United States District Court, D. Maine
BRITTANY IRISH, individually and as personal representative of the estate of KYLE HEWITT, deceased, and KIMBERLY IRISH, Plaintiffs,
STATE OF MAINE, STATE POLICE OF THE STATE OF MAINE, and JOHN AND/OR JANE DOES, STATE POLICE OFFICERS 1-10, Defendants.
ORDER ON MOTION TO DISMISS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
case arises out of a terrible tragedy that took place in
Aroostook and Penobscot Counties, Maine, in July of 2015,
when the former boyfriend of Brittany Irish entered her
house, shot and killed her new boyfriend, shot and grievously
wounded her mother, and abducted her. Ms. Irish, her mother,
and the estate of her deceased boyfriend filed a civil action
against the state of Maine, the Maine State Police, and a
number of police officers on the ground that, despite
explicit warnings from Ms. Irish, the police notified her old
boyfriend that she had gone to the police to complain that he
had sexually assaulted her and then the Defendants had failed
to protect them from the ensuing harm. Even though the facts
in this case are especially compelling, the Court has
concluded that the law does not allow the Plaintiffs'
lawsuit to continue against these governmental Defendants and
therefore grants the Defendants' motion to dismiss.
December 10, 2015, Brittany Irish, individually and as
personal representative of the estate of Kyle Hewitt,
deceased, and Kimberly Irish (Plaintiffs) filed a three-count
complaint in this Court, bringing a civil rights action
against the state of Maine, the Maine State Police, and ten
certain known and unknown state of Maine police officers
(Defendants). Compl. at 1 (ECF No. 1)
(Compl.). The Defendants filed a motion to dismiss
the Complaint on February 19, 2016. Defs.' Mot. to
Dismiss Compl. (ECF No. 4) (Defs.' Mot.).
On February 22, 2016, the Plaintiffs filed a response to the
Defendants' motion. Pls.' Opp'n to Defs.'
Mot. to Dismiss [Dkt. No. 4] (ECF No. 5) (Pls.'
Opp'n). The Defendants filed a reply to the
Plaintiffs' response on February 24, 2016. Defs.'
Reply in Supp. of Mot. to Dismiss Compl. (ECF No. 6)
Irish met Anthony Lord over four years ago, at which time Mr.
Lord was a registered sex offender. Compl.
¶¶ 9-10. In 2011, for herself and on behalf of her
son, J., Ms. Irish obtained a Protection from Abuse (PFA)
order against Mr. Lord; the PFA lasted two years and expired
in 2013. Id. ¶ 11. Also in 2013, Ms. Irish
began residing with Kyle Hewitt. Id. ¶ 12.
Later in 2013, Ms. Irish reconciled with Mr. Lord and began
living with him in Millinocket, Maine. Id. ¶
13. In approximately May, 2013, Ms. Irish and her son resumed
living with Mr. Hewitt in Old Town, Maine; in March, 2014,
Ms. Irish's son, J., Ms. Irish, Mr. Hewitt, and their
newborn son, B., moved to Bangor, Maine. Id. ¶
March, 2015, while separated from Mr. Hewitt, Ms. Irish
“reconnected with Lord and remained in a friendship
relationship with Lord for a number of weeks.”
Id. ¶ 16. However, by late April or early May,
2015, Mr. Lord began threatening and harassing Ms. Irish and
conveyed to her his desire for the relationship to become
intimate, including using explicit sexual communications.
Id. Ms. Irish immediately contacted the Bangor
Police Department, which recommended that she stay away from
and obtain a PFA order against Mr. Lord. Id. ¶
17. On or about July 6, 2015, as she “made plans”
to obtain a PFA order, Ms. Irish resumed living with Mr.
Hewitt. Id. ¶ 18. On July 14, 2015, Ms. Irish
met with Mr. Lord at his request at a local IGA food store;
there, Mr. Lord abducted Ms. Irish and drove her to rural
Aroostook County, Maine, where he repeatedly sexually
assaulted her, strangled her with a seatbelt, and threatened
to kill her. Id. ¶ 20. Mr. Lord specifically
threatened to kill her if she reported the sexual assaults.
Id. Ms. Irish believed Mr. Lord was sexually
obsessed with her, and Mr. Lord indicated to Ms. Irish he was
suicidal. Id. ¶ 21.
following day, July 15, 2015, Ms. Irish went to her local
hospital and submitted to a rape kit evaluation. Id.
¶ 22. Later that day, Ms. Irish reported to the Bangor
Police Department that she had been sexually assaulted by Mr.
Lord; because the abduction and assault occurred in two
counties (Penobscot and Aroostook) the Bangor Police
Department referred Ms. Irish to the Maine State Police.
Id. The Maine State Police asked Ms. Irish to drop
off a written statement the next day. Id.
16, 2015, Mr. Lord asked Ms. Irish to meet with him to
“talk about what had happened.” Id.
¶ 24. Ms. Irish advised the Maine State Police of the
conversation and asked that she meet with Mr. Lord to
“elicit a confession from him, ” and that she
“could wear a wire or be otherwise monitored, ”
believing she could “keep him stable and herself
safe.” Id. The Maine State Police refused Ms.
Irish's request, stating “that's not the way we
do it.” Id. ¶ 25. Instead, the Maine
State Police told Ms. Irish that they were going to call Mr.
Lord, tell him that she had alleged that he sexually
assaulted her, and ask Mr. Lord to meet with the Maine State
Police “to give his side of the story.”
Id. Ms. Irish told the Maine State Police that
“she was afraid that that would incite Lord to terrible
violence and that she would not thereupon be safe.”
Id. ¶ 26. Later that day, unidentified members
of the Maine State Police told Ms. Irish that they had left a
voice message for Mr. Lord advising him of her accusations
and “asking him to come to the local State Police
barracks.” Id. ¶ 27.
two hours later, on July 16, 2015, Ms. Irish learned that her
parents' barn in Benedicta, Maine was on fire, and Ms.
Irish “immediately suspected that Lord had set the
fire.” Id. ¶¶ 28-29. Ms. Irish
contacted the Maine State Police and, with Mr. Hewitt,
traveled to her parents' home in Benedicta. Id.
¶ 30. In Benedicta later that day, Ms. Irish met with
two state troopers. Id. ¶ 31. While she was
meeting with the state troopers, Ms. Irish received a
telephone call from her brother's friend. Id.
¶ 32. The friend stated that a friend of Mr. Lord's
had stated that when Mr. Lord received the voice message from
the Maine State Police he became “immediately incensed
and agitated and had indicated that ‘someone was going
to die tonight, '” and had “expressly stated
that he was going to kill someone that night due to the State
Police call.” Id. Ms. Irish then asked the
state troopers to assign someone to protect her and her
children overnight. Id. ¶ 33. The state
troopers told her that “they could not spare the
manpower to protect anyone but would, rather, ‘keep an
eye on the situation.'” Id. Ms.
Irish's mother, Kimberly Irish, asked the state troopers
to park a police car outside of their house overnight because
“she felt that that ruse, at least, would keep Lord
away”; the state troopers replied “that they
could not even spare a car.” Id. ¶ 34.
evening, on July 16, 2015, “several State Police cars
were observed approximately eleven miles away ‘dumpster
diving, ' apparently looking for accelerant from the
Benedicta fire.” Id. ¶ 35. Later that
evening, Ms. Irish called the Maine State Police “to
inquire, again, why no State Police officer or car was
stationed at the home when it was obvious that Lord was
incensed by the State Police call which he had received
advising him of Brittany Irish's claim of rape and which
had inspired his death threats.” Id. ¶
36. Early on the morning of July 17, 2015, while Ms. Irish,
her mother, Kimberly Irish, and Mr. Hewitt were asleep in the
Benedicta home, Mr. Lord entered the house, shot and killed
Mr. Hewitt, shot and grievously wounded Kimberly Irish, and
again abducted Brittany Irish. Id. ¶ 37. While
driving in his vehicle with Ms. Irish as a hostage, Mr. Lord
engaged in a shoot-out which left another individual dead;
Mr. Lord was later apprehended. Id. ¶ 38.
Plaintiffs' Complaint alleges generally that the
Defendants are liable under 42 U.S.C. §
for violating the Plaintiffs' constitutional rights,
including their substantive due process rights. Applying
United States Supreme Court precedent,  the Court finds
that 42 U.S.C. § 1983 provides a potential cause of
action for the Plaintiffs' claims.
alleges that the state of Maine, the Maine State Police, and
the ten individual John and/or Jane Doe state of Maine police
officers directly violated the Plaintiffs' constitutional
rights by “refusing and/or failing to provide
protection” to the Plaintiffs and putting them in
danger, and alternatively that the Defendants violated a
“special duty” owed to the Plaintiffs because of
the Defendants' “implicit and/or express promise to
protect” the Plaintiffs. Id. ¶¶
II alleges a violation of the Plaintiffs' substantive
constitutional rights resulted from the failure of some of
the John and/or Jane Doe State Police Officer Defendants to
“properly supervise, educate, instruct, train, and/or
control” other Doe Defendants. Id.
III alleges that the state of Maine and the Maine State
Police are liable, either vicariously or under a theory of
respondeat superior, for the acts of the individual John
and/or Jane Doe Defendants. Id. ¶¶ 51-53.
Defendants' Motion to Dismiss
Defendants contend that the claims against the state of Maine
and the Maine State Police should be dismissed because states
and their agencies are not “persons” within the
meaning of 42 U.S.C. § 1983 and thus are not subject to
§ 1983 liability. Defs.' Mot. at 5-6
(collecting cases). Moreover, the Defendants argue that even
if the state of Maine and the Maine State Police are
“persons” within the meaning of § 1983, they
are protected from suit by the doctrine of sovereign immunity
and by the Eleventh Amendment, as Maine has not consented to
this lawsuit and, in enacting § 1983, Congress has not
abrogated the States' sovereign immunity. Id. at
citing the Supreme Court's decision in DeShaney v.
Winnebago County, Department of Social Services, the
Defendants argue the Plaintiffs have failed to state a claim
that any police officer is responsible for the harms caused
by Mr. Lord, as generally “a State's failure to
protect an individual against private violence simply does
not constitute a violation of the Due Process Clause.”
Id. at 7 (citing 489 U.S. 189, 197 (1989)). The
Defendants also deny that any exceptions to DeShaney
apply to the Plaintiffs. See Id. 8-12. Specifically,
the Defendants maintain that as alleged, the facts do not
suggest that any officer made any promise to protect the
Plaintiffs from Mr. Lord, and more specifically that
“[w]hile officers allegedly told [Ms. Irish] that they
would ‘keep an eye on the situation, ' this was in
no way an implicit or express promise of protection,
especially given that the officers allegedly told [Ms. Irish]
expressly that they ‘could not spare the manpower to
protect anyone.'” Id. at 8. Again citing
DeShaney, in addition to First Circuit caselaw, the
Defendants contend that even if police officers promised to
protect the Plaintiffs,  there was no “special duty”
placed on the police officers because “[t]he
affirmative duty to protect arises not from the State's
knowledge of the individual's predicament or from its
expressions of intent to help him, ” but only when the
state takes a person into its custody and holds him against
his will. Id. at 8-9 (quoting 489 U.S. at 200).
the Defendants submit that none of the unidentified police
officers created or substantially contributed to the danger
posed by Mr. Lord, heading off assertions of a constitutional
violation against the police officers' failure to protect
against private violence under the “state-created
danger theory.” Id. at 9. The Defendants
contend this theory applies only if the “state actors
have taken affirmative acts to create or exacerbate
the danger posed by third parties, ” id. at 10
(emphasis provided by Defendants), and that the First Circuit
case of Rivera v. Rhode Island, 402 F.3d 27 (1st
Cir. 2005), forecloses any liability for the police
officers' affirmative act of calling Mr. Lord and
informing him of Ms. Irish's sexual assault allegations,
as the First Circuit concluded that identifying witnesses and
taking their statements does not impose constitutional
liability on the state, even if it enhances the danger to the
witness. Id. at 10-11 (citing Rivera, 402
F.3d at 37).
Defendants further argue that in order to be successful on a
substantive due process claim, the First Circuit requires
that a state actor's conduct be “so egregious as to
shock the conscience” and the Plaintiffs have not
alleged sufficient facts to satisfy this element.
Id. at 12 (collecting cases). Specifically, they
assert that “it is impossible to see how police engage
in conscience-shocking conduct simply by conducting the
routine investigatory step of seeking to interview the
alleged perpetrator of a serious crime.” Id.
the Defendants contend that even if the Plaintiffs have
stated a substantive due process claim, the state police
officers, as government officials, are entitled to qualified
immunity. Id. The Defendants explain that government
officials “are entitled to qualified immunity unless
(1) ‘the facts that a plaintiff has alleged or shown
make out a violation of a constitutional right' and (2)
‘the right at issue was ‘clearly established'
at the time of their alleged misconduct, '” and
note that the second, “clearly established” prong
has two aspects: (1) the “clarity of the law at the
time of the alleged civil rights violation, ” and (2)
“the facts of the particular case and whether a
reasonable defendant would have understood that his conduct
violated the plaintiffs' constitutional rights.”
Id. at 14 (citing Walden v. City of
Providence, 596 F.3d 38, 52 (1st Cir. 2010)). The
Defendants argue that if the Court were to find an alleged
constitutional violation, given that “neither the
Supreme Court nor the First Circuit has ever recognized the
state-created danger theory or held that promises of
protection give rise to a constitutional duty, ”
“the officers could not possibly have had fair warning
[that their actions] were somehow violating plaintiffs'
substantive due process rights, ” particularly because
the Defendants could not have understood that their decisions
rose to the level of “conscious-shocking”
behavior. Id. at 15.
the supervisory liability claim, the Defendants assert that
without a valid substantive due process claim there can be no
vicarious liability, but even if the Court were to find a
constitutional violation and that qualified immunity did not
apply, the Plaintiffs' claim still must fail because
“[i]t is well established that ‘vicarious
liability is inapplicable to . . . § 1983 suits,
'” as it must be pleaded “that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”
Id. at 15-16 (citing Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009)). Moreover, the Defendants argue that
the Plaintiffs' allegations of certain officers'
failure to train and supervise are vague and insufficient to
support a supervisor liability claim. Id. at 17.
Lastly, regarding the respondeat superior and vicarious
liability claims, Defendants submit that the state of Maine
and the Maine State Police could not be liable, as neither
can be subject to § 1983 claims, and even if they could,
respondeat superior and vicarious liability do not apply
under § 1983. Id. at 17.
Plaintiffs respond that, whereas a state's failure to
protect an individual against private violence does not
ordinarily constitute a constitutional violation, “that
general principle is not absolute and an affirmative,
constitutional duty to protect arises where the State, as
here, creates the danger to an individual, ” and
“that general principle may be obviated where a
‘special relationship' exists between the parties
which requires that the State provide reasonable
protection.” Pls.' Opp'n at 7.
Plaintiffs maintain that “when the state enters into a
special relationship with a particular citizen, it may be
held liable for failing to protect him or her from the
private actions of third parties, ” and they argue
“[a]ppellate (and trial) courts from across the country
have found a ‘special relationship' to ...