Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Irish v. State of Maine

United States Court of Appeals, First Circuit

March 1, 2017

BRITTANY IRISH, Individually and as Personal Representative of the Estate of KYLE HEWITT, and KIMBERLY IRISH, Plaintiffs, Appellants,


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

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

          Before Lynch, Thompson, and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         Plaintiffs Brittany and Kimberly Irish (together, "the Irishes") brought this 42 U.S.C. § 1983 action against Maine State Police officers after Anthony Lord, a former boyfriend of Brittany Irish ("Irish"), broke into her parents' home, fatally shot her boyfriend (Kyle Hewitt), shot and grievously wounded her mother (plaintiff Kimberly Irish), abducted her, and engaged in a shootout with Maine State Police officers during which another individual was fatally shot.

         The complaint alleges that Lord commenced this violent rampage after and because a State Police officer left Lord a voice message, which notified him that Irish had made a complaint about Lord's serious violent crimes against her earlier, and then did little more than ask Lord to come to the local State Police barracks to be interviewed. The officer left Lord this message despite Irish's explicit request that the State Police refrain from doing so out of her fear that this action would incite further violence from Lord. The timing of the events suggests that she was correct in her fears. The complaint alleges that the Irishes' losses "ar[o]se out of failures by Defendants to protect them from dangers which Defendants themselves created."

         On motion by the defendants, the district court dismissed the Irishes' complaint at the 12(b)(6) stage, holding that their factual allegations did not amount to a state-created danger as would be necessary to maintain a substantive due process claim on these facts. The court heavily relied on Rivera v. Rhode Island, 402 F.3d 27 (1st Cir. 2005), to explain its decision.[1] The court also found that qualified immunity shielded from liability the ten unidentified State Police officers named as defendants.

         We cannot conclude at this very early stage of the proceedings that, in consequence of our decision in Rivera, the plaintiffs either failed to state a substantive due process claim or that the defendants are entitled to qualified immunity. All we have are a bare-bones complaint and a 12(b)(6) motion. We have many questions to which we would prefer to have answers. While both of these issues can certainly be decided at the motion to dismiss stage, see Wood v. Moss, 134 S.Ct. 2056, 2066 (2014); Rivera, 402 F.3d at 31, they are often decided after some factual development or at summary judgment, Plumhoff v. Rickard, 134 S.Ct. 2012, 2017 (2014); DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 193 (1989). As to qualified immunity, we recognize the Supreme Court's admonitions that it is "an immunity from suit rather than a mere defense to liability, " and should thus be decided early in litigation. Plumhoff, 134 S.Ct. at 2019 (citation omitted). But we are reluctant to make law in the absence of more facts. We thus send the case back to the district court for some development of facts material to those issues.

         We vacate the district court's ruling as to the individual defendants and remand the case with instructions that the parties be permitted to conduct discovery on relevant facts. The discovery should include facts on whether there was any departure from established police protocol or training on, inter alia, the manner in which the police should notify the accused of allegations filed against him or her; what exactly the State Police officers knew about the risk that Lord posed to Irish and when exactly they knew it; and what message they left for Lord. Whether or not the officers followed proper procedure and how much they knew about the attendant risks of leaving a casual voice message, in turn, may bear on the questions of whether Irish has a due process claim that can withstand a 12(b)(6) motion and whether the officers are entitled to qualified immunity.


         We recite the facts as alleged in the Irishes' complaint but note where key information is left wanting.

          Irish and Lord met through a mutual friend and carried on an on-again, off-again relationship. Lord was a registered sex offender when the two met and, in 2011, Irish obtained a Protection from Abuse ("PFA") order against Lord for herself and for her son. That two-year order expired in 2013. Although Irish had rekindled a friendship with Lord in March 2015, that relationship took a turn for the worse by the next month, when Lord began to "threaten[] and harass[]" Irish and send her "explicitly sexual communications." Irish notified the Bangor Police Department ("BPD") of Lord's behavior, and the BPD advised her to obtain another PFA order against Lord. On or about July 6, 2015, Irish began the process of obtaining that second order against Lord. In July 2015, Irish was living with her boyfriend, Hewitt, with whom she had had a second son the previous year.

         On July 14, 2015, Irish met with Lord at a local food store in Bangor, from which Lord abducted Irish and drove her to Aroostook County. There, he repeatedly raped her, strangled her with a seatbelt, and threatened to kill her. He specifically threatened to kill Irish if she reported the crime. The next day, on July 15, 2015, Irish submitted to a rape kit evaluation at her local hospital and reported what had happened to the BPD. The BPD referred her to the Maine State Police because the abduction and sexual assaults had taken place in two ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.