United States Court of Appeals
For the First Circuit
No. 20-1208
BRITTANY IRISH, individually and as Personal Representative of
the Estate of Kyle Hewitt; KIMBERLY IRISH,
Plaintiffs, Appellants,
v.
DETECTIVE JASON FOWLER; DETECTIVE MICAH PERKINS; SERGEANT DARRIN
CRANE,
Defendants, Appellees,
and
STATE OF MAINE; STATE POLICE OF THE STATE OF MAINE; JOHN DARCY;
ANDREW LEVESQUE,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Lynch, Selya, and Barron,
Circuit Judges.

Scott J. Lynch, with whom Lynch & Van Dyke, P.A. was on brief,
for appellants.
Christopher C. Taub, Assistant Attorney General, with whom
Aaron M. Frey, Attorney General, was on brief, for appellees.

  

November 5, 2020

 

LYNCH, Circuit Judge.

In this opinion, we hold on these

facts that a viable substantive due process state-created danger
claim has been presented against two Maine State Police ("MSP")
officers, and that it was error to grant the officers qualified
immunity.

Under the state-created danger substantive due process

doctrine, officers may be held liable for failing to protect
plaintiffs from danger created or enhanced by their affirmative
acts.

In doing so, we for the first time join nine other circuits

in holding such a theory of substantive due process liability is
viable.
This § 1983 action arises out of the attacks, murder,
and rapes committed in July 2015 by Anthony Lord against appellants
Brittany Irish ("Irish") and those close to her.

After actions

and inactions by the defendant officers, Lord murdered Irish's
boyfriend Kyle Hewitt, shot Irish's mother Kimberly Irish, and
then kidnapped Brittany Irish for about nine hours and raped her.
The suit asserts that Lord's rampage was triggered by a
voicemail left on Lord's cellphone by defendant MSP Detectives
Micah Perkins and Jason Fowler, the officers investigating Irish's
criminal complaint that Lord had abducted, threatened, and raped
her two days earlier.

Before the detectives checked Lord's

criminal

any

record

or

made

effort

to

find

Lord

in

person,

Detective Perkins left a voicemail identifying himself as a state
police officer and asking Lord to call him back.

- 3 -

 The plaintiffs seek relief based on the state-created
danger doctrine.

The plaintiffs argue that the detectives created

and enhanced the danger to them and then failed to protect them in
the face of Lord's escalating threats.
This court had earlier vacated the dismissal of these
claims for failure to state a claim.

Irish v. Maine, 849 F.3d

521, 523 (1st Cir. 2017) ("Irish I").

After remand and the

completion of extensive pretrial discovery, the defendants moved
for summary judgment and the district court held that a jury could
find

that

the

defendant

constitutional rights.
(D. Me. 2020).

officers

violated

the

plaintiffs'

Irish v. Fowler, 436 F. Supp. 3d 362, 364

It granted summary judgment to the officers on the

grounds of qualified immunity.

Id. We describe the district

court's rulings later.
We affirm the district court's holding that a jury could
find that the officers violated the plaintiffs' substantive due
process rights.

We reverse the grant of defendants' summary

judgment motion on qualified immunity grounds.
I. Statement of Facts
On defendants' motion for summary judgment, we read the
facts in the light most favorable to the plaintiff.

Stamps v.

Town of Framingham, 813 F.3d 27, 30 (1st Cir. 2016).
We supplement our description of the facts in Irish I
with the district court's comprehensive statement of the facts.

- 4 -

 The Events Underlying Plaintiffs' Claims
At approximately 11:13 AM on July 15, 2015, Britany Irish
reported to the Bangor Police Department that Anthony Lord, a
former lover, had kidnapped and raped her repeatedly on the night
of July 14, including at two vacant camps near Benedicta, Maine.
The Bangor Police Department referred her to the MSP. MSP Sergeant
Darrin Crane assigned Detectives Perkins and Fowler to the case
and told the detectives that Lord was a registered sex offender.
Around 2:00 PM, Sergeant Crane forwarded the detectives a copy of
Brittany Irish's statement to the Bangor Police Department.

The

statement said that Lord had threated to "cut her from ear to ear."
Brittany Irish met with the detectives at 3:05 PM and
again at 4:34 PM. At the 3:05 meeting, she told the detectives
that she was "scared that Anthony Lord would become terribly
violent if he knew [Irish] went to the police."

The detectives

told

threats,

Irish

that

because

of

Lord's

repeated

they

"recommended not letting [Lord] know . . . reports had been made
[to the police]." Indeed, they instructed her to "continue talking
to [Lord] as if nothing happened" until the detectives could get
Lord's statement. Irish also told the detectives that she had moved
her children to Hewitt's mother's house in Caribou, Maine, for
their

safety.

That

evening,

the

detectives

found

evidence

corroborating Irish's allegations against Lord at one of the vacant
camps near Benedicta.

- 5 -

 On July 16, Irish made a second written statement to the
detectives which said that Lord had threated to "cut [her] from
ear to ear," to abduct Irish's children, to abduct and "torture"
Hewitt to find out "the truth" about what was happening between
Irish and Hewitt, to kill Hewitt if Hewitt was romantically
involved with Irish, and to weigh down and throw Irish into a lake.
Despite these repeated death and other threats and their
knowledge that Lord was a registered sex offender, the defendants
did not, as was customary, check the sex offender registry to find
Lord's address or run a criminal background check. Such searches
would have revealed that he was on probation and had an extensive
record of sexual and domestic violence.
contact

Lord's

probation

officer

at

The detectives did not

this

time

or

request

a

probation hold, which could have been used to detain Lord and is
simpler to obtain than an arrest warrant.
Her
interviewed

written

Irish

again

statement
on

July

in
16.

hand,

the

Despite

detectives

their

earlier

statement to her, they told her that they planned to call Lord to
get his statement. At 6:17 PM on July 16, Detective Perkins called
Lord while Detective Fowler listened.1
Detective Perkins did not hang up.
for Lord on his cellphone.

When Lord did not answer,

Rather, he left a voicemail

In that voicemail, Detective Perkins

1

At no point has the defense tried to distinguish between
the two officers as to plaintiffs' claims.

- 6 -

 identified himself as a state police detective and asked Lord to
return his call.
with him.

Detective Perkins did not ask Lord to come meet

At that point, the defendants had made no effort to

locate Lord, much less to apprehend him.

Detective Perkins

admitted that, if Lord had committed the original assault against
Irish, it would be "logical" that Lord would determine that the
phone call was related to the rape and kidnapping of Brittany
Irish.
At 8:05 PM on July 16 -- about an hour and forty-five
minutes after he had left the voicemail -- Detective Perkins
received notice of a "possible suspicious" fire in Benedicta, the
town where the detectives had found evidence that Lord had raped
Irish at a vacant camp.

Believing that Lord may have set the fire,

the detectives drove to the site of the fire.

At 9:24 PM, Brittany

Irish called the detectives and told them it was her parents' barn,
roughly fifteen feet from their home, which was on fire.

Irish

also told the detectives that someone had heard Lord say as he
left his uncle's house (in Crystal, Maine) earlier that evening
that "I am going to kill a fucker."

Irish told the detectives

that she was afraid for her children's safety, planned to stay at
her mother's home in Benedicta, and would meet the detectives
there.
The detectives first began the search for Lord at 10:05
PM, almost four hours after leaving the voicemail.

- 7 -

They arranged

 a state-wide teletype for a "stop and hold" of Lord.

Detective

Perkins added a "use caution" warning to the teletype, which warned
officers that Lord could be dangerous and to take precautions.
Sergeant Crane joined the search at about 10:00 PM.
Around 10:35 PM, Sergeant Crane sent two MSP troopers to Lord's
mother's house in Houlton, Maine, which is about forty miles from
Benedicta.

Those officers did not call Lord's mother's house but

chose to drive there. There is no evidence that these officers
ever left Houlton or came to Benedicta to help look for Lord.
The defendant detectives arrived at the scene of the
barn fire around 10:36 PM.

Detective Perkins requested a K-9 unit

to be dispatched to the scene.
Shortly thereafter, Irish received a phone call from her
brother, who told her that Lord, upon receiving the voicemail, was
irate

and

said

that

"someone's

gonna

die

tonight."

Irish

immediately told the detectives about this death threat and asked
for protection.

The officers left the scene and no officer

remained to protect her and the others.
At 11:38 PM, the detectives finally requested a criminal
background check and learned Lord's criminal record.
At

11:49

PM,

the

detectives

first

contacted

Lord's

probation officer, who attempted to reach Lord and told the
detectives that Lord's last known residence was at his uncle's
property in Crystal, Maine.

- 8 -

 Around

midnight,

Brittany

Irish

contacted

Detective

Perkins and asked again for an officer to come to her mother's
residence.

Detective Perkins understood that she wished for an

officer to protect her and her family in the event that Lord
returned to her mother's house.

Detective Perkins did not relay

the request to his superior at this time, and no officers were
sent there.
Instead, at 12:30 AM on July 17, four officers, including
Crane, Fowler, and Perkins, went to Lord's uncle's house in
Crystal, Maine, about twenty miles from Benedicta, to look for
Lord.

They did so despite having been told that Lord had left his

uncle's house earlier that evening and their suspicions Lord had
set the fire in Benedicta.

No explanation was given for why they

did not call the uncle to see if Lord was there.
At about 1:00 AM, Crane, Fowler, and Perkins met in a
parking lot in Crystal, where Detective Perkins finally told
Sergeant Crane about Irish's request for protection.

Sergeant

Crane told the detectives he would not provide protection to the
plaintiffs

because

they

did

not

have

"the

manpower."

The

detectives did not tell Irish about this decision until an hour
later. They had three hours earlier, however, alerted all officers
to the fact that Lord was considered dangerous.

At about the same

time as this parking lot meeting, Detective Perkins requested that
the Bangor Police Department send an officer to Acadia Hospital in

- 9 -

 Bangor to look for Lord. The request was not that the officer
simply call the hospital to find out if Lord was there.

There is

no evidence as to whether the state police could have requested
the Bangor police to provide protection to Irish.
Around 2:00 AM, not having received any response to her
request for protection, Irish again called Detective Perkins.
Detective Perkins, for the first time, told her that his supervisor
had denied the request an hour earlier.

He said the police would

continue looking for Lord.
Also around 2:00 AM,

Detectives Perkins and Fowler met

Detective Jonah O’Rourke and Detective Trooper Corey Hafford at a
gas station in Sherman, Maine, about ten miles from the Irish home,
to search the dumpster for evidence of the original rape.

Not one

of these four officers was sent to protect Irish at her mother's
home.
Around

2:30

AM,

Sergeant

Crane

went

home.

An

investigator from the fire marshal's office remained near the scene
of the fire until approximately 2:30 or 3:00 AM.

The officers who

were searching near the Sherman gas station left the area around
3:00 AM.

Also around 3:00 AM, the detectives left the area.
Sergeant Crane admitted that he did not believe there

were any state police resources in the area between 3:00 and
AM.

4:00

No one told the plaintiffs that the detectives, let alone all

police units, had left the area.

- 10 -

 Around 3:00 or 4:00 AM, Kimberly Irish, Brittany Irish's
mother, contacted the MSP through their "800 number." She said
that she would like to come with Brittany and Hewitt in her car to
the MSP parking lot to remain there overnight for protection.

An

unidentified MSP employee advised her not to come to the station,
that leaving her house "would be a dangerous mistake," and that
the MSP had "officers in the vicinity" who could respond quickly
to

any

problems

that

arose.

A

jury

could

find

that

these

statements were not true, and that each piece of that advice was
relied on by the plaintiffs and increased the risk to them.
Kimberly Irish never saw any police presence near her residence,
despite keeping watch through the night.
Between 4:00 and 4:40 AM on July 17, Kary Mayo, a
resident of Silver Ridge, Maine, reported that someone had attacked
him with a hammer and stolen his truck and guns just six miles
(and twelve minutes) from the Irish home.
out of Houlton.

An officer responded

The state police did not notify the plaintiffs of

that nearby attack (which was committed by Lord).
Within about an hour, Lord drove Mayo's truck to the
Irish home.

Lord fired one round with Mayo's shotgun at the front

door to break the lock, which hit Brittany Irish in the arm.

The

door remained locked, so Lord kicked down the door. Lord entered
the house, saw Hewitt on the couch, and shot Hewitt nine times
while Brittany Irish watched.

Brittany ran from the room and into

- 11 -

 the bathroom to hide.

Kimberly Irish had already been in the

bathroom brushing her teeth.
lock the door.

They unsuccessfully attempted to

With the help of her mother, Brittany Irish had

climbed partway through the bathroom window to escape when Lord
came through the bathroom door. Kimberly Irish pushed Brittany the
rest of the way through the bathroom window, and Brittany started
running. Lord fired twice as Brittany was escaping and struck
Kimberly in the arm.
Moments later, Brittany Irish was able to jump into the
truck of Carleton Eddy, a passing motorist.

Lord saw her get into

the truck and managed to jump into the bed of the truck as Eddy
began to pull away.

From the bed of the truck, Lord shot Eddy

three times in the neck and then pulled Brittany out of the truck
and took her back to the pickup truck he had stolen from Mayo.
They drove away. The police did not free Irish or apprehend Lord
until around 2:00 PM on July 17, about nine hours after the
shooting.2

2

The police first found Lord and Irish at 5:41 AM, but
Lord escaped by repeatedly shooting at the pursuing officers,
threatening to kill Brittany if the police did not back off, and
driving onto an "impassable" road.
Around 6:20 AM, Lord and Irish arrived at a woodlot in
Lee, Maine. Lord and Irish encountered Kevin Tozier and Clayton
McCarthy, and Lord asked them if he could borrow one of their
cellphones. One of the men lent his cellphone to Lord. Tozier
noticed Irish's wound and asked about it. Lord responded by fatally
shooting Tozier in the chest several times. As McCarthy ran away,
Lord shot him too.

- 12 -

 Only after Lord's capture did the MSP post an officer at
the Irish home. They did so for two days to protect the crime
scene.
Evidence as to Proper Police Practices
There is evidence that the detectives failed to follow
proper MSP procedure and state law in several respects.
The parties agree that the optimal time to contact an
offender is at the end of an investigation, once all the facts are
in order.

Specifically as to sexual assault charges, the Director

of Training for the Maine Criminal Justice Academy, which trains
MSP officers, testified that the reasonableness of an officer's
response to a report of sexual assault depends on the severity of
the underlying assault, whether the suspect has made threats
against the victim, whether the suspect has been convicted of a
felony, and whether the suspect has a violent history.
The plaintiffs' expert, D.P. Van Blaricom, explained
that there is a standard of care "that the first priority is the
victim's safety and you would do nothing that would put her safety
at risk."

He concluded that the defendants violated this standard

Lord then stole a pulp truck, abandoned it in Haynesville,
Maine, stole an ATV, and travelled with Irish to Weston, Maine.
In Weston, he stole a Ford F-150 truck and drove to Houlton. At
some point during this flight, Lord raped Irish again. The police
finally apprehended Lord around 2:00 PM when his uncle reported
that Lord was in Houlton.

- 13 -

 of care in their investigation. In his expert report, Van Blaricom
stated that "[a]fter a report of kidnapping and sexual assault,
the first priority is to locate the suspect and take him into
custody."

He testified that "if you're trying to safeguard the

victim, you don't tip off the suspect when she's already said he'd
threaten her," and

"contacting the suspect and leaving a phone

message is the last thing I would consider doing." Instead, "[t]he
suspect is typically the last to be interviewed," and "[w]anting
to 'hear his side of the story' at the outset is fundamentally
dysfunctional and a poor investigative practice."
opinion,

the

first

police

contact

with

In his expert

Lord,

given

the

circumstances, should have been an arrest.
Van Blaricom also testified that "[t]he first thing you
do when you've got a suspect is run a criminal history" because it
is "absolutely fundamental . . . to know as much as you can about
your suspect."

The defendants admit that a criminal background

check is "fundamental" and is the first thing officers should do
when they have identified a suspect.

The officers here did not

perform a background check until after the barn fire. This was
long after leaving a voicemail message asking Lord to contact the
detectives.
Officers of the MSP, including the defendant detectives,
are trained on the proper response to domestic violence complaints
as set forth in Maine statute, Me. Stat. tit. 19-A § 4012, and

- 14 -

 MSP's "DV Policy M-4" ("M-4").

M-4 instructs that an officer "is

to try to determine" whether the suspect has a history of domestic
violence.

Maine law and Section E of M-4 both state that an

"officer shall immediately use all reasonable means to prevent
further abuse." Me. Stat. tit. 19-A, § 4012(6).

This includes

"[r]emaining on the scene [of a domestic violence incident for] as
long as the officer reasonably believes there is a danger to the
physical safety of that person without the presence of a law
enforcement

officer."

circumstances

in

Id.

which

it

§

4012(6)(A).

is

necessary

M-4

adds

for

a

that

DV

"[i]n

victim

to

temporarily or permanently leave a location where he or she has
been living, [an officer shall] assist[] the DV victim in locating
lodging with family, friends, in public accommodations, or at a DV
shelter/safe home."
II. District Court Opinion
The district court concluded that the plaintiffs had
presented triable issues of fact as to whether Detectives Fowler
and Perkins had violated the plaintiffs' substantive due process
rights

under

a

state-created

danger

theory

and

detectives' actions "shock[ed] the conscience."3

whether

the

Irish, 436 F.

Supp. 3d at 423-24, 428.

3

The district court also entered summary judgment in
favor of Sergeant Darrin Crane, and plaintiffs do not appeal that
portion of the district court order.

- 15 -

 The

district

court

began

by

acknowledging

that

the

plaintiffs have suffered constitutional deprivations of life and
liberty.

Id. at 414.

In its grant of summary judgment on the

ground of qualified immunity, the court used the Third Circuit
state-created danger test laid out in Sanford v. Stiles, 456 F.3d
298, 304-05 (3d Cir. 2006). Irish, 436 F. Supp. 3d at 413 n.148.
The court made three essential holdings.

First, it held that the

plaintiffs had presented sufficient evidence for a jury to find
that the voicemail was an affirmative act that had enhanced the
danger to the plaintiffs.

Id. at 415-16.

Next, because the

detectives had time to make unhurried judgments, the plaintiffs
needed to show that the defendants had acted with deliberate
indifference to show conscience-shocking behavior.

Id. at 418.

Finally, the court determined that a reasonable jury could find
that leaving the voicemail was "deliberately indifferent to the
point of being conscience-shocking in light of the actions [the
detectives] took before and after leaving a voicemail for Mr.
Lord."

Id. at 419.
As to qualified immunity, the court reasoned that the

existence of the state-created danger doctrine was not clearly
settled law in the First Circuit because this court had never found
the theory applicable to the specific facts presented by the case
before it. Id. at 425. Recognizing that a consensus of persuasive
authority from other circuits was sufficient to clearly establish

- 16 -

 the doctrine, it nevertheless declined to hold that the doctrine
was clearly established. Id. at 426. That was because in its view,
the Fifth and Eleventh Circuits had rejected the state-created
danger theory, and it was "not within [the district court's]
purview to select between the majority and minority rules" or
"which among the majority formulations . . . [to] adopt."
The plaintiffs have appealed.

Id.

The defendant officers

have not appealed.
III. Contours of the State-Created Danger Doctrine
We review a district court's grant of summary judgment
de novo.

López-Santos v. Metro. Sec. Servs., 967 F.3d 7, 11 (1st

Cir. 2020).

In doing so, we read the facts in the light most

favorable to the non-moving party (here, the plaintiffs), granting
all reasonable inferences in their favor.
The

Due

Process

Clause

of

the

Id.
Fourteenth

Amendment

provides that "[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law." U.S. Const.
amend. XIV, § 1.
"a

State's

While the Supreme Court has said that in general,

failure

to

protect

an

individual

against

private

violence simply does not constitute a violation of the Due Process
Clause," DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489
U.S. 189, 197 (1989), it has also suggested that when the state
creates the danger to an individual, an affirmative duty to protect
might arise. See id. at 201 ("While the State may have been aware

- 17 -

 of the dangers that [the plaintiff] faced in the free world, it
played no part in their creation, nor did it do anything to render
him any more vulnerable to them.").
Nine other circuits have since recognized the statecreated danger doctrine.

See Okin v. Vill. of Cornwall-on-Hudson

Police Dep’t, 577 F.3d 415, 428 (2d Cir. 2009); Sanford, 456 F.3d
at 304-05; Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015); Jane
Doe v. Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 932
(6th Cir. 2020); D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793,
798 (7th Cir. 2015); Fields v. Abbott, 652 F.3d 886, 891 (8th Cir.
2011); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1066 (9th
Cir. 2006); Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1173 (10th
Cir. 2013); Butera v. District of Columbia, 235 F.3d 637, 652 (D.C.
Cir. 2001).
The
require

that

circuits
the

that

defendant

recognize

the

affirmatively

doctrine
acted

to

uniformly
create

or

exacerbate a danger to a specific individual or class of people.
See, e.g., Sanford, 456 F.3d at 304; Kennedy, 439 F.3d at 106164.

Each circuit requires that the defendant's acts be highly

culpable and go beyond mere negligence.4

4

See, e.g., Butera, 235

Most circuits require that the defendant's actions
"shock the conscience." The Ninth Circuit does not use the phrase
"shock the conscience" as it has opined that the phrase "sheds
more heat than light on the thought process courts must undertake
in cases of this kind."
Kennedy, 439 F.3d at 1064-65 (quoting
L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). That court
- 18 -

 F.3d at 651; see also Cnty. of Sacramento v. Lewis, 523 U.S. 833,
847 (1998) ("[T]he substantive component of the Due Process Clause
is violated by executive action only when it 'can properly be
characterized

as

constitutional

arbitrary,

sense.'"

or

(quoting

Heights, 503 U.S. 115, 128 (1992))).

conscience
Collins

v.

shocking,
City

of

in

a

Harker

The plaintiff also must show

a causal connection between the defendant's acts and the harm.
See, e.g., Sanford, 456 F.3d at 304-05; Fields, 652 F.3d at 891.
This circuit has repeatedly outlined the core elements
of the state-created danger doctrine as they have been articulated
in other circuits.

This court has stated that in order to be

liable under the state-created danger doctrine, the defendant must
"affirmatively act[] to increase the threat to an individual of
third-party private harm." Coyne v. Cronin, 386 F.3d 280, 287 (1st
Cir. 2004); see also Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 55
n.9 (1st Cir. 2006); Rivera v. Rhode Island, 402 F.3d 27, 37 (1st
Cir. 2005).

A government official must actually have created or

escalated the danger to the plaintiff and the plaintiff cannot
have

"voluntarily assume[d] those risks." Vélez-Díaz v. Vega-

Irizarry, 421 F.3d 71, 81 (1st Cir. 2005).

The danger cannot be

requires that the defendant act with at least deliberate
indifference to a "known or obvious danger." Id. at 1062, 106465.

- 19 -

 "to the general public," it must be "specific" in some "meaningful
sense" to the plaintiff.

Ramos-Piñero, 453 F.3d at 54.

The

official's acts must cause the plaintiff's injury.

Rivera, 402

F.3d

"shock

at

37-38.

The

defendant's

actions

must

the

conscience," and where a state actor had the "opportunity to
reflect and make reasoned and rational decisions, deliberately
indifferent behavior may suffice to 'shock the conscience.'"5 Id.
at 35-36; see also Irish I, 849 F.3d at 526.

To show deliberate

indifference, the plaintiff "must, at a bare minimum, demonstrate
that [the defendant] actually knew of a substantial risk of serious
harm . . . and disregarded that risk."
In

evaluating

whether

the

Coyne, 386 F.3d at 288.

defendant's

actions

shocked

the

conscience, we also consider whether the defendants violated state
law or proper police procedures and training.

See Irish I, 849

F.3d at 528; Marrero-Rodríguez v. Municipality of San Juan, 677
F.3d 497, 500-02 (1st Cir. 2012).
Our decision in Rivera v. Rhode Island, which predates
the defendant officers' conduct here, provided this circuit's most
comprehensive exposition of the state-created danger doctrine and
its elements. See 403 F.3d at 34-38.

5

The defendants do not argue in their brief that the
plaintiffs must show more than deliberate indifference to make
their claim.

- 20 -

 In Rivera, Charles Pona and his associates repeatedly
threatened

to

kill

fifteen-year-old

testified at Pona's murder trial.

Jennifer

Rivera

if

she

Id. at 31. She told the police

about these threats many times, and they promised to protect her.
Id. at 31-32.

An associate of Pona shot and killed Rivera the day

before she was scheduled to testify.
Iris

Rivera,

brought

a

§

1983

Id. at 32.
claim

Rivera's mother,

against

the

officers

investigating the murder under the state-created danger doctrine.
Id. at 33-35. This court reviewed the contours of the doctrine as
described above, and then held that Iris Rivera had not made out
a viable state-created danger claim against the defendant officers
because

the

acts

taken

by

defendants

were

investigation and performed appropriately.

essential

Id. at 37.

to

the

This case

presents different facts that require us to recognize the statecreated danger doctrine and conclude that a reasonable jury could
find that a claim has been validly presented on this evidence.
We now state the necessary components for the viability
of such a claim.

In order to make out a state-created danger claim

in the First Circuit, the plaintiff must establish:
(1) that a state actor or state actors affirmatively
acted to create or enhance a danger to the plaintiff;
(2) that the act or acts created or enhanced a danger
specific to the plaintiff and distinct from the danger
to the general public;

- 21 -

 (3) that the act or acts caused the plaintiff's harm;
and
(4) that the state actor's conduct, when viewed in total,
shocks the conscience.
(i) Where 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.

To show

deliberate indifference, the plaintiff must, at a
bare

minimum,

demonstrate

that

the

defendant

actually knew of a substantial risk of serious harm
and disregarded that risk.
(ii) Where state actors must act in a matter of
seconds or minutes, a higher level of culpability
is required.
We apply this test to the two issues before us.
IV. Substantive Due Process Violation
We agree with and do not restate the district court's
reasoning that a jury could find the plaintiffs' substantive due
process rights were violated.
The defendants argue, as though context does not matter,
that Rivera established that the use of basic law enforcement
investigative tools cannot ever serve as the affirmative act

- 22 -

 underlying a state-created danger claim.

Rivera established no

such thing; rather it held only that the use of law enforcement
tools in that case did not provide an adequate basis for the statecreated danger claim there. See id. at 37.

That was because

interviewing and subpoenaing Jennifer Rivera were both necessary
steps of the investigation that could not reasonably be avoided
and were performed appropriately. See id.

Here the claim is not

that the defendants should not have contacted Lord at all, but
that the manner in which the officers did so -- despite having
been

warned

about

Lord's

threats

of

violence

and

their

own

acknowledgement that contacting him would increase the risks to
Irish and her family -- was wrongful.
The defendants next argue that the officers' violations
of state law and MSP policy cannot serve as the basis of a statecreated danger claim.

That is not the plaintiffs' argument.

The

plaintiffs' argument is that these violations are, at the very
least, relevant to determining the conscience-shocking nature of
the defendants' conduct and the qualified immunity inquiry.

The

plaintiffs' position is well based on our prior opinions of which
the defendant officers had notice.

Those opinions are described

below.
The defendants also argue that no jury could find the
officers' conduct shocked the conscience.

- 23 -

We rely on the district

 court's reasoning as to why that argument fails.

See Irish, 436

F. Supp. 3d at 419-24.
V. Qualified Immunity
Government officials sued in their individual capacities
are immune from damages claims unless "(1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of
their conduct was 'clearly established at the time.'" District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). The defendants' argument turns
on the clearly established prong.
The

test

to

determine

whether

a

right

is

clearly

established asks whether the precedent is "clear enough that every
reasonable official would interpret it to establish the particular
rule the plaintiff seeks to apply" and whether "[t]he rule's
contours [were] so well defined that it is clear to a reasonable
officer

that

confronted."

his

conduct

was

unlawful

in

the

situation

he

Id. at 590 (internal quotation marks and citations

omitted).
A rule is clearly established either when it is "dictated
by 'controlling authority' or 'a robust "consensus of cases of
persuasive authority."'" Id. at 589-90 (quoting Ashcroft v. alKidd, 563 U.S. 731, 741-42 (2011)).

A "robust consensus" does not

require the express agreement of every circuit.

Rather, sister

circuit law is sufficient to clearly establish a proposition of

- 24 -

 law when it would provide notice to every reasonable officer that
his conduct was unlawful.

See Wilson v. Layne, 526 U.S. 603, 616-

18 (1999); Wesby, 138 S. Ct. at 589-90.
"[T]he salient question . . . is whether the state of
the law [at the time of the defendants' conduct] gave [them] fair
warning that their alleged treatment of [the plaintiffs] was
unconstitutional."

Hope v. Pelzer, 536 U.S. 730, 741 (2002); see

also Rainsberger v. Benner, 913 F.3d 640, 652 (7th Cir. 2019)
("[T]he relevant question is what a well-trained officer would
have thought about the lawfulness of that action." (emphasis in
original)). "[O]fficials can still be on notice that their conduct
violates established law even in novel factual circumstances."
Hope, 536 U.S. at 741; see also Taylor v. Riojas, No. 19-1261,
2020 WL 6385693, at *2 (Nov. 2, 2020) (holding that qualified
immunity should not be granted when "any reasonable officer should
have

realized

that

[the

conduct

at

issue]

offended

the

Constitution"); Safford Unified Sch. Dist. No. 1 v. Redding, 557
U.S. 364, 377–78 (2009); Brosseau v. Haugen, 543 U.S. 194, 199
(2004) ("Of course, in an obvious case, these standards can
'clearly establish' the answer, even without a body of relevant
case law."); Browder v. City of Albuquerque, 787 F.3d 1076, 1082–
83 (10th Cir. 2015) ("[T]he more obviously egregious the conduct
in

light

of

prevailing

constitutional

- 25 -

principles,

the

less

 specificity is required from prior case law to clearly establish
the violation." (citations omitted)).
The Supreme Court has established that cases involving
materially similar facts are not necessary to a finding that the
law was clearly established.
have followed that rule.

Hope, 536 U.S. at 741.

The circuits

See Suboh v. Dist. Att'y's Off. of

Suffolk Dist., 298 F.3d 81, 94 (1st Cir. 2002); Dean for & on
behalf of Harkness v. McKinney, 976 F.3d 407, 418 (4th Cir. 2020);
Cantu v. City of Dothan, 974 F.3d 1217, 1232 (11th Cir. 2020);
Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002);

Williams

v. Strickland, 917 F.3d 763, 770 (4th Cir. 2019); Browder, 787
F.3d at 1082–83.
A defendant's adherence to proper police procedure bears
on all prongs of the qualified immunity analysis.
F.3d at 527-28.6

Irish I, 849

When an officer violates the Constitution, state

law, of course, provides no refuge.

A lack of compliance with

state law or procedure does not, in and of itself, establish a
constitutional violation, but when an officer disregards police

6

Defendants' argument that the violations of proper
police procedure and state law are "not relevant to the qualified
immunity analysis" is both incorrect and troubling.
The
defendants' argument is tantamount to saying that violations of
state law and proper police procedures have no bearing on whether
a reasonable officer would know his conduct was unlawful. Such an
argument is pernicious; the driving principle behind it would
encourage government officials to short-cut proper procedure and
established protocols.

- 26 -

 procedure, it bolsters the plaintiff's argument both that an
officer's conduct "shocks the conscience" and that "a reasonable
officer in [the officer's] circumstances would have believed that
his conduct violated the Constitution." Stamps, 813 F.3d at 32 n.4
(quoting Jennings v. Jones, 499 F.3d 2, 20 (1st Cir. 2007)); see
also id.

(collecting cases); Marrero-Rodríguez, 677 F.3d at 502

(stating

that

defendant's

"violation

of

several

training

protocols" weighed in favor of plaintiffs' claim); Dean, 976 F.3d
at 416-17 (relying on officer's violation of training, department
policy, and state law to hold that a reasonable jury could conclude
that officer's conduct was conscience shocking).
The
circuit

to

defendants'

date

has

not

main

argument

recognized

is

the

that

state-created

doctrine, the law was not clearly established.
incorrect.

because

this

danger

That is simply

The Supreme Court has stated that clearly established

law can be dictated by controlling authority or a robust consensus
of persuasive authority.

Wesby, 138 S. Ct. at 589-90; see also

McCue v. City of Bangor, 838 F.3d 55, 64 (1st Cir. 2016) (stating
that the agreement of four circuits was sufficient to establish
threshold for excessive force); Maldonado v. Fontanes, 568 F.3d
263, 270-71 (1st Cir. 2009) (holding that a consensus of three
circuits was sufficient to establish that the killing of a pet was
a

seizure

widespread

within

the

acceptance

meaning
of

the

of

the

Fourth

state-created

- 27 -

Amendment).
danger

The

theory,

 described above, was sufficient to clearly establish that a state
official may incur a duty to protect a plaintiff where the official
creates or exacerbates a danger to the plaintiff.
The defendants' reliance on Soto v. Flores, 103 F.3d
1056 (1st Cir. 1997), is also misplaced.

In Soto, this court

concluded that the state-created danger doctrine was not clearly
established.

Id. at 1065.

The broad acceptance of the doctrine

"militate[d]

in

finding

favor

of

that

there

[was]

clearly

established law in this area," but two circumstances prevented the
court from holding that the law was clearly established.

Id.

First, the court noted that at the time of the defendants' conduct
in Soto, the First Circuit had never "discuss[ed] the contours of
[the state-created danger] doctrine."

Id.

Second, the court

relied on the fact that while the Third Circuit had then recently
"comprehensively described" the state-created danger theory, the
history of the doctrine was "uneven," and that only "more recent
judicial opinions . . . ha[d] begun to clarify the contours" of
the doctrine.

Id.

All of this had changed by the time Detective

Perkins left the voicemail for Anthony Lord.

By July 2015, this

court had discussed the state-created danger doctrine at least a
dozen times, even if it had never found it applicable to the facts
of a specific case.

And our sister circuits' law developed as

well in the decades since Soto.

- 28 -

 The officers argue that because the Fifth and Eleventh
Circuits have rejected the state-created danger doctrine,7 the
doctrine cannot be clearly established.
of law this is wrong.

Again, as a proposition

A circuit split does not foreclose a holding

that the law was clearly established, as long as the defendants
could not reasonably believe that we would follow the minority
approach. See Pro v. Donatucci, 81 F.3d 1283, 1292 (3d Cir. 1996).
After Rivera, the defendants could not reasonably have believed
that we would flatly refuse to apply the state-created danger
doctrine to an appropriate set of facts.
Rivera was a critical warning bell that officers could
be held liable under the state-created danger doctrine when their
affirmative acts enhanced a danger to a witness.

This court did

not simply dismiss Rivera's claim without analysis, as would have
been appropriate if the state-created danger doctrine could never
apply to any set of facts in this circuit.

Instead, Rivera

outlined the elements of the state-created danger doctrine and
performed a nuanced analysis of why each particular action of the

7

We disagree with the defendants that the Fifth and
Eleventh Circuits have rejected the state-created danger doctrine.
Though the Eleventh Circuit no longer has a discrete "state-created
danger doctrine," it also does not bar recovery in cases like this
one. See Waddell v. Hendry Cnty. Sheriff's Off., 329 F.3d 1300
1305-06 (11th Cir. 2003). And the Fifth Circuit has not explicitly
foreclosed the possibility that it might recognize the doctrine in
the future. See Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 865-66 (5th Cir. 2012) (en banc).

- 29 -

 defendants was not the type of affirmative act covered by the
doctrine.

402 F.3d at 36-38.

Rivera warned that if an officer

performed a non-essential affirmative act which enhanced a danger,
a sufficient causal connection existed between that act and the
plaintiff's

harm,

and

the

officer's

actions

shocked

the

conscience, the officer could be held liable for placing a witness
or victim in harm's way during an investigation.
Defendants also argue that they are immune from suit
because no factually similar cases alerted them that their conduct
was impermissible.

This too is incorrect.

As we have just said,

a general proposition of law may clearly establish the violative
nature of a defendant's actions, especially when the violation is
egregious. See Hope, 536 U.S. at 741; Dean, 976 F.3d at 417 ("That
there is little precedent imposing liability under these specific
circumstances does not necessarily mean that an officer lacks
notice that his conduct is unlawful.").

Not only is the argument

wrong, but its premise is wrong; there are factually similar
earlier cases.

Both were decided after Soto.

In 2006, the Ninth Circuit faced a similar case.

In

Kennedy v. City of Ridgefield, Kimberly Kennedy reported that her
thirteen-year-old neighbor, Michael Burns, had molested her nineyear-old daughter.

439 F.3d at 1057.

Kennedy told the police

that Burns was violent and that she was afraid of how Burns would
respond to the allegations.

Id. at 1057-58.

- 30 -

The police promised

 to warn Kennedy before contacting Burns.
the

investigating

officer

told

Id. at 1058.

Burns's

mother

Instead,

about

the

allegations against her son fifteen minutes before telling Kennedy
that he had contacted the Burns family.

Id.

The officer promised

to but did not provide protection that night.

Id. Early the next

morning, burns broke into Kennedy's house and shot both her and
her husband while they slept.

Id.

The Ninth Circuit held that

there was a triable issue of fact as to whether the officer had
violated Kennedy's substantive due process rights under the statecreated danger theory. Id. at 1067.

The officer had "created an

actual, particularized danger Kennedy would not otherwise have
faced."

Id. at 1063.

Going to the Burns residence prematurely

and reassuring Kennedy with false promises of increased security
were acts of deliberate indifference.

Id. at 1064-65.

The Ninth

Circuit also held that the law was clearly established.

Id. at

1066–67.
Another

factually

Seventh Circuit in 1998.

similar

case

was

decided

by

the

In Monfils v. Taylor, 165 F.3d 511 (7th

Cir. 1998), Thomas Monfils tipped off the police that his coworkers intended to steal property from their workplace.
513.

Id. at

Despite Monfils' pleas to keep the recording of his tip

secret, the police released the recording to one of his co-workers,
Keith Kutska.

Id. Monfils had warned the police that Kutska was

"known to be violent," "crazy," and "a biker type with nothing to

- 31 -

 lose" and that Monfils "was afraid that . . . [Kutska] would 'take
him out.'"

Id. at 513-14.

Kutska murdered Monfils shortly after

the police released the recording.

Id. at 515.

Relying on a Sixth

Circuit case, Kallstrom v. City of Columbus, 136 F.3d 1055 (6th
Cir. 1998), in which a city was held liable under the state-created
danger

doctrine

for

releasing

the

contact

information

of

undercover police officers, the Seventh Circuit concluded that the
defendant officer was not entitled to qualified immunity on the
state-created danger claim.

Monfils, 165 F.3d at 516, 518.

These cases gave the defendants notice that they could
be held liable for violating the Due Process Clause if, after
receiving a report of criminal activity, they effectively alerted
the suspect that he was under investigation in a manner that
notified the suspect who the reporting individual was, despite
knowing that the suspect was likely to become violent toward that
person.

Monfils, 165 F.3d at 513-18.

The officers were also on

notice that failing to take steps to mitigate the danger they had
created and misleading the victim about the level of police
protection she had could likewise give rise to a constitutional
violation under the state-created danger doctrine.

Kennedy, 493

F.3d at 1063-65.
On this record, a reasonable jury could conclude that as
much occurred here.

The plaintiffs allege that the defendants,

even in the face of Irish's expressed fear that Lord would react

- 32 -

 violently, contacted him in a manner that a reasonable jury could
find notified him that Irish had reported him to the police.

The

plaintiffs also allege that the defendants failed to convey her
request for protection to their superiors for several hours and
further failed to inform her in a timely fashion that the request
had been denied.

A jury could also conclude that the defendants

played a role in the decision to withdraw all resources from the
area without telling the plaintiffs that they had done so, thereby
allowing the plaintiffs to believe more protection was available
than was actually true.
disregard

for

police

Finally, the defendants' apparent utter

procedure

could

contribute

to

a

jury's

conclusion that the defendants conducted themselves in a manner
that was deliberately indifferent to the danger they knowingly
created, and that they thereby acted with the requisite mental
state to fall within the ambit of the many cases holding that a
violation of the Due Process Clause requires behavior that "shocks
the conscience."

See, e.g., Kennedy, 439 F.3d at 1064-65; Rivera,

402 F.3d at 37-38; Coyne, 386 F.3d at 288.

Whether the jury will

or should conclude as much is, of course, not a question for this
court, but it was clearly established in July 2015 that such
conduct on the part of law enforcement officers, if it occurred,
could give rise to a lawsuit under § 1983.

- 33 -

 VI.
For the reasons stated above, we reverse the grant of
summary judgment, affirm the district court's conclusion that a
jury

could

conclude

that

defendants

violated

plaintiffs'

substantive due process rights, and remand for further proceedings
consistent with this opinion.

Costs are award to the appellants.

- 34 -