Irish v. Fowler
979 F.3d 65
1st Cir.2020Background
- July 2015: Brittany Irish reported that Anthony Lord had kidnapped and raped her and threatened extreme violence; MSP Detectives Micah Perkins and Jason Fowler investigated.
- Detectives told Irish not to alert Lord, then left a voicemail to Lord identifying themselves as state police and asking him to call back; they had not run a background check or located him.
- Over several hours the detectives delayed running criminal/probation checks, declined to provide requested protection, withdrew resources from the area without informing the plaintiffs, and gave Irish reassurances of police presence that a jury could find false.
- After the voicemail and the police withdrawal, Lord murdered Irish’s boyfriend, shot her mother, kidnapped and raped Irish for about nine hours, and committed other killings before capture.
- District court: found triable issues that defendants violated substantive due process under a state-created danger theory but granted the officers qualified immunity.
- First Circuit: held a state-created danger substantive due process claim is viable on these facts and reversed grant of qualified immunity, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Viability of a state-created danger substantive due process claim | Perkins/Fowler affirmatively acted (voicemail, misleading assurances, withdrawal of resources) and thereby created/enhanced a particularized danger to Irish and her family | Investigative steps cannot be the basis for state-created danger; Rivera forecloses such claims here | First Circuit adopts a four-part test and holds the claim can proceed; a jury could find the officers affirmatively created/enhanced a danger |
| Mental state / "shock the conscience" standard | Where officers had time to deliberate, deliberate indifference to a known, substantial risk suffices | Conduct did not rise to conscience-shocking level | Court: deliberate indifference may suffice given unhurried decisions; jury could find conscience-shocking conduct |
| Qualified immunity / clearly established law | A robust consensus of other circuits had already recognized state-created danger, giving officers fair warning their conduct could be unconstitutional | First Circuit had not previously applied the doctrine; circuit splits meant law was not clearly established | Court: consensus among circuits and prior First Circuit guidance (e.g., Rivera) clearly established the rule; qualified immunity reversed |
| Relevance of violations of state law/police procedure | Violations of MSP policy and state statutes are relevant to whether conduct was conscience-shocking and whether a reasonable officer would know the conduct was unlawful | Such procedural or statutory violations do not, by themselves, establish a constitutional violation | Court: breaches of policy/procedure are probative on conscience-shocking and qualified immunity inquiries and may bolster plaintiffs' claims |
Key Cases Cited
- DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (Supreme Court 1989) (general rule that state’s failure to protect from private violence does not alone violate Due Process)
- Rivera v. Rhode Island, 402 F.3d 27 (1st Cir. 2005) (First Circuit’s prior exposition of state-created danger elements)
- Irish v. Maine, 849 F.3d 521 (1st Cir. 2017) (earlier panel opinion vacating dismissal and discussing state-created danger)
- Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006) (factually similar case holding triable state-created danger claim and that law was clearly established)
- Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998) (police disclosure led to murder; qualified immunity denied)
- Sanford v. Stiles, 456 F.3d 298 (3d Cir. 2006) (Third Circuit articulation of state-created danger test relied on by district court)
- Hope v. Pelzer, 536 U.S. 730 (Supreme Court 2002) (clearly established right need not be factually identical; officials can be on notice in novel circumstances)
- District of Columbia v. Wesby, 138 S. Ct. 577 (Supreme Court 2018) (standard for the "clearly established" prong of qualified immunity)
- Coyne v. Cronin, 386 F.3d 280 (1st Cir. 2004) (First Circuit formulation that liability requires an affirmative act increasing the threat)