Irish v. State

Decision Date01 March 2017
Docket NumberNo. 16-2173,16-2173
Citation849 F.3d 521
Parties 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.
CourtU.S. Court of Appeals — First Circuit

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

Christopher C. Taub , Assistant Attorney General, with whom Janet T. Mills , Attorney General, was on brief, for appellees.

Before Lynch, Thompson, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

Plaintiffs Brittany and Kimberly Irish (together, "the Irishes") brought this 42 U.S.C. § 1983 action 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 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 , ––– U.S. ––––, 134 S.Ct. 2056, 2066, 188 L.Ed.2d 1039 (2014) ; Rivera , 402 F.3d at 31, they are often decided after some factual development or at summary judgment, Plumhoff v. Rickard , ––– U.S. ––––, 134 S.Ct. 2012, 2017, 188 L.Ed.2d 1056 (2014) ; DeShaney v. Winnebago Cty. Dep't of Soc. Servs. , 489 U.S. 189, 193, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). As to qualified immunity, we 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.

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 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.

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."

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...

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