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Irish v. State

United States District Court, D. Maine

September 12, 2016

BRITTANY IRISH, individually and as personal representative of the estate of KYLE HEWITT, deceased, and KIMBERLY IRISH, Plaintiffs,



         This 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.

         I. BACKGROUND

         A. Procedural History

         On 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) (Defs.' Reply).

         B. Factual Background[1]

         Brittany 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. ¶ 14-15.

         In 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.

         The 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.

         On July 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.

         Approximately 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.

         That 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.

         C. The Complaint

         The Plaintiffs' Complaint alleges generally that the Defendants are liable under 42 U.S.C. § 1983[2] for violating the Plaintiffs' constitutional rights, including their substantive due process rights. Applying United States Supreme Court precedent, [3] the Court finds that 42 U.S.C. § 1983 provides a potential cause of action for the Plaintiffs' claims.[4]

         Count I 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. ¶¶ 39-44.

         Count 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. ¶¶ 45-50.

         Count 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.


         A. The Defendants' Motion to Dismiss

         The 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 6.

         Next, 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, [5] 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).

         Additionally, 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).

         The 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. at 13.

         Furthermore, 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.

         As to 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.

         B. The Plaintiffs' Response

         The 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.

         The 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 ...

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