Johnson v. City of Biddeford

• Decision Date: 15 April 2020
• Docket Number: 2:17-cv-00264-JDL
• Parties: Susan JOHNSON, individually and on behalf of her minor son B.L., and on behalf of Derrick Thompson, deceased; and Jocelyne Welch, as Personal Representative of the Estate of Alivia Welch, Plaintiffs, v. CITY OF BIDDEFORD, et al., Defendants.
• Court: U.S. District Court — District of Maine

454 F.Supp.3d 75

Susan JOHNSON, individually and on behalf of her minor son B.L., and on behalf of Derrick Thompson, deceased; and Jocelyne Welch, as Personal Representative of the Estate of Alivia Welch, Plaintiffs,

v.CITY OF BIDDEFORD, et al., Defendants.

2:17-cv-00264-JDL

United States District Court, D. Maine.

Signed April 15, 2020

Sarah A. Churchill, Nichols & Churchill, Portland, ME, for Plaintiff Jocelyne Welch.

Kristine C. Hanly, Law Office of Kristine C. Hanly d/b/a Hanly Law, Portland, ME, for Plaintiff Susan Johnson.

Joseph A. Padolsky, Pro Hac Vice, Douglas I. Louison, Louison Costello Condon & Pfaff, LLP, Boston, MA, for Defendants City of Biddeford Police Department, Roger P. Beapure, Edward Dexter, Jacob Wolterbeek.

Douglas I. Louison, Joseph A. Padolsky, Louison Costello Condon & Pfaff, LLP, Boston, MA, for Defendant City of Biddeford.

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JON D. LEVY, CHIEF U.S. DISTRICT JUDGE

On December 29, 2012, James Pak, a Biddeford landlord, argued with and threatened his tenants, Susan Johnson and Derrick Thompson, who were renting the apartment adjoining Pak's house. The dispute concerned the number of cars Johnson and Thompson were allowed to park in the property's driveway. Thompson called 9-1-1, and Biddeford Police Officer Edward Dexter arrived at the scene and spoke with Johnson, Thompson, and Thompson's girlfriend, Alivia Welch, and separately with Pak and his wife. Within minutes after Officer Dexter left the residence, Pak entered the apartment and shot Johnson, Thompson, and Welch. Thompson and Welch were killed, and Johnson suffered serious injuries.

Johnson, on her own behalf, and that of her minor son, B.L., and as personal representative of the Estate of Derrick Thompson, and Jocelyne Welch, as personal representative of the Estate of Alivia Welch, bring these consolidated actions, seeking monetary damages based on the law enforcement response to the altercation. The defendants include the City of Biddeford,¹ the City's Police Chief, Roger P. Beaupre, and two of the City's police officers, Edward Dexter and Jacob Wolterbeek (collectively, "the Defendants").² The Defendants move for summary judgment (ECF No. 66), and, for reasons I will explain, I grant their motion.

I. BACKGROUND

Viewed in the light most favorable to the Plaintiffs as the nonmoving party, the summary judgment record portrays the following facts.

James and Armit Pak leased out an apartment attached to their home in Biddeford to Susan Johnson and her son, Derrick Thompson. On the evening of December 29, 2012, James Pak argued with Thompson and Johnson outside the apartment regarding the number of cars parked in the property's driveway. During the argument, Pak exhibited threatening behavior and made the shape of a gun with his hand. Johnson instructed her son to call the police. Thompson made the call and told the 9-1-1 dispatcher that his landlord was "freaking out," making death threats, and pointing his fingers towards him in the shape of a gun. After the call, Johnson, Thompson, and Thompson's girlfriend, Alivia Welch, waited inside the apartment for the police to arrive.

Officer Dexter responded to the call and spoke with Johnson, Thompson, and Welch inside the apartment. Officer Dexter was equipped with a WatchGuard audio recording system, which the parties agree accurately captured Officer Dexter's conversations with Johnson, Thompson, Welch, and, separately, the Paks that evening. Thompson explained to the officer that Pak was acting erratically, screaming, and had challenged Thompson to hit him, all in connection with a disagreement over the number of cars Johnson and Thompson were permitted to have in the driveway. Thompson further reported that Pak had threatened him and Johnson by pointing his fingers in the shape of a gun at each of them and saying "bang." Officer Dexter viewed cellphone videos Johnson had taken depicting portions of the argument between Thompson and Pak. In the videos, Pak made vulgar comments and appeared agitated. Officer Dexter asked if they had had similar problems with Pak in the past. Thompson responded that he had, but Johnson responded that she had not, explaining that she was not at the apartment very often. Meanwhile, a second Biddeford officer, Officer Jacob Wolterbeek, arrived, and he exchanged a few words with Pak outside on the driveway before joining Officer Dexter in the apartment.

Officer Dexter asked Thompson if he felt threatened by Pak. Thompson responded, "not really." Officer Dexter asked if Thompson instead felt "harassed," and Thompson agreed that he did. Thompson and Welch added that Pak would often "freak[ ] out" and was "always yelling." Johnson wondered if Pak's wife was away, because, as Welch explained, Pak's wife always came up to them to apologize after her husband acted in such a manner but she had not done so this time. Officer Dexter asked if they had any questions for him, and Johnson, Thompson, and Welch each responded "no." He then told them he would meet with Pak and would return to their apartment afterward. The parties’ statements of material facts do not specify what Officer Wolterbeek did next, but Officer Dexter's dashcam video shows Officer Wolterbeek leaving the apartment, and it appears that he left the scene and did not participate further.

Officer Dexter knocked on the door of the Paks’ residence and was let in by Armit Pak, James Pak's wife. She told Officer Dexter that her husband, who was also present in the room, was angry with Johnson and Thompson for breaking their lease. Officer Dexter told the Paks that any landlord-tenant dispute and any potential eviction process were civil issues. James Pak then stated that Thompson had given him the finger and that he responded by telling Thompson he would shoot him. Officer Dexter told Pak that he could not make such statements or otherwise threaten to physically hurt Thompson. Pak responded, "I'm not going to shoot him." Officer Dexter again explained that the dispute over the cars was a civil matter and that the Paks should "do it through the courts."

Officer Dexter then suggested to the Paks that they stay in their home and only go outside when Johnson, Thompson, and Welch were inside their apartment. James Pak then said, "I ain't got nothing to lose; I came from [an] orphanage." Officer Dexter responded: "You do have a lot to lose, sir. You have this house; you have your wife; you have your dog; you have your vehicles." Pak repeated, "I've got nothing to lose," and again Officer Dexter disagreed. Pak protested, "he called me ‘jap,’ he called me names and now I just don't, I don't have any rights?" Pak's wife told him to calm down. Pak then said, "you're going to see me in the newspaper." Officer Dexter responded that he did not want to see Pak in the newspaper. Pak went on to state that he would be a "big name tomorrow," and that it would be a "bloody mess." As Officer Dexter began to leave the Pak's residence, he advised Pak to keep his distance from Johnson, Thompson, and Welch. Pak told Officer Dexter, "no, you don't have to worry about that," though Pak remained agitated.³

Officer Dexter then returned to the apartment and told Johnson, Thompson, and Welch to keep their distance from James Pak. Johnson asked if James Pak was alone, and Officer Dexter stated that Pak was with his wife. Officer Dexter then relayed the following about Pak:

He's obviously extremely upset about the second car and whatnot. Okay? Use caution. You're out there shoveling, he comes out; come inside. I think at this point in time trying to get him to understand what's happening and the issues of civil issue between you guys ... is gonna be hard-pressed and you guys are gonna have more than one conflict unfortunately.

ECF No. 78 ¶ 47. Johnson emphasized that Pak generally did not listen or understand. Officer Dexter then explained his interpretation of the situation:

[T]here's not much I can do about it because it is a civil issue. So whether you guys are going through the eviction process, the lease disagreement, whatever process that you guys are going through, I can't do much about that ... But I can do things about the harassment, et cetera, the threatening.

Id.

Johnson asked Officer Dexter if he was returning to the Paks’ residence, and he said no. He explained, "I advised [Pak] he can't harass you, he can't threaten you. Whether it was successful or not I don't know." Thompson replied, "I'll find out soon enough," and Officer Dexter said "well, just keep your distance." Johnson then asked if Pak was acting calm in the officer's presence, and Officer Dexter replied that "calm [was] not the best word" to describe Pak's demeanor. Johnson said she wondered if Pak was "going to be normal." Officer Dexter reiterated that Pak's wife was with him and added, "but they're frustrated" and "are hung up on the two car thing." Officer Dexter then left the scene. He did not issue a summons to Pak or arrest him.

Approximately five minutes later, a priority dispatch call directed Officer Dexter to return to the residence. Pak had entered the apartment with a gun and shot Johnson, Thompson, and Welch. Johnson was seriously injured, and Welch and Thompson were dead. Officer Dexter arrived on the scene one minute after receiving the dispatch call, and he was soon joined by other officers. Officer Dexter then tended to Johnson and her minor son, B.L., who had heard the shots from another room in the apartment. Pak was arrested and charged with, and eventually pled guilty to, two counts of homicide. He was sentenced to life in prison in February 2016.

II. LEGAL ANALYSIS

Summary judgment is granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if "its existence or nonexistence has the potential to change the outcome of the suit." Rando v. Leonard , 826 F.3d 553, 556 (1st Cir. ...