JOHNSON et al v. CITY OF BIDDEFORD et al
Filing
88
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT granting 66 Motion for Summary Judgment By JUDGE JON D. LEVY. (aks)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
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.
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ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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 91-1, 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,
1 The Biddeford Police Department was previously named as a defendant, but it is not a legal entity separate
from the City of Biddeford. Accordingly, the Biddeford Police Department and City of Biddeford are treated as
one party—the City of Biddeford.
Johnson’s complaint previously named the Maine Department of Public Safety and its commissioner, John E.
Morris, as defendants. Following my ruling on a motion to dismiss (ECF No. 33), the parties stipulated to the
dismissal with prejudice of all claims against the Department of Public Safety and its commissioner.
2
Johnson’s complaint still includes as defendants Jane Doe(s) (one or two unnamed police officer(s) and/or
dispatch employee(s)). Though discovery is complete, Johnson has not amended her complaint to include their
identities, and the Plaintiffs’ Statement of Material Facts makes clear that the Plaintiffs have identified those
whom they contend are responsible for constitutional and state law violations. Accordingly, I treat the claims
against the Jane Doe defendants as withdrawn, and therefore the complaint is dismissed as to the Jane Doe
defendants. See, e.g., Gonzalez v. Dooling, 98 F. Supp. 3d 135, 141 n.9 (D. Mass. 2015); Williams v. City of Bos.,
No. CIV.A. 10-10131-PBS, 2013 WL 1336584, at *12 (D. Mass. Mar. 14, 2013).
2
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,”
3
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.
4
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:
3 Officer Dexter did not ask the Paks whether they owned or had access to any firearms, or whether James Pak
had been consuming alcohol that evening. Pak was subsequently tested after the shooting and found to have a
blood alcohol content of .15%.
5
[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.
6
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. 2016) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern,
605 F.3d 1, 5 (1st Cir. 2010)). Issues are considered genuine “if the evidence of record
permits a rational factfinder to resolve [the issue] in favor of either party . . . .” Id.
(quoting Borges, 605 F.3d at 4). The facts in the record are construed in the light
most favorable to the nonmoving party, and all reasonable inferences are resolved in
the nonmoving party’s favor. See Braga v. Genlyte Group, Inc., 420 F.3d 35, 38 (1st
Cir. 2005).
The Plaintiffs’ complaints contain a mix of federal and state law claims. I begin
with the claims at the center of the case: (A) Plaintiffs’ assertions under 42 U.S.C. §
1983 that the Defendants violated their rights under the Constitution and laws of the
United States. I then consider the Plaintiffs’ claims under (B) an analogous state
statute, the Maine Civil Rights Act, 5 M.R.S.A. § 4682(1-A); (C) 42 U.S.C. § 1985(3)
and Maine’s civil conspiracy law alleging that certain defendants were part of an
unlawful conspiracy; (D) state law for assault and battery; (E) state law for negligence
and negligent and intentional infliction of emotional distress, and (F) Maine’s
wrongful death statute.
7
A.
Deprivation of Rights Under 42 U.S.C. § 1983
The complaints assert claims under 42 U.S.C. § 1983 against Officers Dexter
and Wolterbeek for violating the Plaintiffs’ constitutional rights by failing to protect
them from Pak’s violence. The complaints also assert that the City of Biddeford and
Police Chief Beaupre failed to adequately supervise and train their officers, causing
the alleged deprivation of the Plaintiffs’ constitutional rights.
I examine the
individual officers’ conduct first and then turn to the conduct of the City and its Police
Chief.
1. Officers Dexter and Wolterbeek
Johnson and Welch’s complaints assert that Officer Dexter and Officer
Wolterbeek’s actions and inactions deprived the Plaintiffs of their substantive due
process rights under the Fourteenth Amendment to the United States Constitution
because the officers failed to protect the Plaintiffs from the harm caused by Pak. 4
The Defendants argue that Officers Dexter and Wolterbeek are entitled to qualified
immunity on the Plaintiffs’ § 1983 claims. Police officers are entitled to qualified
immunity unless “(1) they violated a federal statutory or constitutional right, and (2)
the unlawfulness of their conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)). I begin with the first prong, analyzing whether Officers Dexter and
4 Johnson and Welch’s filings assert that their § 1983 claims are based not just on violations of the United States
Constitution, but also on violations of analogous rights under the Maine Constitution and of the Maine right to
quiet enjoyment of one’s residence, citing Blackhouse v. Doe, 24 A.3d 72, 80 (Me. 2011) (Alexander, J., dissenting).
This assertion fails to recognize that § 1983 provides a right of action for violations of the United States
Constitution and of federal law, but not violations of the Maine Constitution or of state law. See Holder v. Town
of Newton, 638 F. Supp. 2d 150, 153 n.3 (D.N.H. 2009) (citing Ortega Cabrera v. Municipality of Bayamon, 562
F.2d 91, 102 (1st Cir. 1977)).
8
Wolterbeek violated the Plaintiffs’ substantive due process rights under the
Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment provides 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 order to establish a substantive due process
claim, the plaintiff must first show a deprivation of a protected interest in life, liberty,
or property.” Rivera v. Rhode Island, 402 F.3d 27, 33–34 (1st Cir. 2005) (citations
omitted). The plaintiff must also show that “the deprivation of this protected right
was caused by governmental conduct.” Id. at 34. This element is “easily met when a
government actor causes the injury, such as when police officers act under color of
law.” Id.
By contrast, “a State’s failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause.” See DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). Since the Supreme
Court’s decision in DeShaney, at least eight federal circuits have recognized the
“state-created danger” exception, under which a substantive due process violation
may occur if the state creates the danger a person faces from a third party but then
fails to protect that person. See Irish v. Maine, 849 F.3d 521, 526 (1st Cir. 2017). Two
federal circuits have explicitly refused to recognize such an exception. See Beltran v.
City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004); Vaughn v. City of Athens, 176 Fed.
App’x 974, 976 n.1 (11th Cir. 2006).
9
The First Circuit has considered the “state-created danger” exception to
DeShaney in several decisions but has not officially recognized it. See Irish, 849 F.3d
at 525−26; Rivera, 402 F.3d at 35 (collecting cases). In its most recent discussion of
the issue in Irish v. Maine, the First Circuit noted the “possible existence” of the
“state-created danger” exception but chose not to officially recognize it because of a
“dearth of facts” in the record. 849 F.3d at 526, 528. Reasoning that further factual
development would assist in determining whether the plaintiffs could establish a
substantive due process violation under the “state-created danger” exception, the
First Circuit vacated the district court’s dismissal and remanded the case for
discovery. Id. at 528–29. 5 Thus, for the purposes of my analysis, I assume that the
First Circuit will eventually adopt the “state-created danger” exception.
For the “state-created danger” exception to apply, actions by state officials
must have created or greatly increased the risk of danger an individual faced. See
Coyne v. Cronin, 386 F.3d 280, 287 (1st Cir. 2004) (government must “affirmatively
act[] to increase the threat to an individual of third-party private harm”); Hasenfus
v. LaJeunesse, 175 F.3d 68, 73 (1st Cir. 1999) (government must “create or []
markedly increase a risk”); Rivera, 402 F.3d at 35 (government must “create[] or
greatly enhance[] the danger faced by the plaintiff from third parties” (citing Soto v.
Flores, 103 F.3d 1056, 1063–64 (1st Cir. 1997)); Frances-Colon v. Ramirez, 107 F.3d
62, 64 (1st Cir. 1997) (government must “affirmatively act[] to increase the threat of
5 On remand, District Judge John A. Woodcock, Jr. found that the plaintiffs had “established genuine issues of
material fact as to whether, due to a danger created or exacerbated by [certain police officers], they suffered
violations of their rights to substantive due process.” Irish v. Fowler, No. 1:15-cv-00503-JAW, 2020 WL 535961,
at *51 (D. Me. Feb. 3, 2020) [hereinafter, Fowler]. However, Judge Woodcock granted summary judgment to the
defendants on qualified immunity grounds. Id.; see also n.14, infra.
10
harm to the claimant or affirmatively prevent[] the individual from receiving
assistance”). The First Circuit has cautioned that, “[i]n a creation of risk situation,
where the ultimate harm is caused by a third party, courts must be careful to
distinguish between conventional torts and constitutional violations, as well as
between state inaction and action.” Soto, 103 F.3d at 1064. Only an “affirmative act”
by state officials will suffice. Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 55 & n.9 (1st
Cir. 2006).
The “state-created danger” exception also contains the “further and
onerous requirement” that the state officials’ actions “shock the conscience of the
court.” Irish, 849 F.3d at 526 (quoting Rivera, 402 F.3d at 35).
Both sides here rely heavily on the First Circuit’s most recent discussion of the
“state-created danger” exception in Irish. According to the complaint in that case,
the victim’s ex-boyfriend abducted her, repeatedly raped her, and threatened to kill
her if she reported the crimes he had committed. 849 F.3d at 524. The victim called
the police, and the police told her that they were going to call her ex-boyfriend and
inform him of her accusations to get his side of the story. Id. She pleaded with the
police not to call him, citing her ex-boyfriend’s “terrible violence” and her fear for her
safety. Id. The police called her ex-boyfriend anyway and left a voice message that
potentially alerted him to the victim’s allegations. Id. The next day, after hearing
the message, the ex-boyfriend abducted the victim and shot and killed several others.
Id. at 525. The district court dismissed the case, finding that on those facts the statecreated danger exception did not apply, and that, in any event, qualified immunity
shielded the individual defendants from suit. Id.
11
The First Circuit vacated the district court’s dismissal, instructing that when
determining whether the “state-created danger” exception applies, courts must
consider not only what action police officers took but also the manner in which they
acted. Id. at 526. If the officers acted “despite foreseeing” that their actions might
harm the plaintiffs, the exception is more likely to apply. Id. at 528. Similarly, if the
officers “violated accepted norms of police procedure,” the exception is more likely to
apply. Id. By contrast, if the officers abided by accepted norms of police procedure
in employing “necessary law enforcement tools,” the exception is less likely to apply,
even if the officers’ affirmative acts greatly increased the risk of danger to the victims.
Id. at 523−24 & n.1, 528 (quoting Rivera, 402 F.3d at 37). The First Circuit found
that the disposition of the plaintiff’s complaint in Irish depended on questions of fact,
both as to whether the officers acted despite foreseeing the harm the plaintiff suffered
and as to the applicable police procedures and training. Id. at 527−28. Thus, the
First Circuit concluded that further factual development was necessary to determine
whether the plaintiffs could establish a substantive due process violation under the
“state-created danger” exception, if such an exception existed at all. Id.
The parties analogize the facts of this case to those of Irish and, alternatively,
distinguish those facts. The Defendants argue that the Plaintiffs cannot make out a
substantive due process claim under the “state-created danger” exception because
Officers Dexter and Wolterbeek took no affirmative acts that created or greatly
increased the risk of danger that Johnson, Thompson, and Welch faced.
The
Plaintiffs respond that the officers increased the risk of danger to the victims by
12
interacting with Pak shortly before the shooting; by then leaving the scene while Pak
was still making threats; by promising to protect Johnson, Thompson, and Welch but
failing to do so; by failing to communicate the severity of Pak’s threats and
aggressiveness to Johnson, Thompson, and Welch; and by failing to properly
investigate Pak’s threats. I analyze the parties’ arguments mindful that “courts must
be careful to distinguish . . . between state inaction and action” when analyzing
whether the “state-created danger” exception applies, Rivera, 402 F.3d at 36 (quoting
Soto, 103 F.3d at 1064), and that for liability to arise, the officers’ affirmative acts
must have greatly increased the risk of danger to the victims, id. at 35.
a. Affirmative Acts
Johnson and Welch identify two affirmative acts by Officer Dexter that, they
assert, bring this case within the “state-created danger” exception.
i. Officer Dexter’s Meeting with Pak
First, Johnson and Welch contend that Officer Dexter affirmatively acted by
speaking with Pak and by leaving the scene while Pak was still making threats.
However, Johnson and Welch cannot show that Officer Dexter’s meeting with Pak
and the discontinuation of that meeting increased the risk of harm to the victims. 6 It
is undisputed that Pak’s aggressive and threatening behavior preceded the officers’
involvement and prompted Thompson’s 9-1-1 call in the first place. Further, there is
no evidence that Pak became substantially more aggressive or threatening after
6 Although a police officer’s “arrival, minimal investigation, and subsequent departure” can constitute
“affirmative acts that emboldened” the perpetrator by diminishing the perpetrator’s fear of arrest, I also consider
them in the inaction section, infra, where the “real complaint is the failure [by the officer] to do anything else—
an act of omission.” May v. Franklin Cty. Bd. of Comm’rs, 59 F. App’x 786, 794 (6th Cir. 2003) (not for publication).
13
speaking with Officer Dexter. Even if Officer Dexter’s advice to Pak that he should
resolve his dispute with his tenants in civil court might have added to Pak’s
frustration and agitation, that advice cannot reasonably be said to have greatly
increased the risk of danger Pak posed to the victims, as required to impose on Officer
Dexter a constitutional duty to protect Johnson, Thompson, and Welch. See Rivera,
402 F.3d at 35 (citations omitted); see also Fowler, 2020 WL 535961, at *41–42
(finding a “clear issue of fact” as to whether the voice message left by the police in
Irish “led to” the ex-boyfriend’s violence against the plaintiff where the ex-boyfriend
heard the message and stated that he would “kill a fucker” soon thereafter, and where
the plaintiff had ostensibly faced no risk of immediate danger otherwise). Because
Officer Dexter’s meeting with Pak “placed the [victims] in no worse position” than
they would have faced if he had “not acted at all,” the Plaintiffs cannot establish a
due process violation based on Officer Dexter’s meeting with Pak. DeShaney, 489 at
201.
Nor can Johnson and Welch show that Officer Dexter violated “accepted norms
of police procedure” over the course of his interaction with Pak. Irish, 849 F.3d at
528.
They assert that Officer Dexter violated the deviant behavior policy then
embodied in Biddeford Police Department General Order No. 136-96 because he
witnessed Pak’s threatening behavior, but failed to take Pak into protective custody. 7
7 Johnson and Welch also cite 25 M.R.S.A. § 2803-B, which at the time required all Maine law enforcement
agencies to adopt written policies regarding procedures for handling persons “exhibiting deviant behavior.” 25
M.R.S.A. § 2803-B(1)(C) (repealed 2013). They assert that 25 M.R.S.A. § 2803-C, which makes it a civil violation
with a maximum penalty of $500 for an agency or individual to fail to comply with § 2803-B, means that “action
required by [the law enforcement] policy becomes a required enforcement action and therefore a constitutionally
protected enforcement action.” ECF No. 79 at 4. Johnson and Welch do not cite any case law to this effect, and
14
However, General Order No. 136-96 did not require Officer Dexter to take Pak into
protective custody. Though the “Purpose” section of the Order stated that officers
“will make an arrest” or effect “protective detention” when encountering deviant
behavior, the actual procedures set forth in the Order only provided that officers
“shall be empowered” to take a person exhibiting deviant behavior into protective
custody and “shall exercise their discretion” under such circumstances.
Thus,
Johnson and Welch cannot establish that Officer Dexter violated the Order during
his interaction with Pak. This result comports with traditional principles of law
enforcement: “A well[-]established tradition of police discretion has long coexisted
with [even] apparently mandatory arrest statutes.” Town of Castle Rock v. Gonzales,
545 U.S. 748, 760 (2005).
Johnson and Welch also point to Biddeford Police Department Standard
Operating Procedure (“SOP”) 02-01, which instructs that on-duty officers “shall at all
times take appropriate action” to “protect life and property,” “preserve the peace,”
“prevent crime,” “detect and arrest violators of the law,” and “enforce Federal, State
and local laws and ordinances according to Department policy.” ECF No. 69-5 at 186.
Johnson and Welch assert that Officer Dexter violated this policy when he spoke with
Pak but failed to act after Pak threatened to shoot the victims and leave a “bloody
mess” in violation of Maine’s criminal threatening and terrorizing statutes, 17-A
M.R.S.A. §§ 209−210. However, like the deviant behavior policy discussed above,
they have provided no support for the proposition that individual police officers can be held constitutionally liable
under a statutory section directing law enforcement agencies to adopt certain policies. The statutory provisions
they cite say nothing about the consequences of an individual officer failing to follow the policies that the agency
puts forth. See also Hasenfus, 175 F.3d at 74 (“[T]he due process clause is not a surrogate for . . . state statutory
and administrative remedies.”).
15
SOP-02-01 did not require Officer Dexter to take any specific action during his
interaction with Pak. Rather, SOP-02-01 speaks in general terms as to a police
officer’s general function. Moreover, if a police officer’s alleged violation of a general
duty to enforce the law could support a due process claim under the “state-created
danger” exception, the exception would swallow the general rule that police officers
do not violate the Due Process clause by failing to protect an individual from private
violence. 8 See Deshaney, 489 U.S. at 197; see also Castle Rock, 545 U.S. at 768
(holding that there is no general right under the Due Process Clause to have someone
else arrested for a crime). 9
Finally, as Irish instructs, a court looks to whether the officers acted despite
foreseeing the harm to the victims. Irish, 849 F.3d at 528. At first glance, the facts
of this case seem similar to those of Irish because in both instances a police officer
contacted an individual who had been accused by others of exhibiting threatening or
violent behavior, and the individual subsequently committed acts of violence against
his accusers and others. In Irish, however, the victim called the police to report a
8 Even if Officer Dexter’s conduct could be said to have violated SOP-02-01, he would not have committed the
sort of specific violation that might support a due process claim under the “state-created danger” exception. In
Irish, the First Circuit noted that an examination of police procedures was part of its “developing caselaw” for
substantive due process claims. Irish, 849 F.3d at 527–28. Both Irish and the cases on which it relied looked to
procedures and training specific to the facts of the case before the court. See id. at 527 (seeking information on
police procedures or training, if any, “on how and when to notify the accused of the allegations that have been
filed against him”); Stamps v. Town of Framingham, 813 F.3d 27, 32–33 (1st Cir. 2016) (examining an officer’s
violation of specific gun safety protocols); Marrero-Rodríguez v. Municipality of San Juan, 677 F.3d 497, 502 (1st
Cir. 2012) (examining an officer’s violation of specific training protocols).
9
For the same reasons, Johnson and Welch’s citations to similar provisions in other Biddeford Police
Department SOPs do not change the analysis. See SOP-02-03, ECF No. 69-5 at 196 (“Members shall display an
affirmative, consistent effort to observe and comply with the directives, rules, policies, procedures, practices and
traditions established for the effective, efficient, and safe operations of this Department.”); SOP-02-14, ECF No.
69-5 at 216 (“The primary mission and function of the Patrol Division is the protection and preservation of life
and property through sound and accepted police practices.”); SOP-02-15, ECF No. 69-5 at 227−28 (explaining the
circumstances under which officers may make warrantless arrests).
16
violent crime her ex-boyfriend had already committed against her, putting the police
on notice of the ex-boyfriend’s potential for violence. Here, although Johnson,
Thompson, and Welch told Officer Dexter that Pak had threatened them and Pak
admitted to doing so and made similar threats in Officer Dexter’s presence, Johnson
and Thompson told Officer Dexter that Pak “always” behaved in an aggressive
manner akin to that which he was exhibiting on December 29; they did not report
that Pak had ever acted on his threats; Thompson told Officer Dexter that he had had
similar problems with Pak before and that, on December 29, Thompson did “not
really” feel threatened by Pak; Johnson and Welch indicated that Pak’s wife had acted
as a moderating presence when Pak had acted aggressively toward them in the past;
and Officer Dexter knew that Pak’s wife was with him on this occasion.
Viewing the undisputed facts in the light most favorable to the Plaintiffs, they
have not presented a triable issue that the affirmative acts of Officers Dexter and
Wolterbeek greatly increased the risk of danger Pak posed to the victims.
ii. Officer Dexter’s Alleged Promise to Protect the Victims
The Plaintiffs also contend that Officer Dexter affirmatively promised the
victims that he would resolve the situation with Pak and then failed to fulfill that
promise.
Specifically, they maintain that the victim’s conversation with Officer
Dexter amounted to a “request for protection,” and that Officer Dexter in effect
“promised” such protection when he told them he would deal with Pak’s harassment
and threats. ECF No. 79 at 10−11. Thus, the Plaintiffs argue, in effect, that Officer
Dexter increased the risk of harm that the victims faced because having relied on the
17
protection he promised, they did not take additional steps to protect themselves from
Pak.
The summary judgment record does not establish that Officer Dexter made an
explicit or implicit promise to Johnson, Thompson, and Welch that he would protect
them. 10 The undisputed facts establish that Officer Dexter, at most, told Johnson,
Thompson, and Welch that Pak was “obviously . . . not allowed to cause harassment,
threaten, et cetera” and that he would speak to Pak and “see what he has to say about
this.” ECF No. 78 ¶ 29. Officer Dexter told Johnson, Thompson, and Welch he would
return after speaking with Pak, which he did. Upon his return, Officer Dexter told
Johnson, Thompson, and Welch that Pak was “extremely upset;” he cautioned them
to keep their distance from Pak; and he explained that, in his view, Johnson,
Thompson, and Welch had a civil disagreement with the Paks about their lease and
that, while he could not do anything about that civil disagreement, he could assist
them with harassment or threatening behavior. Officer Dexter then told Johnson,
Thompson, and Welch that he would not return to the Pak’s residence following their
discussion; that it was unclear whether his warning to Pak not to harass them was
successful; and that Pak’s demeanor was not calm when he left the Paks’ home.
10 To the extent the Plaintiffs contend that the officers deliberately misled Johnson, Thompson, and Welch, I
find that this contention is also not supported by the record. See also Part II.C, infra.
18
Viewed in the light most favorable to the plaintiffs, the undisputed facts do not
establish that Officer Dexter explicitly or implicitly promised the victims that he
would protect them. 11
b. Alleged Failures to Act by the Police
The Plaintiffs also assert that the officers violated the victims’ substantive due
process rights under the “state-created danger” exception by failing to take certain
actions which had the effect of increasing the risk of harm to the victims. Specifically,
the Plaintiffs assert that: (1) Officer Dexter failed to defuse the situation with Pak;
(2) Officer Dexter failed to warn the victims so they could take additional safety
precautions; and (3) Officer Wolterbeek failed to investigate Pak’s threats further.
DeShaney and its progeny establish that omissions and failures to act by police
officers do not give rise to substantive due process violations. DeShaney held that
state actors do not violate the Due Process Clause by failing to protect an individual
from a danger they played no part in creating. DeShaney, 489 U.S. at 201. To the
extent that Johnson and Welch argue that officers may violate the Due Process
Clause where they have created the danger or greatly increased the risk of danger
11 Even if Officer Dexter had made a promise to protect the victims from Pak, an officer’s unkept promise to
protect a plaintiff from third-party violence generally does not establish a due process violation under the “statecreated danger” exception. Rivera, 402 F.3d at 37–38. The First Circuit in Rivera explained that, even if the
unkept promise “rendered [the plaintiff] more vulnerable to the danger posed” by the third party, the officer’s
conduct was “not materially different” from that at issue in DeShaney, “where the state was aware of the risk, by
its actions expressed promises of help, and then failed to protect” the victim from the risk. Id. at 38; see also Gray
v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 925 (10th Cir. 2012) (“DeShaney’s facts stalwartly suggest assurances
of protection from the State do not constitute affirmative conduct sufficient to invoke the state-created danger
theory of constitutional liability.”); cf. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063 (9th Cir. 2006) (finding
that an officer’s unkept promise to protect the plaintiff was an “additional and aggravating factor” supporting a
substantive due process claim under the “state-created danger” exception but refusing to hold that the promise
alone would suffice).
19
only through omission, the First Circuit has indicated that “the absence of an
affirmative act by the state” is dispositive of such a claim. Ramos-Piñero, 453 F.3d
at 55 n.9 (1st Cir. 2006). Indeed, “all the circuits that have adopted the state-created
danger theory require an affirmative act or a degree and pattern of inaction that rises
to the level of an affirmative act.” Fowler, 2020 WL 535961, at *42. 12
The omissions highlighted by Johnson and Welch are, by definition, not
affirmative acts. Though we know, with the benefit of hindsight, that Officer Dexter’s
efforts to defuse the situation were unsuccessful, “[f]ailing to defuse a preexisting
danger is not an affirmative act” for purposes of the “state-created danger” exception.
Doe1 v. Bos. Pub. Sch., No. 17-cv-11653-ADB, 2019 WL 1005498, at *5 (D. Mass. Mar.
1, 2019) (quoting Doe v. Berkeley Cty. Sch. Dist., 189 F. Supp. 3d 573, 577 (D.S.C.
2016) (collecting cases)). It is possible that if Officer Dexter had directly told the
victims that Pak had made statements to him indicating that Pak was volatile and
that he presented a serious threat of violence toward them and himself, they might
have heeded that information by leaving the property or taking other steps to protect
themselves.
It is settled, however, that an officer’s failure to “take further
discretionary steps to ensure [a victim’s] safety” is “insufficient to maintain a claim
of [a] substantive due process violation” under the “state-created danger” exception.
Excerpts from cases that Johnson and Welch have quoted in other parts of their opposition only reinforce the
necessity of an affirmative act. See ECF No. 79 at 17–18 (quoting, for example, Hasenfus, 175 F.3d at 73 (“Where
a state official acts so as to create or even markedly increase a risk, due process constraints may exist, even if
inaction alone would raise no constitutional concern.”); Frances-Colon v. Ramirez, 107 F.3d at 63–64 (“A
substantive due process interest . . . cannot support a personal injury claim under section 1983 against the
provider of a governmental service unless . . . the government employee, in the rare and exceptional case,
affirmatively acts to increase the threat of harm to the claimant or affirmatively prevents the individual from
receiving assistance . . . .”)).
12
20
Irish, 849 F.3d at 528 (citation omitted). 13 Further, the omissions relied on by the
Plaintiffs do not amount to “repeated, sustained inaction by government officials, in
the face of potential acts of violence” which “implicitly but affirmatively encourag[ed]
or condon[ed]” Pak’s threatening behavior. Okin v. Vill. of Cornwall-On-Hudson
Police Dep’t, 577 F.3d 415, 428–429 (2d Cir. 2009). The undisputed facts show that,
far from encouraging Pak’s behavior, Officer Dexter tried to deescalate the situation,
telling Pak that he could not make threatening statements, that he should seek a
civil remedy, and that he should stay away from the victims.
Accordingly, the police officers’ failure to defuse the situation and to provide a
clearer explanation to the victims of the degree of danger Pak represented to them
does not establish a substantive due process violation under the “state-created
danger” exception.
c. Conclusion as to the “State-Created Danger” Exception
Viewed collectively, the actions and inactions by Officers Dexter and
Wolterbeek did not amount to a requisite affirmative act that greatly increased the
risk of danger Johnson, Thompson, and Welch faced. Thus, I determine that their
conduct did not give rise to a “state-created danger” that violated the Plaintiffs’
substantive due process rights under the Fourteenth Amendment, and I do not reach
the “further and onerous requirement” that the state officials’ actions “shock the
conscience of the court.” Irish, 849 F.3d at 526 (quoting Rivera, 402 F.3d at 35).
13 Similarly, to the extent that the Plaintiffs seek to base their § 1983 claim on Officer Dexter’s failure to inquire
whether Pak possessed any firearms, they have not established that Officer Dexter had a duty to make such an
inquiry. Thus, this omission also cannot establish liability under the “state-created danger” exception.
21
Accordingly, I grant the Defendants’ motion for summary judgment as to the § 1983
claims against Officers Dexter and Wolterbeek. 14
2. Police Chief Roger Beaupre and the City of Biddeford
Johnson and Welch’s complaints assert that Police Chief Roger Beaupre and
the City of Biddeford are liable for having failed to adequately supervise and train
Officer Dexter, Officer Wolterbeek, and one or more additional unnamed police officer
or dispatch employees. 15 In Monell v. Department of Social Services, 436 U.S. 658
(1978), the Supreme Court recognized that municipalities may be found liable for
constitutional violations committed by their agents and employees. See Young v. City
of Providence, 404 F.3d 4, 25 (1st Cir. 2005). “Assessing liability against the City
requires two basic elements: first, that plaintiff’s harm was caused by a constitutional
violation” committed by agents or employees of the City, and “second, that the City
be responsible for that violation, an element which has its own components.” Id. at
25–26 (citing Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)).
Because I have already concluded that neither Officer Dexter nor Officer
Wolterbeek violated the Plaintiffs’ constitutional rights, as required for the first
element of Monell liability, Chief Beaupre and the City of Biddeford are entitled to
14 Because I find that the police officers did not violate the Plaintiffs’ constitutional rights, I also do not address
whether such rights would be “clearly established” for the purposes of qualified immunity. However, on remand
from the First Circuit in Irish, Judge Woodcock concluded that the “state-created danger” exception was not
clearly established, explaining that although Irish “presuppose[d its] availability,” the District Court could “only
go so far in reading tea leaves from First Circuit opinions.” Fowler, 2020 WL 535961, at *49.
15 Johnson and Welch’s complaints assert claims against Officer Dexter, Officer Wolterbeek, and Police Chief
Beaupre both in their individual and official capacities. An official capacity claim “generally represent[s] only
another way of pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of Soc. Servs.
of N.Y., 436 U.S. 658, 690 n.55 (1978). When municipal employees are sued in their official capacity, “their
liability under 42 U.S.C. § 1983 is indistinguishable from the county’s.” Wood v. Hancock Cty. Sheriff’s Dep’t, 354
F.3d 57, 59 n.1 (1st Cir. 2003). Thus, by addressing the City of Biddeford’s liability I also address the official
capacity claims.
22
summary judgment on the Plaintiffs’ § 1983 claims. See City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986); Evans v. Avery, 100 F.3d 1033, 1039–40 (1st Cir. 1996)
(holding that a municipality cannot be held liable under § 1983 for failure to train
absent an underlying constitutional violation by one of its officers).
B.
Deprivation of Rights under Maine Civil Rights Act
Welch’s complaint alleges that the Defendants violated the Maine Civil Rights
Act, 5 M.R.S.A. § 4682(1-A) by intentionally interfering with the victims’ rights under
the Maine Constitution, analogous to their rights under the United States
Constitution. They also allege that the Defendants violated their rights under Maine
law to quiet enjoyment of their residence.
The Maine Civil Rights Act’s protections and immunities are generally
“coextensive with those afforded by 42 U.S.C. § 1983.”
Estate of Bennett v.
Wainwright, 548 F.3d 155, 178–79 (1st Cir. 2008). Thus, because the Maine Civil
Rights Act claim arises from the same alleged violations that form the basis for the §
1983 claims, a separate analysis is not required, and summary judgment on that
claim is warranted. See Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (“The
disposition of a 42 U.S.C. § 1983 claim also controls a claim under the MCRA.” (citing
Dimmitt v. Ockenfels, 220 F.R.D. 116, 123 (D. Me. 2004))). In addition, the right to
quiet enjoyment is a duty that exists between landlords and tenants, and an action
for a breach of that duty lies against a landlord. See State v. DeCoster, 653 A.2d 891,
894 (Me. 1995); see generally 41 A.L.R.2d 1414 (2020). Thus, the Defendants are
entitled to summary judgment on this issue as well.
23
C.
Unlawful Conspiracy Claims
Johnson and Welch’s complaints allege that the Defendants acted in concert to
deny the protections of the United States Constitution to the victims under 42 U.S.C.
§ 1985(3).
Specifically, they argue that Pak “made his intentions to harm the
Plaintiffs clear to Officer Dexter” and that Officer Dexter was “complicit in Pak’s
actions” by failing to arrest him. ECF No. 79 at 3.
To prevail on a § 1985(3) claim, a plaintiff must establish four elements: (1) a
conspiracy; (2) to deprive the plaintiff of the equal protection of the laws; (3) an overt
act in furtherance of the conspiracy; and (4) either an injury to person or property, or
a deprivation of a constitutionally protected right. Parker v. Landry, 935 F.3d 9, 17–
18 (1st Cir. 2019) (citing Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st
Cir. 2008)).
Here, the Plaintiffs cannot establish the first required element—the existence
of a conspiracy—which is the cornerstone of any civil conspiracy claim. Summary
judgment is “appropriate on a conspiracy claim where the nonmoving party rests
merely on conclusory allegations.” Estate of Bennett, 548 F.3d at 178. The Plaintiffs
offer no evidence to support a conspiracy beyond the fact that Officer Dexter met with
and spoke to Pak on December 29, 2012, and that Pak subsequently attacked the
victims.
It is undisputed that Pak had threatened the victims before he ever
interacted with Officer Dexter and that the WatchGuard recording accurately
captured Officer Dexter’s conversation with Pak. The Plaintiffs have not pointed to
any statements demonstrating an agreement between Officer Dexter and Pak giving
24
rise to a conspiracy. The Plaintiffs’ allegations of a conspiracy involving Officer
Dexter are no more than conclusory. See, e.g., id.
Furthermore, “[i]t has long been established that a claim under § 1985(3)
requires ‘some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.’” Pérez-Sánchez, 531 F.3d at 107 (quoting
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
Here, the Plaintiffs have not
identified any facts that would prove such discriminatory animus. I therefore grant
the Defendants’ motion for summary judgment as to the § 1985 claims.
In addition to the § 1985 claims, Welch’s complaint also pleads a claim of civil
conspiracy under Maine law. To prevail on a civil conspiracy claim, a plaintiff must
establish five elements, similar to those of a § 1985(3) claim: “(1) two or more persons;
(2) an object to be accomplished; (3) a meeting of minds on the object or course of
action; (4) one or more unlawful acts; and (5) damages.” Smith v. Coyne, No. CV-03405, 2004 WL 1433638, at *4 (Me. Super. Ct. Apr. 12, 2004) (quoting Sebago, Inc. v.
Pena, CV-99-226, 1999 WL 35298380, at *4 (Me. Super. Ct. July 8, 1999)). As in the
§ 1985 context, the Plaintiffs have not demonstrated any facts making out a civil
conspiracy.
In addition, because civil conspiracy is not “an independent tort in
Maine,” liability ordinarily may not be imposed on this basis alone. Fiacco v. Sigma
Alpha Epsilon Fraternity, 484 F. Supp. 2d 158, 176 & n.18 (D. Me. 2007) (citing Cohen
v. Bowdoin, 288 A.2d 106, 110 (Me. 1972)), aff’d, 528 F.3d 94 (1st Cir. 2008). I
therefore grant the Defendants’ motion for summary judgment as to the civil
conspiracy claim as well.
25
D.
Assault and Battery on Susan Johnson
Johnson’s complaint alleges that the Defendants’ actions and omissions caused
Johnson to sustain injuries from gunshot wounds inflicted by Pak, constituting an
assault and battery under Maine law. “An actor is subject to liability to another for
battery if (a) he acts intending to cause a harmful or offensive contact with the [body]
of the other [person] or a third person, . . ., and (b) a harmful contact with the [body]
of the other [person] directly or indirectly results.” Borlawsky v. Town of Windham,
No. cv-99-426, 2004 WL 1433634, at *5 (Me. Super. Ct. Mar. 30, 2004) (quoting
Restatement (Second) of Torts § 13 (1965)). To demonstrate intent, Johnson contends
only that Officer Dexter conspired with Pak to intentionally harm Johnson. As I have
explained, there is no evidence establishing a conspiracy between Officer Dexter and
Pak. I therefore grant the Defendants’ motion for summary judgment as to the
assault and battery claim.
E.
Negligence; Negligent and Intentional Infliction of Emotional Distress
Johnson’s complaint alleges that the Defendants negligently or intentionally
inflicted emotional distress on Johnson, Thompson, and B.L., and the Welch
complaint alleges that the Defendants breached a duty of care they owed to Welch.
In opposing these common law claims, the Defendants contend that they are entitled
to summary judgment based on the immunity afforded them by the Maine Tort
Claims Act, 14 M.R.S.A. § 8111. The Act provides:
Notwithstanding any liability that may have existed at common law,
employees of governmental entities shall be absolutely immune from
personal civil liability for . . . [p]erforming or failing to perform any
discretionary function or duty, whether or not the discretion is abused;
26
and whether or not any statute, charter, ordinance, order, resolution,
rule or resolve under which the discretionary function or duty is
performed is valid.
14 M.R.S.A. § 8111(1)(C) (West 2020).
In reviewing assertions of discretionary function immunity under the Maine
Tort Claims Act, the Law Court generally employs a multi-factor test aimed at
determining whether the governmental employee was performing an official function
or duty and whether that function or duty was discretionary. See Lawson v. Willis,
204 A.3d 133, 136 (Me. 2019); Carroll v. City of Portland, 736 A.2d 279, 282–83 (Me.
1999). “A discretionary act requires judgment or choice” unlike a ministerial act
which “is mandatory.” Carroll, 736 A.2d at 283 (emphasis omitted). A police officer’s
decision about whether to make a warrantless arrest is a discretionary function, see
Leach v. Betters, 599 A.2d 424, 426 (Me. 1991), as are an officer’s decisions about
investigating crimes and protecting citizens from harm, see Palm v. Kennebec Cty.
Sheriff’s Office, Civil No. 7-102-B-H, 2008 WL 3978214, at *4 (D. Me. Aug. 21, 2008).
Thus, the officers were performing discretionary functions when they decided not to
arrest Pak, investigate further, or take additional affirmative steps to protect the
victims. Further, it is undisputed that the police officer defendants were performing
official duties when they acted on December 29, 2012. Accordingly, they are immune
from civil liability under the Maine Tort Claims Act.
The Plaintiffs point out that the immunity afforded by the Act is not absolute
and argue that it does not shield the officers from liability if they exceeded the scope
of their discretion. Where a “defendant’s egregious conduct clearly exceeded, as a
matter of law, the scope of any discretion that he could have possessed in his official
27
capacity as a police officer,” he is not entitled to immunity under the Maine Tort
Claims Act. Polley v. Atwell, 581 A.2d 410, 413–14 (Me. 1990) (discussing MacKerron
v. Madison, 474 A.2d 166 (Me. 1984)). For the reasons I have previously discussed,
however, the officers’ conduct here did not clearly exceed the scope of their discretion.
I therefore grant the Defendants’ summary judgment motion as to these counts. 16
F.
Wrongful Death Under 18-A M.R.S.A. § 2-804
Johnson’s complaint alleges that the Defendants’ actions establish liability
under Maine’s wrongful death statute, 18-A M.R.S.A § 2-804(a). The statute provides
that “[w]henever the death of a person shall be caused by a wrongful act, neglect or
default . . . , then the person or the corporation that would have been liable if death
had not ensued shall be liable for damages as provided in this section,
notwithstanding the death of the person injured.” 18-A M.R.S.A. § 2-804(a) (repealed
2019). The wrongful death statute, however, “simply provide[s] a means for a claim
by a decedent’s personal representative.” Jackson v. Town of Waldoboro, 751 F. Supp.
2d 263, 276 n.13 (D. Me. 2010). “[I]t does not confer any separate cause of action, but
depends on an independent cause of action to exist under the law.” Id. I therefore
grant the Defendants’ motion for summary judgment as to this claim.
III. CONCLUSION
The events of December 29, 2012, as depicted by the summary judgment
record, were horrifying and tragic. One may reasonably ask whether James Pak’s
16 Johnson and Welch bring these claims against all the defendants, not just Officer Dexter and Officer
Wolterbeek, but they have not identified a separate basis upon which the other defendants could be held liable.
Because “[g]overnmental entities are likewise immune from liability for discretionary functions,” Lawson, 204
A.3d at 136 (citing 14 M.R.S. § 8104-B(3) (2018)), I grant the Defendants’ motion as to all of the remaining
Defendants.
28
crimes might have been prevented if the police had taken additional affirmative steps
to protect the victims in response to the 9-1-1 call. Yet, as the Supreme Court
emphasized in DeShaney, judges must exercise restraint in cases such as this and
remain mindful of their “natural sympathy” and tendency to search for a way to
compensate plaintiffs for the grievous harm that they have endured. DeShaney, 489
U.S. at 202–03. Having carefully examined the voluminous record created by the
parties and the applicable statutes and precedents that must inform my judgment in
this difficult case, I conclude that the Defendants are not civilly liable for the harm
brought about by the heinous crimes of James Pak. Thus, I grant the Defendants’
Motion for Summary Judgment (ECF No. 66) in its entirety.
SO ORDERED.
Dated this 15th day of April, 2020.
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
29
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