BRITTANY IRISH, Individually and as Personal Representative of the Estate of KYLE HEWITT, and KIMBERLY IRISH, Plaintiffs, Appellants,
STATE OF MAINE; STATE POLICE OF THE STATE OF MAINE; and JOHN and/or JANE DOES, STATE POLICE OFFICERS 1-10, Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District
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
Lynch, Thompson, and Barron, Circuit Judges.
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.
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."
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. The court also found that qualified
immunity shielded from liability the ten unidentified State
Police officers named as defendants.
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.
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.
recite the facts as alleged in the Irishes' complaint but
note where key information is left wanting.
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.
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 ...