's frustration that the

tenants were in violation of their lease and that the eviction

process was difficult, while admonishing Pak for his threats.

The majority also observes that Officer Dexter did not

ask whether Pak had a gun. This is clear in the record. What is

not clear is why the majority thinks it matters. Following my

colleagues' reasoning, had the officer inquired about the presence

of a firearm, he could now be said to have caused the tenants'

deaths by reminding Pak that he did indeed have a gun. Of course,

asking about the gun might have led the officer to make an arrest.

But as explained above, the failure to arrest does not give rise

to liability under federal law.

Similarly, the majority comments that Officer Dexter did

not ask Pak whether he had consumed any alcohol and did not conduct

a field sobriety test. Although my colleagues make note of Officer

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Dexter's testimony that he was never within six feet of Pak and

did not smell any alcohol, they fail to elucidate what affirmative

duty Dexter was under to investigate Pak's alcohol consumption,

especially when the "legal limit" for blood alcohol levels the

majority cites applies to individuals operating motor vehicles in

the state of Maine, rather than to individuals in their homes.

Officer Dexter's effort clearly did not work in this

instance. Even if we assume that his intervention angered Pak

further, however, I can still say with confidence that no

reasonable person could possibly find that such actions as Officer

Dexter undertook could shock anyone's conscience as that test is

defined in Lewis. Lewis, 523 U.S. at 836, 849—51; id. at 855

("Regardless whether [the officer's] behavior offended the

reasonableness held up by tort law or the balance struck in law

enforcement's own codes of sound practice, it does not shock the

conscience, and petitioners are not called upon to answer for it

under § 1983."). Indeed, if what Officer Dexter said to Pak could

satisfy the "shock the conscience" standard, then it is fair to

ask my colleagues a question that they cannot answer: Short of

arresting Pak, what could the officer had said to him or done that

could not now in hindsight equally be said to shock our

consciences? Suppose, for example, that Officer Dexter had instead

told Pak that he had no sympathy for Pak's complaints as a

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landlord. The officer might now be equally second-guessed by my

colleagues for having worsened things by further provoking Pak.

Aside from detailing certain facts, such as Officer

Dexter's failure to arrest, that could potentially support a

negligence suit but not a federal claim, the majority never really

says what specific facts might be found on remand and how those

facts could change the result of the district court's opinion. To

the contrary, my colleagues seem to hold their own opinion with

pinched noses and at arm's length. So why remand a case that we

already know can go nowhere under current legal standards, creating

false hope for the plaintiffs? The majority cites two

justifications.

First, the majority alleges that Irish v. Fowler, 979

F.3d 65 (1st Cir. 2020) ("Irish II") supposedly "clarified this

circuit's law." But the whole point of Irish II was that the law

regarding the state-created danger doctrine was already so

"clearly established" that qualified immunity was inapplicable.

979 F.3d at 77—80 (describing as "simply incorrect" an assertion

that the law of the state-created danger doctrine was not "clearly

established").

Second, the majority notes that in describing the

exception for state-created dangers, the district court asked

whether Officer Dexter's actions "greatly increas[ed] the danger"

rather than whether they "enhanc[ed] the danger." But this

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difference in terminology could only matter if a jury could

reasonably find that Officer Dexter engaged in affirmative conduct

that both enhanced the danger and was shocking to the conscience.

And as I have explained, even the majority avoids saying that

Dexter's conduct could be found to have shocked the conscience.

If, on remand, the district court reads the majority

opinion carefully, it will note that the opinion does not actually

preclude the district court from rewording its summary of the

applicable enhancement standard and re-entering its order of

dismissal. Should the district court so proceed, perhaps no great

harm will be done, even if nothing is gained beyond a display of

understandable sympathy for the victims. But there is a chance

that courts -- including the district court -- will read the

majority opinion otherwise. They might sensibly think that no

appellate court would remand this case unless, on the present

record, it thought that a judgment for plaintiffs was somehow

possible. And litigants or potential litigants in other cases in

which officers fail to arrest someone will cite this case as

watering down the "shock the conscience" test to a form of re-

labeled negligence.

Such an outcome is contrary to existing law. As the

Supreme Court said in DeShaney: "The most that can be said of the

state functionaries in this case is that they stood by and did

nothing when suspicious circumstances dictated a more active role

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for them. In defense of them it must also be said that had they

moved too soon to [act], they likely would have been met with

charges of improper [behavior], charges based on the same Due

Process Clause that forms the basis for the present charge of

failure to provide adequate protection." DeShaney, 489 U.S. at

203. The same point applies here.

I must therefore respectfully dissent. Officer Dexter

took no affirmative act that could conceivably be said to shock

the conscience as that standard is defined in Lewis. And whether

he should be held personally liable for not doing more is not a

concern of the Due Process Clause.

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