Irish v. Fowler

• Citation: 979 F.3d 65
• Decision Date: 05 November 2020
• Docket Number: No. 20-1208,20-1208
• Parties: Brittany IRISH, individually and as Personal Representative of the Estate of Kyle Hewitt; Kimberly Irish, Plaintiffs, Appellants, v. Detective Jason FOWLER; Detective Micah Perkins; Sergeant Darrin Crane, Defendants, Appellees, and State of Maine; State Police of the State of Maine; John Darcy ; Andrew Levesque, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

979 F.3d 65

Brittany IRISH, individually and as Personal Representative of the Estate of Kyle Hewitt; Kimberly Irish, Plaintiffs, Appellants,

v. Detective Jason FOWLER; Detective Micah Perkins; Sergeant Darrin Crane, Defendants, Appellees,andState of Maine; State Police of the State of Maine; John Darcy ; Andrew Levesque, Defendants.

No. 20-1208

United States Court of Appeals, First Circuit.

November 5, 2020

Scott J. Lynch, Lewiston, ME, with whom Lynch & Van Dyke, P.A. was on brief, for appellants.

Christopher C. Taub, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, was on brief, for appellees.

Before Lynch, Selya, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

In this opinion, we hold on these facts that a viable substantive due process state-created danger claim has been presented against two Maine State Police ("MSP") officers, and that it was error to grant the officers qualified immunity. Under the state-created danger substantive due process doctrine, officers may be held liable for failing to protect plaintiffs from danger created or enhanced by their affirmative acts. In doing so, we for the first time join nine other circuits in holding such a theory of substantive due process liability is viable.

This § 1983 action arises out of the attacks, murder, and rapes committed in July 2015 by Anthony Lord against appellants Brittany Irish ("Irish") and those close to her. After actions and inactions by the defendant officers, Lord murdered Irish's boyfriend Kyle Hewitt, shot Irish's mother Kimberly Irish, and then kidnapped Brittany Irish for about nine hours and raped her.

The suit asserts that Lord's rampage was triggered by a voicemail left on Lord's cellphone by defendant MSP Detectives Micah Perkins and Jason Fowler, the officers investigating Irish's criminal complaint that Lord had abducted, threatened, and raped her two days earlier. Before the detectives checked Lord's criminal record or made any effort to find Lord in person, Detective Perkins left a voicemail identifying himself as a state police officer and asking Lord to call him back.

The plaintiffs seek relief based on the state-created danger doctrine. The plaintiffs argue that the detectives created and enhanced the danger to them and then failed to protect them in the face of Lord's escalating threats.

This court had earlier vacated the dismissal of these claims for failure to state a claim. Irish v. Maine, 849 F.3d 521, 523 (1st Cir. 2017) (" Irish I"). After remand and the completion of extensive pretrial discovery, the defendants moved for summary judgment and the district court held that a jury could find that the defendant officers violated the plaintiffs' constitutional rights. Irish v. Fowler, 436 F. Supp. 3d 362, 364 (D. Me. 2020). It granted summary judgment to the officers on the grounds of qualified immunity. Id. We describe the district court's rulings later.

We affirm the district court's holding that a jury could find that the officers violated the plaintiffs' substantive due process rights. We reverse the grant of defendants' summary judgment motion on qualified immunity grounds.

I. Statement of Facts

On defendants' motion for summary judgment, we read the facts in the light most favorable to the plaintiff. Stamps v. Town of Framingham, 813 F.3d 27, 30 (1st Cir. 2016).

We supplement our description of the facts in Irish I with the district court's comprehensive statement of the facts.

The Events Underlying Plaintiffs' Claims

At approximately 11:13 AM on July 15, 2015, Brittany Irish reported to the Bangor Police Department that Anthony Lord, a former lover, had kidnapped and raped her repeatedly on the night of July 14, including at two vacant camps near Benedicta, Maine. The Bangor Police Department referred her to the MSP. MSP Sergeant Darrin Crane assigned Detectives Perkins and Fowler to the case and told the detectives that Lord was a registered sex offender. Around 2:00 PM, Sergeant Crane forwarded the detectives a copy of Brittany Irish's statement to the Bangor Police Department. The statement said that Lord had threatened to "cut her from ear to ear."

Brittany Irish met with the detectives at 3:05 PM and again at 4:34 PM. At the 3:05 meeting, she told the detectives that she was "scared that Anthony Lord would become terribly violent if he knew [Irish] went to the police." The detectives told Irish that because of Lord's repeated threats, they "recommended not letting [Lord] know ... reports had been made [to the police]." Indeed, they instructed her to "continue talking to [Lord] as if nothing happened" until the detectives could get Lord's statement. Irish also told the detectives that she had moved her children to Hewitt's mother's house in Caribou, Maine, for their safety. That evening, the detectives found evidence corroborating Irish's allegations against Lord at one of the vacant camps near Benedicta.

On July 16, Irish made a second written statement to the detectives which said that Lord had threatened to "cut [her] from ear to ear," to abduct Irish's children, to abduct and "torture" Hewitt to find out "the truth" about what was happening between Irish and Hewitt, to kill Hewitt if Hewitt was romantically involved with Irish, and to weigh down and throw Irish into a lake.

Despite these repeated death and other threats and their knowledge that Lord was a registered sex offender, the defendants did not, as was customary, check the sex offender registry to find Lord's address or run a criminal background check. Such searches would have revealed that he was on probation and had an extensive record of sexual and domestic violence. The detectives did not contact Lord's probation officer at this time or request a probation hold, which could have been used to detain Lord and is simpler to obtain than an arrest warrant.

Her written statement in hand, the detectives interviewed Irish again on July 16. Despite their earlier statement to her, they told her that they planned to call Lord to get his statement. At 6:17 PM on July 16, Detective Perkins called Lord while Detective Fowler listened.¹ When Lord did not answer, Detective Perkins did not hang up. Rather, he left a voicemail for Lord on his cellphone. In that voicemail, Detective Perkins identified himself as a state police detective and asked Lord to return his call. Detective Perkins did not ask Lord to come meet with him. At that point, the defendants had made no effort to locate Lord, much less to apprehend him. Detective Perkins admitted that, if Lord had committed the original assault against Irish, it would be "logical" that Lord would determine that the phone call was related to the rape and kidnapping of Brittany Irish.

At 8:05 PM on July 16 -- about an hour and forty-five minutes after he had left the voicemail -- Detective Perkins received notice of a "possible suspicious" fire in Benedicta, the town where the detectives had found evidence that Lord had raped Irish at a vacant camp. Believing that Lord may have set the fire, the detectives drove to the site of the fire. At 9:24 PM, Brittany Irish called the detectives and told them it was her parents' barn, roughly fifteen feet from their home, which was on fire. Irish also told the detectives that someone had heard Lord say as he left his uncle's house (in Crystal, Maine) earlier that evening that "I am going to kill a fucker." Irish told the detectives that she was afraid for her children's safety, planned to stay at her mother's home in Benedicta, and would meet the detectives there.

The detectives first began the search for Lord at 10:05 PM, almost four hours after leaving the voicemail. They arranged a state-wide teletype for a "stop and hold" of Lord. Detective Perkins added a "use caution" warning to the teletype, which warned officers that Lord could be dangerous and to take precautions.

Sergeant Crane joined the search at about 10:00 PM. Around 10:35 PM, Sergeant Crane sent two MSP troopers to Lord's mother's house in Houlton, Maine, which is about forty miles from Benedicta. Those officers did not call Lord's mother's house but chose to drive there. There is no evidence that these officers ever left Houlton or came to Benedicta to help look for Lord.

The defendant detectives arrived at the scene of the barn fire around 10:36 PM. Detective Perkins requested a K-9 unit to be dispatched to the scene.

Shortly thereafter, Irish received a phone call from her brother, who told her that Lord, upon receiving the voicemail, was irate and said that "someone's gonna die tonight." Irish immediately told the detectives about this death threat and asked for protection. The officers left the scene and no officer remained to protect her and the others.

At 11:38 PM, the detectives finally requested a criminal background check and learned Lord's criminal record.

At 11:49 PM, the detectives first contacted Lord's probation officer, who attempted to reach Lord and told the detectives that Lord's last known residence was at his uncle's property in Crystal, Maine.

Around midnight, Brittany Irish contacted Detective Perkins and asked again for an officer to come to her mother's residence. Detective Perkins understood that she wished for an officer to protect her and her family in the event that Lord returned to her mother's house. Detective Perkins did not relay the request to his superior at this time, and no officers were sent there.

Instead, at 12:30 AM on July 17, four officers, including Crane, Fowler, and Perkins, went to Lord's uncle's house in Crystal, Maine, about twenty miles from Benedicta, to look for Lord. They did so despite having been told that Lord had left his uncle's house earlier that evening and their suspicions Lord had set the fire in Benedicta. No explanation was given for why they did not call the uncle to see if Lord was there.

At about 1:00 AM, Crane, Fowler, and Perkins met in a parking lot in Crystal, where Detective Perkins finally told Sergeant Crane about Irish's request for...