The Fatal Cost of Inaction: Incentivizing a Police Officer’s Avoidance Through Qualified Immunity Under the State-Created Danger Doctrine

Introduction

To protect and serve” is the motto of police departments across the country.¹ When an individual under threat of harm makes the choice to call the police, it is fair to assume that they expect help; they expect the police to intervene and stop crime.² No person would expect that police officers respond to their call with the intent to harm them or enact violence, but is it fair to assume that the police will take some steps to intervene against the threat and prevent the harm?³ Unfortunately, the law says no.⁴ Police are not mandated to intervene in these scenarios, and the doctrine of qualified immunity insulates law enforcement officers and other state actors from liability when tragedy results from their inaction.⁵ The First Circuit Court of Appeals recently affirmed a grant of qualified immunity for the responding officer in a Maine case where a landlord murdered two of his tenants just moments after the officer left the scene, calling into question the practical applications of that famous motto.⁶

This Comment will argue that the Court’s opinion in Johnson v. City of Biddeford failed to acknowledge the rights and expectations of individuals who seek police help, thereby incentivizing police inaction in a legal climate where qualified immunity is already unpopular. Part I details the development of the qualified immunity and state-created danger doctrines, both at issue in this case. Part II explores the procedural history of the case along with the First Circuit’s opinion. Part III discusses how the First Circuit ignored important facts in the case, as well as nuance in the law, to come to a decision that incentivizes police inaction. Finally, Part IV considers how the First Circuit’s opinion has weakened the legal doctrine and created harmful public policy implications.

I. Background

History of § 1983

The Fourteenth Amendment to the U.S. Constitution asserts that no State shall “deprive any person of life, liberty, or property, without due process of law.”⁷ During Reconstruction, police and other state officials terrorized Black people, prompting Congress to pass the Ku Klux Klan Act.⁸ This act, officially titled the Civil Rights Act of 1871 and known colloquially as “§ 1983,” gave individuals a cause of action to bring a civil suit against state actors who had violated their constitutional rights.⁹ The remedy was not widely used until Monroe v. Pape, a 1961 case that opened the doors for applying § 1983 in police brutality cases.¹⁰ There, thirteen Chicago police officers raided the Monroe family’s home, forcing them to stand naked in their own living room while the officers ransacked each part of the house.¹¹ The officers then detained Mr. Monroe for hours and interrogated him without access to an attorney, with no warrant ever obtained and no criminal charges filed.¹² The Supreme Court of the United States (“SCOTUS”) explored the legislative history and intent behind the Ku Klux Klan Act, and interpreted the language of § 1983 as providing the Monroe family a cause of action against the officers who harmed them while acting “under color of the statutes, ordinances, regulations, customs and usages’ of Illinois and of the City of Chicago.”¹³

Police Immunity

1. Qualified Immunity

If an individual claims in a civil lawsuit that a government official has violated the individual’s rights in some way, qualified immunity can shield that official from liability.¹⁴ Rather than being a typical defense that is argued during the lawsuit, qualified immunity prevents the claim from being litigated at all––if the official meets the standard.¹⁵ Qualified immunity is a judicially created doctrine designed to balance the interest in holding officials accountable for wrongful acts and the interest in preventing harassment and distraction of officials who act reasonably.¹⁶ The doctrine often is applied where police officers are sued under § 1983 for civil rights violations.¹⁷

The modern standard for analyzing qualified immunity cases was established in Harlow v. Fitzgerald, where SCOTUS eliminated a previously required good faith prong of the analysis and introduced the “clearly established” test.¹⁸ A defendant state actor is entitled to qualified immunity as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”¹⁹ Since this change, SCOTUS has increasingly raised the burden on plaintiffs seeking to bring civil rights claims against state officers.²⁰ SCOTUS added a new layer to the qualified immunity doctrine in Pearson v. Callahan when it decided that lower courts had discretion to avoid deciding whether a plaintiff’s constitutional rights were violated in the first place.²¹ While the Court justified this holding with extensive explanation,²² the result has been a less comprehensive “state of the law” against which plaintiffs can judge an officer’s conduct.²³

2. State-Created Danger Doctrine

In DeShaney v. Winnebago County Department of Social Services, SCOTUS held that state actors do not have an affirmative duty to protect individuals from private harm.²⁴ The case centered around a young boy, Joshua DeShaney, who was profoundly beaten by his father resulting in a permanent and severe disability.²⁵ The Wisconsin Department of Social Services had been heavily involved with the family, and DeShaney’s lawsuit alleged that its failure to protect Joshua deprived him of his constitutional rights.²⁶ The DeShaney Court drew a firm line between state action and inaction, holding that the latter could not constitute a violation under the Fourteenth Amendment, though the dissent argued that “inaction can be every bit as abusive of power as action.”²⁷

Within DeShaney, however, lies a statement that courts have used to impose liability where state actors have failed to protect individuals from harm in certain situations.²⁸ The DeShaney Court noted that the state had no role in creating the dangers that the plaintiff faced, nor did it increase his susceptibility.²⁹ Many federal courts have interpreted this to mean that if a state actor somehow creates or enhances a danger facing a private individual then fails to protect against that danger, they may face liability for violating that person’s constitutional rights.³⁰ This is known as the state-created danger doctrine, and while many courts consider it an exception to qualified immunity in § 1983 cases, SCOTUS has never ruled on it. ³¹

The First Circuit examined this state-created danger doctrine in Rivera v. Rhode Island, where it emphasized a burdensome additional requirement that a plaintiff must prove: the conduct “must shock the conscience of the Court.”³² Notably, the Court stated that deliberate indifference may be sufficiently shocking in a situation where the officer can make rational decisions and reflect on their choices.³³ In § 1983 cases, the state-created danger doctrine can force officers to defend themselves against suit when their negligence or failure to act would otherwise result in qualified immunity.[mn]Behar, supra note 31.[/mfn]

II. The Court’s Opinion

Facts

On December 29, 2012, Susan Johnson and her sons Derrick Thompson (18 years old) and B.L. (6 years old) were at their apartment.³⁴ Thompson’s girlfriend Alivia Welch was also present.³⁵ Johnson and Thompson rented the apartment attached to James Pak’s residence, for which Pak and his wife, Armit, were the landlords.³⁶ The group had been in disputes over the rental agreement, and Pak approached Thompson that night while Thompson was outside shoveling snow.³⁷

Johnson instructed Thompson to call the police after Pak gestured with his hand in a gun motion and said “bang.” Johnson got part of the interaction on video.³⁸ Thompson told the dispatcher that his landlord was “freaking out” and had made death threats, and the group waited inside for the police to arrive.³⁹ Officer Edward Dexter of the Biddeford, Maine, Police Department responded to the scene.⁴⁰ Thompson and Johnson showed Dexter the video and recounted the issues that they had with Pak, including harassment, sexual gestures and comments, and Pak daring Thompson to hit him so that he could “bury [Thompson] in the snow.”⁴¹ Dexter asked if Thompson ever “actually” felt threatened, and Thompson stated he felt more harassed, and that Pak got in his face.⁴² Thompson stated that the biggest argument was over the extra car in the driveway, which Officer Dexter stated was a civil issue, but clarified that the threats and harassment were not allowed.⁴³ Officer Dexter advised the group to stay inside for the rest of the night and left to speak to Pak.⁴⁴

Armit answered the door and relayed their frustrations over the rental agreement, stating they had served an eviction notice on the tenants.⁴⁵ Pak joined the discussion and was visibly agitated and at times incoherent while the group spoke, even openly admitting to threatening to shoot Thompson.⁴⁶ Officer Dexter attempted to validate Pak’s frustration but stated that he could not make threats.⁴⁷ Pak again stated, “I can–I’d like to shoot him.”⁴⁸ Officer Dexter warned that if Pak threatened to shoot them, he would give Pak a summons for criminal threatening, though Pak had already admitted to the threats and angrily reiterated his intent to Dexter.⁴⁹ Pak and Officer Dexter continued back and forth about how the rental agreement dispute was a civil issue that had to be dealt with through the courts, and Pak expressed feeling as if he had no rights.⁵⁰ Officer Dexter warned Pak that if he threw the tenants’ belongings outside, he would be charged with criminal mischief and again said that the rental dispute was a civil issue that he could not address.⁵¹
Pak made several alarming statements including saying, “I ain’t got nothing to lose,” “[y]ou’re gonna see me in the newspaper,” and threatening a “bloody mess.”⁵² Officer Dexter directed Pak to stay away from the tenants and stated he was going to tell them the same thing.⁵³ Officer Dexter did not make any inquiries into Pak’s sobriety or access to weapons, nor did he initiate any mental health or criminal legal action against Pak.⁵⁴

Officer Dexter went back to follow up with Johnson and Thompson, restating the landlords’ frustrations over the rental agreement and encouraging the tenants to avoid Pak.⁵⁵ Johnson asked whether Pak was calm, to which Officer Dexter responded that calm was “not the best word.”⁵⁶ Officer Dexter stated they could call the police again if Pak damaged their vehicles, but did not offer anything further.⁵⁷

Within four minutes of Officer Dexter leaving the apartment, Pak entered with a gun and shot Johnson, Thompson, and Welch.⁵⁸ Welch and Thompson were killed; Johnson was left with extensive injuries, and Johnson’s young son B.L. was physically unharmed.⁵⁹ James Pak was arrested that night and later sentenced to life in prison for the two murders.⁶⁰

Procedural History

Johnson and the representative of Welch’s estate filed federal and state civil rights claims alleging inter alia that under the state-created danger doctrine, Officer Dexter violated the plaintiffs’ Fourteenth Amendment substantive due process rights.⁶¹ The District Court granted a motion for summary judgment on all claims for the defendant.⁶²

On initial appeal, the First Circuit remanded the case in part, noting that their decision in Irish v. Fowler (“Irish II”), which had been decided after the Johnson trial in District Court, bore on the lower court’s ruling as Irish II established the First Circuit’s state-created danger test.⁶³ The First Circuit suggested three ways that Irish II should be applied on remand.⁶⁴ First, the District Court had originally held that Officer Dexter’s conduct “did not amount to a requisite affirmative act that greatly increased the risk of danger.”⁶⁵ However, Irish II established that the standard is only whether or not the conduct enhanced the risk, so the requisite affirmative act issue needed to be reexamined.⁶⁶ Next, the Court suggested that Irish II’s deliberate indifference test may bear on the arguments and analysis.⁶⁷ Finally, the Court highlighted Irish II’s holding that “adherence to proper police procedure bears on all prongs of the qualified immunity analysis.”⁶⁸ The First Circuit affirmed the judgment in part, but remanded the civil rights claims, instructing the lower court to address the issue of Officer Dexter’s qualified immunity, applying Irish II.⁶⁹

On remand, the District Court found that Officer Dexter was entitled to and protected by qualified immunity, even though a jury could have reasonably found that he violated the plaintiffs’ Fourteenth Amendment rights.⁷⁰ Officer Dexter, according to the lower court, would not have known that his conduct was unconstitutional based on the “state of the law” in 2012.⁷¹ The plaintiffs appealed again, sending the case back to the First Circuit for a second time.⁷²

Holding & Reasoning

The Court laid out the test to determine whether an officer is entitled to qualified immunity, choosing not to address whether Officer Dexter committed any constitutional violations and opting only to examine the “clearly established” prong.⁷³ The test requires a showing of either controlling authority or a consensus of persuasive authority that would allow an officer to know whether his conduct was constitutional or not, as well as a showing that reasonable officers would have known that their conduct was unlawful.⁷⁴ The Court admitted that the reasonable officer prong is a “heavy burden”⁷⁵ and that qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law.”⁷⁶

Appellants argued that under the state-created danger doctrine, Officer Dexter’s conduct was such that an objectively reasonable officer would have known that it was unlawful.⁷⁷ The First Circuit looked to Irish II, decided in 2020, for the elements required to establish a Fourteenth Amendment claim under the state-created danger doctrine.⁷⁸ The state actor accused of the violation must have acted affirmatively to create or enhance a danger specific to the plaintiff, not just the general public, from which the plaintiff was harmed.⁷⁹ The state actor’s conduct must also “shock the conscience.”⁸⁰ The Court concluded that Officer Dexter’s conduct did not “shock the conscience” because he reasonably might have decided that Pak did not pose a substantial threat.⁸¹ The Court also concluded that in choosing to leave rather than acting in any way to assess or restrain Pak, Officer Dexter may have made a “serious misjudgment,” but his decision did not amount to unlawful conduct.⁸²

Finally, the Court concluded that the case law cited by the appellants did not clearly establish a basis to provide Officer Dexter notice of the unconstitutionality of his conduct.⁸³ Appellants presented two salient cases, Kennedy v. Ridgefield City from the Ninth Circuit and Monfils v. Taylor from the Seventh Circuit.⁸⁴ In Kennedy, the plaintiff reported that a young neighbor had molested her nine year-old daughter and was assured that she would be warned before police confronted the alleged assailant.⁸⁵ The thirteen year-old neighbor had a history of violence.⁸⁶ The officer confronted the assailant and his mother prior to warning the plaintiff, but promised to patrol the neighborhood that night and keep watch on the young neighbor.⁸⁷ Early the next morning, the neighbor broke in and shot the plaintiff and her husband, killing the husband.⁸⁸ In Monfils, a man made an anonymous tip reporting a coworker’s plan to commit theft.⁸⁹ The tipster begged police not to release the recording of their call as he was under threat by the coworker, and an officer assured the plaintiff the tape would remain unreleased.⁹⁰ That officer chose not to safeguard the tape despite the coworker actively attempting to obtain it; it was subsequently released, and six coworkers murdered the tipster after recognizing his voice.⁹¹

Both courts found that the officers were not entitled to qualified immunity because they created dangers that the plaintiffs “would not otherwise have faced.”⁹² The First Circuit distinguished both cases as showing each officer taking more affirmative action than Officer Dexter did and misrepresenting the level of protection the plaintiffs would receive.⁹³ Because the First Circuit found that Officer Dexter’s conduct did not rise to the level of harm present in the cited case law, it ruled that he could not have had fair warning whether his conduct in this case was constitutional or not.⁹⁴ Finding that the plaintiffs had not met their burden of proof, the Court affirmed the district court’s grant of qualified immunity.⁹⁵

Analysis

III. The First Circuit Incorrectly Interpreted the Qualified Immunity Doctrine, Thereby Taking a Police-Centered Approach and Incentivizing Inaction.

While the First Circuit has only recently recognized the state-created danger exception to qualified immunity, it does explicitly recognize that deliberate indifference can fulfill the analysis.⁹⁶ Irish II held that the defendant’s conduct must “shock the conscience,” and in a case where an officer has the time and ability to make level-headed decisions, deliberate indifference may be enough to do so.⁹⁷ To prove this, a plaintiff “‘must, at a bare minimum, demonstrate that [the defendant] actually knew of a substantial risk of serious harm . . . and disregarded that risk.’”⁹⁸

The Court in Johnson shut down each of the appellants’ arguments regarding Officer Dexter’s deliberate indifference.⁹⁹ First, the appellants argued that Officer Dexter’s affirming statements to Pak, regarding his lack of rights as a landlord, agitated him, thereby increasing the danger he posed.¹⁰⁰ The Court addressed this dismissively, saying that it was reasonable for Officer Dexter to have assumed that clarifying the civil process for landlord/tenant disputes and expressing sympathy would calm him down.¹⁰¹ However, this ignored the plain facts of the record that show Pak became increasingly agitated throughout his conversation with Officer Dexter.¹⁰² Statements such as “you say that I don’t have any right. They got right,” and later, “I just . . . don’t have any right? . . . You’re gonna see me in the newspaper,” collectively demonstrate that the message Pak was receiving from Officer Dexter was neither clarifying nor calming.¹⁰³ Pak’s statements of intent to harm the appellants also increased in violence and intensity as the interaction went on.¹⁰⁴ While, upon entering the conversation, it may have been reasonable for Officer Dexter to assume that expressing sympathy would help, at what point does it become unreasonable to carry on using a failing tactic?¹⁰⁵ Dexter should have recognized Pak’s growing agitation and deescalated him, but he chose to walk away.

The appellants also argued that Officer Dexter misrepresented Pak’s level of dangerousness when he followed up with them after his interaction with Pak.¹⁰⁶ The Court responded to this: “[w]e do not find in the facts alleged by the appellants any misstatements uttered by Officer Dexter about his interactions with Pak.”¹⁰⁷ This is problematic because a misstatement implies a lie, but a misrepresentation can come in the form of an omission.¹⁰⁸ The argument included that Officer Dexter failed to notify the appellants of the immediate threats Pak made against them, and the Court excused this by saying that Pak had already threatened to shoot Thompson directly.¹⁰⁹ Appellants did not accuse Officer Dexter of lying; they argued that he had knowledge of how urgent and severe the threats Pak conveyed to Officer Dexter were, and that his decision to not inform them was unreasonable.¹¹⁰ The Court failed to consider that Officer Dexter’s minimizing could have misled the appellants, even if he did not expressly lie to them, thereby leaving them more vulnerable than they would be had they known the severity of the threat against them.¹¹¹

The Court then addressed the related point that by only telling the appellants to avoid Pak, Officer Dexter caused them to be unaware of the immediate threat against their lives.¹¹² The Court’s response to this was, “Dexter reasonably could have believed that transmitting further graphic details of Pak’s threats to the appellants would have only served to escalate the conflict.”¹¹³ The Court signaled to Meléndez-García v. Sánchez, quoting, “even where the government is aware of specific dangers . . . it must perform a triage among competing demands”—this citation is illustrative.¹¹⁴ In Meléndez-García, a campus protest devolved into a riot where several individuals were assaulted, and an already-in-place non-confrontation policy discouraged police intervention.¹¹⁵ It is difficult to see how Officer Dexter faced a similar triage.¹¹⁶ Biddeford Police Department’s own operating procedure states that officers on duty “‘shall at all times take appropriate action’ to ‘protect life and property,’ ‘preserve the peace,’ ‘prevent crime,’ [and] ‘detect and arrest violators of the law.’”¹¹⁷ Where Officer Dexter was not himself under threat of harm—no physical violence was occurring at the time he spoke to Pak—and procedure instructed him to take action, what could the “competing demands” at issue possibly be?¹¹⁸ That citation calls into question Officer Dexter’s priorities as well as the Court’s.¹¹⁹

Throughout Officer Dexter’s interactions with the Paks and Johnson’s family, he repeatedly stated that the issue between the parties was civil, for which he could not do anything. ¹¹⁹Id. at 370–73. However, Johnson and her family did not ask Officer Dexter to solve their civil landlord-tenant dispute,¹²⁰ they called about threatening behavior and harassment—criminal matters well within Dexter’s power to address.¹²¹ Pak’s behavior likely even constituted terrorism under Maine law.¹²²

Again, this ignores the facts and calls into question Officer Dexter’s priorities.¹²³ The opinion does not mention a competing demand.¹²⁴ The Court seems to imagine that Officer Dexter was in a chaotic scenario where he had no choice that wouldn’t end in death and destruction, which is plainly unreasonable when considering the facts here.¹²⁵ When Officer Dexter was speaking to Pak, the parties were separated and in their own homes.¹²⁶ Pak was obviously agitated but was not threatening Officer Dexter, so Dexter himself was not in danger.¹²⁷ The only plausible reason Officer Dexter had for not acting to prevent Pak from carrying out his threats is that Officer Dexter simply did not feel like it.¹²⁸ That is not triage, that is avoidance.¹²⁹ By affirming qualified immunity for Dexter’s choices in this incident, the Court has created an incentive for other officers who are called to help people to simply walk away when a scene gets uncomfortable.

IV. The Court Should Have Addressed the Question of Whether a Constitutional Right Was Violated; Its Failure to Do So Has Both Legal and Public Policy Implications.

The Court’s Decision Weakens the Qualified Immunity Doctrine by Refusing to Determine Whether Any Constitutional Rights Were Violated

A vicious cycle is created when a court refuses to address whether a plaintiff’s constitutional rights were violated.¹³⁰ With no clear answer, officers lack notice, and then plaintiffs lack precedent to point to the next time similar facts are presented, resulting in qualified immunity for the officer and no recourse for victims.¹³¹ The qualified immunity doctrine is widely unpopular and lies on shaky ground, with members of SCOTUS criticizing and hinting at revisiting it, and Congress looking at legislating it away completely.¹³² A major criticism of qualified immunity is that because Courts are free to avoid the question of whether a plaintiff’s constitutional rights were violated, the case law for fulfilling the “clearly established” test is simply lacking, thus putting a heavier burden on plaintiffs.¹³³ Law enforcement officers have a valid interest in having clear rules to follow when making decisions on the job, so there is merit in the courts developing and expanding the jurisprudence for the benefit of all parties.¹³⁴

In Johnson, the Court relegated the decision not to address the constitutional question to a footnote, citing a case allowing discretion to decide whether it is “worthwhile” to address if a right was violated.¹³⁵ The Court never provided a reason for why it decided that an inquiry into the appellants’ constitutional rights was not worthwhile, but it should have.¹³⁶ In Pearson, SCOTUS explained why answering the constitutional question is not always appropriate.¹³⁷ When deciding the question would require undue judicial resources and litigation costs for the parties, the analysis may not be appropriate if the “clearly established” prong is an obvious no.¹³⁸ It may also be unhelpful where the analysis is so fact-bound that it would not provide useful guidance for future cases.¹³⁹ Neither of those justifications apply here.¹⁴⁰ This case was specifically remanded by the First Circuit to analyze qualified immunity, and the facts here, while awful, are not far-fetched.¹⁴¹ The cases cited by appellants, though deemed insufficient to satisfy their burden, both demonstrate scenarios like this one where officers were called to help an individual facing a private threat that was carried out after the officers moved on.¹⁴² The exact conduct of the officers in relation to the individual’s rights is precisely what is at issue; therefore, deciding the constitutional question would provide extremely helpful guidance to both law enforcement officers and plaintiffs in future cases.¹⁴³ In allowing total discretion to skip the constitutional question, SCOTUS and the First Circuit have left the public and future courts without a road map.¹⁴⁴ Such guidance is necessary because it encourages the formation of government standards and informs individuals who have suffered harm as to how to build their case.¹⁴⁵

Public Policy Demands That Victims Have Recourse to Address Harms

The Johnson case is not what one might think of in the context of qualified immunity because there is no issue of excessive force.¹⁴⁶ As discussed supra, there is a high bar to overcome in cases where police have failed to act.¹⁴⁷ This brings up the inadequacy of tort relief in negligence cases against state actors.¹⁴⁸ Even if Officer Dexter’s conduct was mere negligence, and not a violation of the appellants’ constitutional rights, many states cap recovery leaving victims like Susan Johnson woefully undercompensated for the losses they suffer.¹⁴⁹ That makes this opinion all the more incensing, because the Court did not acknowledge the suffering that the families endured and will continue to endure due to the loss of their loved ones.¹⁵⁰The Court did not even take care to identify the victims accurately, wrongfully naming Alivia Welch as Susan Johnson’s girlfriend even though Alivia was the girlfriend of Susan’s son, Derrick Thompson.¹⁵¹ After pages of background describing the horrors of December 29, 2012, the remainder of the opinion reads like the Court is practically scolding the appellants for every argument they brought against Officer Dexter because every move he made that night was “reasonable.”¹⁵²

There is precedent where Federal Courts of Appeals have provided recourse for individuals who have been grievously harmed when state actors have been careless.¹⁵³ Even in this case, the Court’s initial opinion remanding the matter appeared to hint that the plaintiffs would see relief.¹⁵⁴ The final opinion, however, reflects a lack of concern for the individuals who called for help and were left to suffer.¹⁵⁵ While the decision in this case fits into the qualified immunity jurisprudence at large, and is well-supported by precedent, it does not offer a satisfying result.¹⁵⁶

If an officer responds to a scene where someone expresses a clear intention to commit violence against another, the officer should have to inquire into the individual’s mental state, sobriety, and access to weapons before electing to leave the scene.¹⁵⁷ It is understandable that police officers have a high level of discretion in their assessment of and response to incidents in the field.¹⁵⁸ However, Officer Dexter showed an astounding unwillingness to act in a situation that demanded it.¹⁵⁹ The appellants who were shot and killed obviously suffered a heinous tragedy, but Pak was failed by Officer Dexter’s commitment to avoid paperwork as well.¹⁶⁰ Pak repeatedly expressed that he did not understand Officer Dexter’s comments about civil issues, growing increasingly agitated and hopeless.¹⁶¹ Legal language and the boundaries of criminal and civil law can be difficult even for lawyers and law students, let alone a layperson.¹⁶² When stress is high and cognitive abilities are hampered, Officer Dexter’s words would be all the more confusing.¹⁶³ In a world where Officer Dexter had chosen to ask questions instead of walking away, Pak might have gotten support and not resorted to killing.¹⁶⁴ Instead, James Pak died in prison at 86 years old.¹⁶⁵

Preventing crime benefits entire communities, not just victims.¹⁶⁶ It is important to remember the devastating toll that incarceration takes on families and communities.¹⁶⁷ It simply cannot be enough for law enforcement officers, to whom so many entrust to protect public safety, to show up and say, “keep your distance.”¹⁶⁸

Conclusion

The First Circuit appropriately remanded and reheard this case, applied precedent, cited their sources, and explained their reasoning. On the surface, Johnson reads as a valid application of the qualified immunity doctrine to a deeply unfortunate set of facts. However, when the layers are peeled back, the decision rests on shaky ground that affords all benefit to state actors and leaves individuals without recourse or even sympathy. The First Circuit failed to examine the totality of Officer Dexter’s conduct and opted to dismiss arguments where it had room to provide solutions for this family who called the police for help and still wound up the victims of a heinous murder. This opinion reflects a Court that appears content to gloss over real harm in the pursuit of conserving judicial resources and sparing law enforcement from accountability.

1
Mike Burg, To Serve and Protect?, Police Mag. (Dec. 1, 1998) https://perma.cc/25GF-SBWR. ↩︎
2
See VICE News, Do You Trust the Police? – The People SpeakYouTube (July 31, 2015), https://perma.cc/7DC2-QTZQ. ↩︎
3
SeeLegalEagle, Uvalde and Police “Duty”, YouTube (June 3, 2022), https://perma.cc/WR97-B6TF. ↩︎
4
See id. ↩︎
5
Legal Info. Inst., Qualified Immunity, Cornell L. Sch., https://perma.cc/C8LH-JGXH (last reviewed Aug. 2023). ↩︎
6
Johnson v. City of Biddeford, 92 F.4th 367, 369–374 (1st Cir. 2024). ↩︎
7
U.S. Const. amend. XIV, §1. ↩︎
8
Qualified Immunity, Equal Just. Initiative, https://perma.cc/CQU6-6KUL (last visited July 17, 2026). ↩︎
9
Id.; 42 U.S.C. § 1983. ↩︎
10
Sheldon Nahmod, Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe, 17Lewis & Clark L. Rev.1038–39 (2013); Qualified Immunity, supra note 8. ↩︎
11
Monroe v. Pape, 365 U.S. 167, 169 (1961). ↩︎
12
Id. ↩︎
13
Id.at 169–91. ↩︎
14
Pearson v. Callahan, 555 U.S. 223, 231 (2009). ↩︎
15
Id. ↩︎
16
Id. ↩︎
17
Legal Info. Inst.,supra note 5. ↩︎
18
Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L.Rev. 1797, 1814 (2018) [hereinafter Shwartz, Case]. ↩︎
19
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ↩︎
20
SeeSchwartz, Case, supra note 18, at 1814–16. ↩︎
21
Pearson v. Callahan, 555 U.S. 223, 236 (2009). ↩︎
22
See id. ↩︎
23
See Schwartz, Case, supra note 18, at 1816–18. ↩︎
24
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 202 (1989). ↩︎
25
Id.at 193. ↩︎
26
Id. ↩︎
27
Id. at 212 (Brennan, J., dissenting). ↩︎
28
Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005). ↩︎
29
489 U.S. at 201. ↩︎
30
Irish v. Fowler, 979 F.3d 65, 73 (1st Cir. 2020). ↩︎
31
Hannah Behar, The State-Created Danger Doctrine, Emory L. Sch. Sup. Ct. Advoc. Program: Sunday Splits (Nov. 26, 2023), https://perma.cc/EB8Y-QNX6. ↩︎
32
402 F.3d at 35. ↩︎
33
Id.at 36. ↩︎
34
Johnson v. City of Biddeford, 92 F.4th 367, 369–70 (1st Cir. 2024). ↩︎
35
Johnson v. City of Biddeford, 454 F. Supp. 3d 75, 80 (D. Me. 2020); Contra Johnson, 92 F.4th at 369 (listing Welch as Johnson’s girlfriend). ↩︎
36
Johnson, 92 F.4th at 369. ↩︎
37
Id. ↩︎
38
Id. ↩︎
39
Id. ↩︎
40
Id. ↩︎
41
Johnson, 92 F.4th at 369–70. ↩︎
42
Id.at 370. ↩︎
43
Id. ↩︎
44
Id. ↩︎
45
Id.at 370–71. ↩︎
46
Id.at 371. ↩︎
47
Johnson, 92 F.4th at 371. ↩︎
48
Id. ↩︎
49
Id. ↩︎
50
Id. ↩︎
51
Id.at 372. ↩︎
52
Id. ↩︎
53
Johnson, 92 F.4th at 372. ↩︎
54
Id. ↩︎
55
Id.at 372–73. ↩︎
56
Id.at 373. ↩︎
57
Id. ↩︎
58
Id. ↩︎
59
Johnson, 92 F.4th at 374. ↩︎
60
Id. ↩︎
61
Id.; 42 U.S.C. § 1983; Me. Rev. Stat. Ann. tit. 5, § 4682(1-A) (West 2023). ↩︎
62
Johnson, 92 F.4th at 374. ↩︎
63
Welch v. City of Biddeford Police Dep’t, 12 F.4th 70, 76 (1st Cir. 2021). ↩︎
64
Id. (referencing Irish v. Fowler, 979 F.3d 65, 75–77 (1st Cir. 2020)). ↩︎
65
Johnson v. City of Biddeford, 454 F. Supp. 3d 75, 91 (D. Me. 2020) (emphasis added). ↩︎
66
979 F.3d at 75. ↩︎
67
Welch, 12 F.4th at 76 (“Irish II recognized that, ‘[w]here officials have the opportunity to make unhurried judgments, deliberate indifference may shock the conscience, particularly where the state official performs multiple acts of indifference to a rising risk of acute and severe danger.’”) ↩︎
68
Id.(quoting 979 F.3d at 77). ↩︎
69
Johnson v. City of Biddeford, 92 F.4th 367, 374 (1st Cir. 2024). ↩︎
70
Id. ↩︎
71
Id. ↩︎
72
Id. ↩︎
73
Id.at 375 n.6. ↩︎
74
Id.at 375. ↩︎
75
Johnson, 92 F.4th at 375 (quoting Est. of Rahim v. Doe, 51 F.4th 402, 410 (1st Cir. 2022)). ↩︎
76
Id.at 376 (quoting Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014)). ↩︎
77
Id. ↩︎
78
Id. (citing Irish v. Fowler, 979 F.3d 65, 75 (1st Cir. 2020)). ↩︎
79
Id. ↩︎
80
Id. ↩︎
81
Johnson, 92 F.4th at 376. ↩︎
82
Id.at 378. ↩︎
83
Id.at 379. ↩︎
84
Id. See generally Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006); Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998). ↩︎
85
439 F.3d at 1057–58. ↩︎
86
Id.at 1057. ↩︎
87
Id.at 1058. ↩︎
88
Id. ↩︎
89
165 F.3d at 513. ↩︎
90
Id.at 514. ↩︎
91
Id.at 515. ↩︎
92
Id. at 518; Kennedy, 439 F.3d at 1063. ↩︎
93
Johnson v. City of Biddeford, 92 F.4th 367, 379–80 (1st Cir. 2024). ↩︎
94
Id.at 380–81. ↩︎
95
Id. ↩︎
96
Rivera v. Rhode Island, 402 F.3d 27, 35–36 (1st Cir. 2005) ↩︎
97
Irish v. Fowler, 979 F.3d 65, 74 (1st Cir. 2020). ↩︎
98
Id. (quoting Coyne v. Cronin, 386 F.3d 280, 288 (1st Cir. 2004)). ↩︎
99
92 F.4th at 377–78. ↩︎
100
Id.at 377. ↩︎
101
Id. ↩︎
102
See id.at 371. ↩︎
103
Id.at 371–72. ↩︎
104
Id. ↩︎
105
SeeKen Wallentine, Court Considers State-Created Danger Exception in Deadly Landlord-Tenant Dispute, Lexipol (Sept. 28, 2021), https://perma.cc/ZY7A-TR9Z. ↩︎
106
Johnson v. City of Biddeford, 92 F.4th 367, 378 (1st Cir. 2024). ↩︎
107
Id.(emphasis added). ↩︎
108
Misstatement, Merriam-Webster, https://perma.cc/Z7EH-YH8Y (last visited July 17, 2026); Legal Info. Inst.,Misrepresentation, Cornell L. Sch., https://perma.cc/KT3U-BTQT (last updated Oct. 2025). ↩︎
109
Johnson, 92 F.4th at 378. ↩︎
110
Id. ↩︎
111
Wallentine, supra note 107 (“The takeaway for officers reading about this tragic situation: while doing nothing can be an important de-escalation tactic, officers must also carefully consider whether their actions or omissions will put the complaining party in a worse situation than before.”). ↩︎
112
Johnson, 92 F.4th at 378. ↩︎
113
Id. ↩︎
114
Id. (quoting Meléndez-García v. Sánchez, 629 F.3d 25, 37 (1st Cir. 2010)). ↩︎
115
629 F.3d at 30–31. ↩︎
116
See generally Johnson, 92 F.4th at 378. ↩︎
117
Johnson v. City of Biddeford, 454 F. Supp. 3d 75, 87 (D. Me. 2020) (quoting Biddeford Police Department Standard Operating Procedure 02-01). ↩︎
118
See Johnson, 92 F.4th at 370–72. ↩︎
119
↩︎
119
See generally id.

Throughout Officer Dexter’s interactions with the Paks and Johnson’s family, he repeatedly stated that the issue between the parties was civil, for which he could not do anything. ¹¹⁹Id. at 370–73. ↩︎
120
Id. at 369. ↩︎
121
Me. Rev. Stat. Ann. tit. 17-A, §209 (West 2025);Me. Rev. Stat. Ann. tit. 17-A, §506-A (West 2022). ↩︎
122
Me. Rev. Stat. Ann. tit. 17-A, § 210 (West 2024); Johnson v. City of Biddeford, 454 F. Supp. 3d 75, 88 (D. Me. 2020) (“Johnson and Welch assert that Officer Dexter violated this policy when he spoke with Pak but failed to act after Pak threatened to shoot the victims and leave a ‘bloody mess’ in violation of Maine’s criminal threatening and terrorizing statutes, 17-A M.R.S.A. §§ 209-210.”). ↩︎
123
See generally Johnson, 92 F.4th at 369–73. ↩︎
124
See id. ↩︎
125
See id.at 376, 378. ↩︎
126
Id. at 370. ↩︎
127
See id.at 371–72. ↩︎
128
See supra text accompanying note 119 (quoting Biddeford Police Department Standard Operating Procedure 02-01). ↩︎
129
Cf. Kyle McCoy, Casualty Control at Mass Shooting Incidents, Police1 (Sept. 15, 2025), https://perma.cc/5J2R-F5GZ (explaining the triage process and instructing officers how to act). ↩︎
130
See Eric T. Berkman, Qualified Immunity Shields Police from Wrongful Death Claim, Mass. Lawyers Wkly. (Feb. 22, 2024), https://perma.cc/SN7A-UC7U. ↩︎
131
See id. ↩︎
132
Joanna C. Schwartz,After Qualified Immunity, 120 Colum. L. Rev. 309, 311–312 (2020); Emily Elkins, Poll: 63% of Americans Favor Eliminating Qualified Immunity for Police, CATO Inst. (July 16, 2020), https://perma.cc/338N-QE2F; Nick Sibilla, Supreme Court Refuses to Hear Challenges to Qualified Immunity, Only Clarence Thomas Dissents, Forbes (June 15, 2020, 1:30 PM EDT), https://perma.cc/4GBF-QKKD. ↩︎
133
Andréa Vieira et al.,Tackling the Qualified Immunity Problem with State Law, 22 Nev. L. J. 1029, 1046–47 (2022). ↩︎
134
Id. at 1046 (stating that “[e]mpirical studies have found that the Saucier regime resulted in richer development of constitutional rights jurisprudence”); see, e.g., Arizona v. Gant, 556 U.S. 332, 344 (2009); Missouri v. McNeely, 569 U.S. 141, 158 (2013). ↩︎
135
Johnson v. City of Biddeford, 92 F.4th 367, 375 n.6 (1st Cir. 2024) (quoting Maldonado v. Fontanes, 568 F.3d 263, 270 (1st Cir. 2009)). ↩︎
136
See Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 60 (2015) (arguing that SCOTUS should impose a requirement that lower courts provide reasoning when exercising Pearson discretion). ↩︎
137
Pearson v. Callahan, 555 U.S. 223, 234 (2009). ↩︎
138
Id.at 236–37. ↩︎
139
Id.at 237. ↩︎
140
See Johnson v. City of Biddeford, 92 F.4th 367 (1st Cir. 2024). ↩︎
141
See id. at 369–73. ↩︎
142
See Kennedy v. Ridgefield City, 439 F.3d 1055, 1057–58 (9th Cir. 2006); Monfils v. Taylor, 165 F.3d 511, 513 (7th Cir. 1998). ↩︎
143
See Berkman, supra note 133. ↩︎
144
SeeNielson & Walker, supra note 139, at 56–60. ↩︎
145
Nielson & Walker, supra note 139, at 60. ↩︎
146
See John Guzman, Debunking Myths About Qualified Immunity and Examining Its Dangerous Realities, NAACP Legal Def. Fund (Jan. 19, 2023), https://perma.cc/K4SC-72JP (stating qualified immunity “creates protections for government officials who have a long history of inflicting violence and abuse on Black and Brown communities”). ↩︎
147
Supra text accompanying notes 76–78. ↩︎
148
Berkman, supra note 133. ↩︎
149
See, e.g., Mass. Gen. Laws Ann. ch. 258, § 2 (West 2009) (capping damages at $100,000 in Massachusetts); Me. Rev. Stat. Ann. tit. 14, § 8105 (West 2012) (Capping damages at $400,000 in Maine); N.C. Gen. Stat. Ann. § 143-299.2 (West 2007) (capping damages at $1,000,000 in North Carolina). ↩︎
150
See The Associated Press, Mother Recounts Night Her Son, His Girlfriend Were Splain, Foster’s Daily Democrat (Feb. 22, 2016, 3:24 PM ET), https://perma.cc/P9VE-MUV7 (writing about Susan Johnson, “[s]he says there’s not a day that goes by that something doesn’t make her cry while thinking about her son”). ↩︎
151
Johnson v. City of Biddeford, 92 F.4th 367, 369 (1st Cir. 2024). ↩︎
152
See id.at 381. ↩︎
153
E.g., Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 419–20 (2d Cir. 2009) (reversing summary judgment where officer’s conduct implicitly encouraged individual’s violent behavior); Wood v. Ostrander, 879 F.2d 583, 586 (9th Cir. 1989) (reversing summary judgment where trooper left defendant stranded after a traffic stop and she was later assaulted); Crosetto v. Gillen, 702 F.3d 1182, 1184–86 (10th Cir. 2012) (reversing summary judgment where state social worker refused to even see evidence of child being abused and child was later murdered). ↩︎
154
Welch v. City of Biddeford Police Dep’t, 12 F.4th 70, 78 (1st Cir. 2021) (Kayatta, J., dissenting) (“A layperson reading the facts of this case as portrayed in the majority opinion could easily conclude that as a matter of good police practice, Officer Dexter should have arrested Pak for criminal threatening.”). ↩︎
155
See Johnson, 92 F.4th at 376. ↩︎
156
See id. ↩︎
157
See Police Function, Am. Bar Ass’n, https://perma.cc/8Z5H-2HUN (last visited July 20, 2026). ↩︎
158
What is Discretion in Criminal Justice?, LegalScoops (Apr. 13, 2022), https://perma.cc/44QR-DEY6 (explaining that discretion allows police to “take actions according to the dictates of their common sense and conscience”). ↩︎
159
See Johnson, 92 F.4th at 378. ↩︎
160
See Newly Released 911 Transcripts Indicate Biddeford Man Accused in Double Murder Case Was Suicidal, Bangor Daily News (Nov. 20, 2013), https://perma.cc/Q4QB-4A8Y (describing Pak’s suicidal statements made immediately after the shootings and quoting Pak’s attorney regarding the difficulty of being in jail for someone “of his age and fragile state of mind”). ↩︎
161
Johnson, 92 F.4th at 372(“Pak said, ‘You’re gonna see the newspaper. I ain’t got nothing to lose. Parking like that, renting apartment house. They’re gonna hear of that tomorrow.’ Pak said to Armit, ‘I’m not going to tell you in front of Officer . . . Dexter.’ Officer Dexter responded, ‘Don’t.’ Pak told Officer Dexter that he had had ‘enough’ and that the tenants ‘own [him],’ and Dexter responded, ‘No, they don’t.’”). ↩︎
162
Jesse Greenspan, Even Lawyers Don’t Understand Legalese, New Study Shows, Sci. Am.(July 10, 2023), https://perma.cc/2UDM-MNS4. ↩︎
163
See CERC: Psychology of a Crisis, CDC, https://perma.cc/C3FF-GUBM (last updated 2019). ↩︎
164
See Johnson, 92 F.4th at 378 (contending that Officer Dexter’s failure to ask questions about Pak’s mental state “may have been a serious misjudgment”). ↩︎
165
Penelope Overton, James Pak, Biddeford Landlord Convicted of Killing 2 Teenage Tenants, Dies in Prison, Portland Press Herald (May 25, 2024), https://perma.cc/N3XV-9C69. ↩︎
166
See Just. in Pub. Safety Project, Framework for Public Safety, NAACP Legal Def. Fund, https://perma.cc/YB87-9LZ3 (last visited July 20, 2026) (“In many cases, survivors and the accused belong to the same community. Restorative justice centers the specific needs of people who experience harm or violence with an eye towards healing the harmed individuals along with the community that was likewise impacted by the harm or violence. The effort to repair harm builds stronger relationships between individuals, which fortifies their community so it can better address the root causes of threats to public safety.”). ↩︎
167
See Emily Widra, Ten Statistics About the Scale and Impact of Mass Incarceration in the U.S., Prison Pol’y Initiative (Oct. 24, 2023), https://perma.cc/S376-VNBE. ↩︎
168
Johnson, 92 F.4th at 372. ↩︎