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Date: 03-31-2023

Case Style:

Jocelyne Welch, et al. v. City of Biddeford Police Department, et al.

Case Number: 2:17-cv-00264

Judge: Jon D. Levy

Court: United States District Court for the District of Maine (Cumberland County)

Plaintiff's Attorney:

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Defendant's Attorney: Joseph A. Padolsky and Douglas L. Louison

Description: Portland, Maine civil rights lawyers represented Plaintiff who sued Defendants claiming violated their federal constitutional substantive due process rights under the state-created danger doctrine.

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.

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.

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.

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.

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.

[12 F.4th 73]

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 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 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.

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 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.

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 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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; Me. Rev. Stat. Ann., tit. 5, § 4682(1-A). After discovery, the defendants moved for summary judgment.

* * *

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, 109 S.Ct. 998, 103 L.Ed.2d 249 (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).

Outcome: Summary judgement on favor of Defendants. Vacated and remanded.

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