Johnson v. City of Biddeford

92 F.4th 367

• Court: Court of Appeals for the First Circuit
• Decided: February 13, 2024
• Docket: 23-1399
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1399

SUSAN JOHNSON, individually and on behalf of her minor son B.L. and on behalf of Derrick Thompson, deceased; JOCELYNE WELCH, as personal representative of the Estate of Alivia Welch,

Plaintiffs, Appellants,

v.

CITY OF BIDDEFORD; ROGER P. BEAPURE, individually and as Chief of Biddeford Police Department; EDWARD DEXTER, individually and as an employee of the Biddeford Police Department,

Defendants, Appellees,

CITY OF BIDDEFORD POLICE DEPARTMENT; MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually and as the Commissioner of the Maine Department of Public Safety; JACOB WOLTERBEEK, individually and as an employee of the Biddeford Police Department; JANE DOES,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Montecalvo, Lynch, and Rikelman, Circuit Judges.

Kristine C. Hanley, with whom Garmey Law was on brief, for appellants. Joseph A. Padolsky, with whom Douglas I. Louison and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellees.

February 13, 2024 LYNCH, Circuit Judge. The district court, on remand

from this court's reinstating the case and vacating the judgment

earlier entered for the defendants, entered summary judgment on

different grounds for defendant police officers and City of

Biddeford, Maine. See Johnson v. City of Biddeford, 665

F. Supp. 3d 82, 89-91 (D. Me. 2023). The key issue on appeal is

whether judgment for Officer Edward Dexter was correctly entered

on grounds of qualified immunity against the appellants' claim of

violation of substantive due process rights under the

enhancement-of-danger prong of the state-created danger test as

articulated by this court in Irish v. Fowler, 979 F.3d 65, 75 (1st

Cir. 2020).

We affirm, holding a reasonable officer in Dexter's

position would not have understood, on the facts here, that he was

by his actions and inactions violating any such rights.

I.

"As the district court resolved this case at the summary

judgment stage, we rehearse the facts in the light most agreeable

to the nonmovant (here, the [appellants]), consistent with record

support." DePoutot v. Raffaelly, 424 F.3d 112, 114 (1st Cir.

2005).

Susan Johnson and Derrick Thompson, mother and son,

leased an apartment from landlords James Pak ("Pak") and Armit

- 3 - Pak, which was attached to the Paks' residence in Biddeford. On

December 29, 2012, Thompson was outside shoveling snow when Pak

came outside and began arguing with him that there were more cars

parked in the driveway than was permitted under the rental

agreement. During the argument, Pak made gun-shaped hand gestures

and said "bang." Johnson, who had videotaped a portion of the

argument on her smartphone, directed Thompson to call the police,

which Thompson did. Thompson told the dispatcher that his landlord

was "freaking out," was making death threats, and had made gestures

toward him in the shape of a gun. Thompson, Johnson, and Alivia

Welch, Johnson's girlfriend, waited inside the apartment for the

police to arrive.

Biddeford Police Officer Edward Dexter responded to the

call. Officer Dexter had a WatchGuard recording system which audio

recorded his interactions throughout the encounter with the

appellants and the Paks.1 Officer Dexter entered Thompson and

Johnson's apartment and began talking with Johnson, Thompson, and

Welch. Thompson told Officer Dexter that Pak had screamed at him

about the number of cars parked in the driveway and that Pak had

told him that he should hit Pak so that Pak could "bury [Thompson]

1The appellants submitted a transcript to the district court as an "accurate transcription" of the audio recording. The parties have noted some discrepancies between the transcript and the audio recording. Any disagreements between the parties as to particular discrepancies do not affect our holding.

- 4 - in the snow." Johnson said that whenever Thompson "comes home,

[Pak will] go outside . . . and start[] mouthing off to him . . . .

He follows him around the driveway talking to him like that."

Thompson said that Pak "[f]ollows [Thompson] around, harassing

[him]." Johnson said, "that guy has something wrong with him,"

and Thompson said, "He's nuts."

Officer Dexter viewed video footage on Johnson's phone

of Pak arguing with Thompson, grabbing his own crotch, and making

sexual comments about Thompson. In the video, Pak says, "Shut

your mouth, you piece of trash. . . . What are you -- Stealing!

Living in the apartment, you don't pay rent." Johnson responds in

the video that she did pay her rent. Johnson told Officer Dexter

that Pak had "threatened" her and Thompson. Thompson said that

Pak had "point[ed] his fingers at [Thompson] and goes, Bang. And

then points them at [Johnson] and he says, Bang." Johnson told

Officer Dexter that Johnson's other son, six-year-old B.L., was in

a back room in the apartment and that they were trying to "keep

[him] away from this."

Thompson said that he had had similar problems with Pak

before and that Pak would "wait at [Pak's] door for [Thompson]"

and "start[] yelling" when Thompson arrived. Officer Dexter said,

"He's got a beef with you," to which Thompson said, "Yeah."

Thompson said that on one occasion, Pak had started yelling at him

- 5 - when he arrived home, and Thompson "didn't want to deal with it,"

so he had "walked inside and shut the door on him." Pak had tried

following him into the house, but Thompson had "locked the dead

bolt so he couldn't come in behind [him]."

Officer Dexter then asked Thompson, "Okay. And at any

time, did you actually feel threatened?" Thompson responded, "Not

that -- well, not really I mean --" Officer Dexter asked Thompson

if he instead felt "obviously . . . more harassed," to which

Thompson said, "Yea. . . . I mean, he gets in my face and . . .

[p]retty much nudges towards me . . . ."

Officer Dexter asked Thompson what Pak's "biggest issue"

was. Thompson said, "The car in the driveway . . . ." Johnson

explained that Pak wanted there to be only "two vehicles in the

driveway," but that the tenants understood the rental agreement to

allow an additional vehicle for visitors.

Officer Dexter told Johnson, Thompson, and Welch that

their dispute was a "civil issue," but that "obviously [Pak is]

not allowed to cause harassment, threaten, et cetera." Officer

Dexter said, "[W]e can obviously speak to him and see what he has

to say." Johnson said, "His wife's not home. I think that's the

issue." Welch said that Armit Pak "always comes and apologizes to

us after he freaks out. She says, Sorry, he just gets worked up.

I don't know what to do about it."

- 6 - Johnson said that Pak had also yelled at them because

the tenants had not attended a "mandatory meeting" that morning,

which they had been given notice of the previous day. Officer

Dexter asked whether Pak was always like that. Johnson said,

"Yeah," and Welch said, "He never talks normal. It's always

yelling."

Officer Dexter told the appellants that they should stay

away from Pak for the remainder of the evening. He said, "[L]et

it snow. Don't shovel." He also said that the appellants should

video record any further confrontations, and "[d]isengage. Leave

the shovel. Come inside. Let him . . . [d]o whatever. . . . [I]f

it continues, obviously call us." Officer Dexter asked Thompson,

Johnson, and Welch if they had any questions, and they responded

that they did not. Officer Dexter then said that he would return

after speaking with the Paks.

Officer Dexter knocked on the door of the Paks'

residence, and Dexter entered the Paks' residence after Armit Pak

invited him in. Officer Dexter had a discussion with Armit, who

told him that her husband was angry with Thompson and Johnson

because they had broken their lease by, among other things, having

an additional car in the driveway. Armit said that she and Pak

had served an eviction notice on the appellants. Officer Dexter

told Armit that this was "a civil issue between you guys . . . and

- 7 - there's nothing that we can do about that." Armit said, "I know

it." Officer Dexter brought up Pak's earlier altercation with the

tenants, to which Armit responded that the issues with the tenants

were "frustrat[ing]." Officer Dexter said that he "underst[ood]

that, especially when you get a storm like this, you just want to

clean the yard." Armit responded, "Yeah."

Pak then entered the conversation. He was angry,

agitated, and incoherent at various points during his interaction

with Officer Dexter. Pak told Officer Dexter that Thompson had

given him the finger and that, in response, Pak had told Thompson,

"I have a gun, I shoot you. Bang." Officer Dexter told Pak that

he understood Pak was upset, but that even if Thompson had been

rude and disrespectful, Pak could not "threaten him that way."

Officer Dexter said, "I understand [Thompson's behavior] upsets

you. . . . And I can see that it's disrespectful to you. And I

see that. And I understand that. Okay? But you can't threaten

to physically hurt him. . . . [Y]ou can't threaten to shoot him."

Pak said, "I know. I can -- I'd like to shoot him." Officer

Dexter said, "Yes, but you can't say those things. . . . Because

if you threaten to shoot them, they're going to take you to court.

And I'm going to give you a summons to go to court for criminal

threatening. You cannot threaten them." Pak said, "I'd like to

shoot him -- I'd like to smack him." Officer Dexter responded,

- 8 - [B]ut you can't tell them that. What you need to do is turn around and come inside.

And you need to go through the civil process of getting them evicted. It's a difficult process. You have to go through the courts to get them evicted. It's going to be difficult, and you guys need to be patient. That's the downside --

Pak said, "She said, [w]e got it recorded. You say --" Armit

said to Pak, "Jim, calm down." After further discussion, Pak said,

"The lease is broken. They broke the lease." Officer Dexter

responded,

Okay. . . . I understand that it's been broken; but the problem is, you guys and them signed the lease, okay? You need to go through the court process for that.

You can't just threaten to . . . beat him up, to shoot him, or things like that.

I understand you're mad. I understand that.

Pak then raised the issue about the number of cars parked

in the driveway. He said, "He ain't got right to three. Only two

car. He have three. Now . . . you say civil. They got right to

any car they want, huh?" Officer Dexter said, "That's an agreement

between you and them. . . . [T]hey were telling me . . . that

they have two, plus if they have visitors they can park on the

side or over there. Okay?" Armit said, "They're not supposed to

have visitors every day." Officer Dexter responded, "Either way,

that's a civil agreement between you and them. . . . The bottom

- 9 - line is that you cannot threaten them, okay? If they're outside

shoveling, leave them alone. Do it through the courts."

Pak said, "I can't believe it's happening." Officer

Dexter responded, "It's frustrating. I understand that." Pak

said, "I got news though. I'm glad that you say that I don't have

any right. They got right." Officer Dexter said,

That's the downside of being a landlord in this state. The tenants in this state have so many rights. It is so frustrating for landlords. . . . Landlords have a tough time in this state, and I feel sorry for you as a landlord because of the frustration that you're experiencing. I don't have a good answer for you.

After further comments by Pak, Officer Dexter responded, "[I]f you

take their stuff and you throw it out in the snow and it gets

damaged, you're going to get charged with criminal mischief.

That's the downside." Pak said, "Now, we don't have any right,

huh?" Officer Dexter said, "You have to go through the eviction

process." Pak then said, "No, you can't even get . . . the two

car parked there -- they got three car." Officer Dexter said, "I

can't do a thing about it, because that's the agreement that you

signed, in your lease agreement . . . with them."

Officer Dexter then told the Paks, "Recommendations,

okay? What I suggest tonight is --," and Armit said, "Stay in the

house." Officer Dexter said, "Yeah. . . . [I]f you want to go

out and shovel, do it when they're not there. Okay?" Pak said,

- 10 - "What you mean, . . . I can't shovel?" Officer Dexter said, "You

can shovel. Do it while they're inside, okay? If they want to

come outside, don't say anything to them. Just ignore them. Put

the blinders on. Do your thing. Let them do their thing."

Pak said, "I ain't got nothing to lose. I came from

orphanage . . . ." Officer Dexter responded that Pak had a "lot

to lose, sir. You have this house, you have your wife, you have

your dog, you have your vehicles. . . . Just ignore them. Don't

let it get to you. Okay?" Pak told Officer Dexter, "He done

called me 'Jap.' He call me names. And I just . . . don't have

any right? . . . You're gonna see me in the newspaper." Officer

Dexter responded, "No, I don't want to see you in the news." 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."

Pak said, "Please. When you go . . . down there, . . .

[l]east you can say their car can't park in there." Officer Dexter

responded, "I can't tell them that. It's a civil issue between

you guys." Pak said, "God help you. Looks like we'll see. There's

- 11 - gonna be big name tomorrow." Officer Dexter said, "Don't -- don't

make --" Pak said, "No, you let them go free. Everything free."

Officer Dexter responded, "No. . . . Okay. I'm going to go now.

Keep your distance."

Officer Dexter asked Pak for his birth date, and Pak

told him that he was born in 1938. After further discussion

between Officer Dexter and Pak about the cars in the driveway, Pak

said, "I'm gonna go see them now." Officer Dexter replied, "Keep

your distance from them. I'm going to tell them to keep their

distance from you." Pak then said, "There gonna be bloody mess."2

Officer Dexter did not arrest, detain, or initiate a

mental health intervention for Pak, nor did he ask Pak whether he

had access to a firearm or whether Pak had been drinking alcohol.

Officer Dexter returned to Johnson and Thompson's

apartment. Officer Dexter told Johnson, Thompson, and Welch that

he had "explained to [the Paks]" that they should keep their

distance. Johnson asked whether Pak was "alone" in his residence,

and Officer Dexter answered that Pak's wife was there as well.

Officer Dexter said,

2 It is unclear in the record whether these were the final words spoken by Pak before Officer Dexter left the Paks' residence, or whether they were spoken earlier in the conversation. The appellees contend that Pak's final words before Officer Dexter left were that Dexter didn't "have to worry" after Dexter told him to keep his distance from the appellants. This factual dispute does not affect our holding.

- 12 - I explained to them that this is a civil issue. He's obviously extremely upset about the second car and whatnot. O[K]? Use caution. You're out there shoveling, he comes out, come inside. I think at this point in time trying to get him to understand what's happening and the issues of civil issue between you guys . . . is gonna be hard pressed and you guys are gonna have more than one conflict unfortunately.

When Johnson told Officer Dexter that Pak does not listen or

understand, Officer Dexter said,

there's not much I can do about it because it is a civil issue. . . . So whether you guys are going through the eviction process, . . . I can't do much about that. . . . But, I can do things about the harassment[,] et cetera[, and] the threatening.

Johnson asked Officer Dexter whether he was "going back

in there at all," to which Officer Dexter responded that he was

"done talking with [the Paks]." Johnson told Officer Dexter that

Pak sometimes peered into their windows, and Officer Dexter

responded, "Pull your shades down." Johnson said that she had

seen Pak "standing there looking in the windows before." Officer

Dexter said,

[O]bviously, you have the type of landlord that watches everything you do. Okay? That's what shades and curtains are for. . . . I wish I had a better answer for you. . . . I advised [Pak] he can't harass you, he can't threaten you. Whether it was successful or not I don't know.

Thompson said, "I'll find out soon enough," and Officer Dexter

- 13 - responded, "Well, just keep your distance."

Thompson and Johnson explained that Pak had threatened

to tow their car, to plow snow over it, and to block it in. Officer

Dexter told Johnson and Thompson that they should call the police

if the Paks caused any damage to their vehicles, because that could

constitute criminal mischief. Officer Dexter said, "We'll come in

that case; but beyond that -- okay? . . . Stay in for the night."

Johnson asked Officer Dexter, "Was [Pak] acting calm

while you were over there?"3 Officer Dexter replied that "[c]alm

is not the best word." Johnson said, "Because . . . I wonder if

he's going to be normal." Officer Dexter said, "she's there too,"

to which Johnson said, "O[K]." Officer Dexter then said, "But

they're frustrated. They're frustrated because -- they are hung

up on the two-car thing." Officer Dexter said that Armit had

"brought up the issue of . . . the meeting." Johnson replied that,

because the Paks are her landlords and not her employers, they

could not require her to attend a mandatory meeting on short

notice. Officer Dexter responded, "I can't," and Johnson said, "I

know." Officer Dexter then said goodbye and left the residence.

A few minutes later, Pak walked into Johnson and

3 There is an indication in the record that Johnson instead said, "Was his wife calm when you went over there?" However, the parties agreed that Johnson asked whether Pak was acting calm. This factual uncertainty does not impact our holding.

- 14 - Thompson's apartment with a firearm and shot Johnson, Thompson,

and Welch.4 Four minutes after Officer Dexter's departure, 9-1-1

dispatch received a call about a shooting at the apartment.

Officer Dexter responded to the call, and upon entering the

apartment found Thompson and Welch dead and Johnson seriously

injured. Officer Dexter removed Johnson's minor son, B.L., who

had not been shot, from the apartment. Johnson survived the

shooting but suffered extensive injuries. Pak was arrested that

night.

Maine State Police detectives interviewed Pak the next

day. Pak told the detectives that he felt that Officer Dexter was

"wrong" and that Dexter had told Pak that the tenants "were

protected by the constitution." He also said that Officer Dexter

had protected the appellants instead of him, and he felt he had no

rights and that Dexter had said that the tenants had more rights

than he did as a landlord. Pak later pleaded guilty to two counts

of homicide and was sentenced to life in prison.

II.

Johnson -- individually and on behalf of B.L. and

Thompson's estate -- and the representative of Welch's estate

brought suit against the defendants, including Officer Dexter,

4 The record is silent as to whether the apartment was locked or how Pak was able to enter it.

- 15 - alleging among other claims that, pursuant to 42 U.S.C. § 1983 and

the Maine Civil Rights Act (MCRA), Me. Rev. Stat. Ann. tit. 5,

§ 4682(1-A) (2001), Dexter had violated the tenants' Fourteenth

Amendment substantive due process rights in both his individual

and official capacities under the state-created danger doctrine.

In April 2020, the district court granted the defendants' motion

for summary judgment on all claims. See Johnson v. City of

Biddeford, 454 F. Supp. 3d 75, 95 (D. Me. 2020). The court held

that the appellants had not established a substantive due process

violation under the state-created danger doctrine. See id. at

91-92, 95.

The appellants appealed to the First Circuit. We

affirmed the judgment in part and vacated and remanded the grant

of summary judgment as to, among other claims, the § 1983 and MCRA

claims against Officer Dexter. See Welch v. City of Biddeford

Police Dep't, 12 F.4th 70, 78 (1st Cir. 2021). We instructed that

"[t]he district court should address on remand whether Officer

Dexter is entitled to qualified immunity and may choose to address

the second step of the qualified immunity inquiry before addressing

whether Officer Dexter violated the [appellants'] substantive due

process rights under the state-created danger doctrine." Id. at

77.

Following remand, the remaining defendants filed a

- 16 - renewed motion for summary judgment. In March 2023, the district

court granted summary judgment as to the remaining claims. See

Johnson, 665 F. Supp. 3d at 91. The court held that "although a

jury could conclude that Officer Dexter violated the tenants'

substantive due process rights under the state-created danger

doctrine, the state of the law in 2012 would not have given Officer

Dexter fair warning that his conduct was unconstitutional," and

therefore "qualified immunity protects Officer Dexter." Id. at

121.

The appellants timely appealed.

III.

A.

The appellants contend that the district court erred

when it granted the appellees' motion for summary judgment on the

§ 1983 claim against Officer Dexter and that Dexter's conduct is

not protected under qualified immunity.5 We review the court's

grant of the appellees' motion de novo. See Penate v. Sullivan,

73 F.4th 10, 17 (1st Cir. 2023). When resolving a qualified

immunity claim at the summary judgment stage, we "fram[e] the

factual events according to summary judgment's traditional leeway

to the nonmoving party's version of events, and then ask[] whether,

5 The appellants do not contest in their briefs the district court's rulings on their other remaining claims.

- 17 - given that story, 'a reasonable officer should have known that his

actions were unlawful.'" Justiniano v. Walker, 986 F.3d 11, 27

(1st Cir. 2021) (quoting Morelli v. Webster, 552 F.3d 12, 19 (1st

Cir. 2009)). "The mere fact that the parties espouse differing

versions of the truth does not preclude summary judgment on the

basis of qualified immunity. What counts is whether the undisputed

facts, together with the nonmoving party's version of any disputed

facts, suffice[] to remove the shield of qualified immunity."

Moses v. Mele, 711 F.3d 213, 216 (1st Cir. 2013).

"Qualified immunity protects government officials . . .

from liability when they act under color of state law, and when

their actions or decisions, 'although injurious, "do[] not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known."'" Swartz v. Sylvester, 53

F.4th 693, 698 (1st Cir. 2022) (alteration in original) (quoting

Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)). To

address the appellants' argument, we look to the second prong of

the qualified immunity analysis, under which the court inquires

whether "the right at issue was 'clearly established' at the time

of the alleged violation."6 Est. of Rahim v. Doe, 51 F.4th 402,

6 We do not address whether under the facts alleged Dexter's conduct violated a constitutional right. See Maldonado v. Fontanes, 568 F.3d 263, 270 (1st Cir. 2009) ("Courts have discretion [in qualified immunity analysis] to decide whether, on

- 18 - 410 (1st Cir. 2022) (quoting Conlogue, 906 F.3d at 155). This

inquiry encompasses two separate examinations, each of which must

be satisfied in the affirmative for an officer to be found liable

for his or her conduct: First, "[t]he plaintiff must 'identify

either controlling authority or a consensus of persuasive

authority sufficient to put an officer on notice that his conduct

fell short of the constitutional norm.'" Id. (quoting Conlogue,

906 F.3d at 155). Second, "[t]he plaintiff must . . . 'show that

an objectively reasonable officer would have known that his conduct

violated the law.'" Id. (quoting Conlogue, 906 F.3d at 155). The

purpose of these examinations is to determine "whether the state

of the law [at the time of the officer's conduct] gave [him or

her] fair warning that [his or her] alleged treatment of [the

plaintiff] was unconstitutional." Lachance v. Town of Charlton,

990 F.3d 14, 20-21 (1st Cir. 2021) (last alteration in original)

(quoting Irish, 979 F.3d at 76). Under the second aspect of the

"clearly established" prong, we hold that Officer Dexter was

entitled to qualified immunity.

B.

"[A]n officer is entitled to qualified immunity '[i]f

. . . an objectively reasonable officer could have concluded (even

the facts of a particular case, it is worthwhile to address first whether the facts alleged make out a violation of a constitutional right.").

- 19 - mistakenly) that his or her conduct did not violate [the

plaintiffs'] rights.'" Stamps v. Town of Framingham, 813 F.3d 27,

34 n.7 (1st Cir. 2016) (second alteration in original) (quoting

Mlodzinski v. Lewis, 648 F.3d 24, 28 (1st Cir. 2011)). A court

will hold otherwise only if "the unconstitutionality of the

officer's conduct [is] beyond debate in light of an existing

principle of law." French v. Merrill, 15 F.4th 116, 126 (1st Cir.

2021). This is a "heavy burden" for a plaintiff to meet. Est. of

Rahim, 51 F.4th at 410 (quoting Lachance, 990 F.3d at 20).

Qualified immunity "gives government officials breathing room to

make reasonable but mistaken judgments, and protects all but the

plainly incompetent or those who knowingly violate the law." Hunt

v. Massi, 773 F.3d 361, 367 (1st Cir. 2014) (internal quotation

marks omitted) (quoting Carroll v. Carman, 574 U.S. 13, 17 (2014)).

The appellants argue that an objectively reasonable

officer would have known that Officer Dexter's conduct was unlawful

under the state-created danger doctrine. The appellants argue

that Officer Dexter unlawfully enhanced the danger that Pak posed

to the appellants when his conversation with Pak caused Pak to

become increasingly agitated. The appellants maintain that

Officer Dexter's conduct "shocks the conscience" because he failed

to take steps to mitigate the threat posed by Pak. Additionally,

the appellants contend that Officer Dexter enhanced the danger to

- 20 - the appellants when he "downplayed the risk the [appellants] faced

from Pak by omitting mention of the specific, immediate and

credible threats Pak was making about the [appellants]" and that

Pak was in an increasingly agitated state.

This court has held that, for a plaintiff to make a claim

in the First Circuit that his or her due process rights have been

violated under the state-created danger doctrine,

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;

(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.

- 21 - (ii) Where state actors must act in a matter of seconds or minutes, a higher level of culpability is required.

Irish, 979 F.3d at 75. We conclude that a reasonable officer could have

concluded at the time that Officer Dexter's conduct did not violate

the appellants' constitutional rights under the state-created

danger doctrine. Further, reasonable minds could disagree that

Officer Dexter's conduct when viewed in total shocks the

conscience, and that issue is not "beyond debate." Ciarametaro v.

City of Gloucester, 87 F.4th 83, 88 (1st Cir. 2023) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

The appellants contend that Pak's demeanor and

threatening language towards the appellants during his

interactions with Officer Dexter caused Dexter to be aware that

Pak posed "an actual, imminent threat" which required further

police action. But Officer Dexter reasonably could have believed

that there was no imminent threat from Pak requiring further action

on Officer Dexter's part. Prior to Officer Dexter's interactions

with Pak, Thompson had stated in response to Dexter's questioning

that he did not feel threatened by Pak's conduct, but rather only

felt harassed. Officer Dexter was also informed that Pak had a

history of exhibiting erratic and angry behavior without Pak's

engaging in actual violence, and that Pak was seventy-four years

- 22 - old. In addition, Officer Dexter was told by Johnson that Armit's

presence diminished the likelihood of conflict. See Irish, 979

F.3d at 79 (holding that officers were on notice their conduct was

unlawful when "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" (emphasis added));

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1064 (9th Cir. 2006)

(holding that officer acted with deliberate indifference where

plaintiff had "told [officer] in detail of [third party's] violent

tendencies, including several incidents of what can only be

described as alarming, aggravated violence").

Further, Officer Dexter reasonably could have believed

that his conduct would not create or enhance the danger posed to

the appellants. The appellants contend that Officer Dexter showed

deliberate indifference to a substantial risk of serious harm when

Officer Dexter allegedly "confirmed" to Pak he had "no rights" as

a landlord, thereby agitating him. But this is not what the record

shows. Officer Dexter repeatedly explained to Pak that he could

resolve any disputes with his tenants through the "whole eviction

process." The appellants point to Officer Dexter's expressions of

sympathy with Pak's plight, such as when Dexter told Pak that

"[l]andlords have a tough time in this state, and I feel sorry for

- 23 - you as a landlord because of the frustration that you're

experiencing." But Officer Dexter reasonably could have believed

that such conveyances of sympathy would have the effect of calming

Pak, rather than agitating him. See Suboh v. Dist. Att'y's Off.,

298 F.3d 81, 95 (1st Cir. 2002) ("If the officer's mistake as to

what the law requires is reasonable . . . the officer is entitled

to the immunity defense." (quoting Saucier v. Katz, 533 U.S. 194,

205 (2001))); Polanco v. Diaz, 76 F.4th 918, 931 (9th Cir. 2023)

(holding that officers were not protected by qualified immunity

because they "affirmatively expos[ed] their employees to workplace

conditions that they knew were likely to cause serious illness"

(emphasis added)). Further, Officer Dexter expressed these

sentiments alongside statements that Pak could not "threaten to

physically hurt" his tenants, and Dexter repeatedly advised Pak to

stay away from his tenants. Officer Dexter also told Pak that he

had a lot to lose were he to "let the dispute get to him."

The appellants further argue that Officer Dexter

enhanced the danger posed by Pak because he "enabled" Pak's belief

that he could attack the appellants with impunity. The appellants

maintain that Officer Dexter enabled such belief when he told Pak

that Pak could not threaten the appellants but did not also tell

Pak that he could not act on such threats. But Officer Dexter did

make several statements that Pak should restrain himself. Officer

- 24 - Dexter told Pak that Pak would face legal consequences if he were

to damage the appellants' furniture. Officer Dexter also told Pak

repeatedly to stay away from the tenants, that he did not want to

see his name in the newspaper, and that he should not let the

dispute get to him. Officer Dexter indicated that Pak should

"leave [the tenants] alone," and to resolve any dispute "through

the courts." See Okin v. Vill. of Cornwall-on-Hudson Police Dep't,

577 F.3d 415, 434 (2d Cir. 2009) (holding that officers had fair

notice that their conduct was unlawful because they "engaged in a

pattern of behavior that unmistakably communicated to [a third

party] that should he intend to commit acts of violence . . . ,

they would do nothing to stop him").

The appellants next argue that Officer Dexter acted

unlawfully when he failed to inquire whether Pak had access to a

firearm, initiate a mental health intervention, or arrest or

summons Pak for a criminal violation.7 Officer Dexter's failure

7 The appellants argued before the district court that General Order 136-96, the Biddeford Police Department's deviant conduct policy, supported their argument that Dexter acted with deliberate indifference when he failed to take Pak into custody. See Irish, 979 F.3d at 77 ("A defendant's adherence to proper police procedure bears on all prongs of the qualified immunity analysis."). Although the appellants maintain that the General Order has relevance here, the appellants do not challenge on appeal the district court's conclusion that the order did "not . . . render it beyond debate that Officer Dexter's failure to take Pak into custody was unconstitutional," and so the argument is waived. See Martínez-Rivera v. Puerto Rico, 812 F.3d 69, 71

- 25 - to make various inquiries about Pak may have been a serious

misjudgment, but this failure was not an affirmative action, and

so is not sufficient on its own to establish unlawfulness under

the state-created danger doctrine. See Rivera v. Rhode Island,

402 F.3d 27, 34 (1st Cir. 2005). A law enforcement officer does

not violate the Due Process Clause merely by "fail[ing] to protect

an individual against private violence." Id. (quoting DeShaney v.

Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989)).

The appellants additionally argue that Officer Dexter's

statements to the appellants after his conversation with Pak

misrepresented the actual risk of danger, and thereby placed the

appellants in a more vulnerable position. We do not find in the

facts alleged by the appellants any misstatements uttered by

Officer Dexter about his interactions with Pak. Officer Dexter

informed the appellants that Pak was "obviously extremely upset,"

told them to avoid contact with him, and expressed uncertainty

about whether his conversation with Pak had successfully placated

him. See Irish, 979 F.3d at 79 (holding that officers' conduct

was clearly unlawful in part because they "fail[ed] to take steps

to mitigate the danger they had created and misle[d] the victim

about the level of police protection she had"); Kennedy, 439 F.3d

n.2 (1st Cir. 2016) ("[A]rguments 'not developed in a party's opening brief are waived.'" (quoting HSBC Realty Credit Corp. (USA) v. O'Neill, 745 F.3d 564, 577 (1st Cir. 2014))).

- 26 - at 1065 (holding that officer's conduct was not shielded by

qualified immunity under state-created danger doctrine in part

because officer "allegedly reassured the visibly frightened

[victim] of increased security which was either never provided or

plainly ineffective.").

The appellants contend that Officer Dexter caused the

appellants to be unaware that Pak had made immediate, direct

threats towards their lives when he merely told them to stay away

from Pak. But as Officer Dexter knew at the time, Thompson,

Johnson, and Welch had already heard Pak violently threaten

Thompson, including Pak's statement that he would "shoot"

Thompson. 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. See Meléndez-García v.

Sánchez, 629 F.3d 25, 37 (1st Cir. 2010) ("[E]ven where the

government is aware of specific dangers . . . it must perform a

triage among competing demands." (omission in original) (quoting

Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 54 (1st Cir. 2006))).

C.

We turn to and reject the appellants' argument that prior

caselaw clearly gave Officer Dexter fair warning. See Hope v.

Pelzer, 536 U.S. 730, 741 (2002) ("[E]arlier cases involving

'fundamentally similar' facts can provide especially strong

- 27 - support for a conclusion that the law is clearly established

. . . ."). While a factually similar case is not necessary to

clearly establish the unlawfulness of an officer's conduct, see

Irish, 979 F.3d at 78, the existence of prior caselaw with similar

facts can bolster such a claim, see Kisela v. Hughes, 138 S. Ct.

1148, 1153 (2018) ("Precedent involving similar facts can help

move a case beyond the otherwise 'hazy border between excessive

and acceptable force' and thereby provide an officer notice that

a specific use of force is unlawful." (quoting Mullenix v. Luna,

577 U.S. 7, 18 (2015))).

Appellants argue that the Ninth Circuit's 2006 decision

in Kennedy has a fact pattern similar to this case, and so provided

Officer Dexter fair warning. In that case, the plaintiff reported

to law enforcement that her neighbor Burns had molested her

daughter and that Burns might respond violently if he learned of

the allegation. 439 F.3d at 1057-58. The police promised to warn

the plaintiff before contacting Burns, but the investigating

officer informed Burns's mother of the allegation without warning.

Id. at 1058. When the plaintiff expressed a fear that she could

be harmed, the officer told her that law enforcement would patrol

the neighborhood to keep an eye on Burns, causing the plaintiff to

decide to remain in her home that night. Id. There was no patrol,

and Burns retaliated by shooting the plaintiff and her husband in

- 28 - their home. Id. The court held that the officer had violated a

clearly established constitutional right under the state-created

danger doctrine. See id. at 1067.

Kennedy did not provide such fair warning. The

appellants maintain that Officer Dexter's conduct was similar to

that in Kennedy because Dexter endangered the appellants by

agitating Pak. As discussed, however, a reasonable officer could

have believed that Officer Dexter's conduct would not enhance the

danger posed by Pak, and that Pak did not pose an actual threat.

In contrast, the officer in Kennedy took an affirmative action --

informing Burns's mother of the allegations against him -- that

the officer had been expressly warned would endanger the plaintiff.

See id. at 1065 ("Of all the possible actions [the officer] could

take, and pursuant to no investigatory duties, he took the one

most feared by [the plaintiff].").

The appellants also contend that Kennedy is factually

similar because the officer in that case misrepresented the extent

of the protection available to the plaintiff, while Officer Dexter

misrepresented to the appellants the threat posed by Pak. Aside

from the question of whether Officer Dexter in fact made any

misrepresentations to the appellants, we are not convinced that

Kennedy is on point. The officer's misrepresentation in Kennedy

enhanced a danger that the officer knew he had created. Id.

- 29 - Unlike the conduct at issue in Kennedy, Officer Dexter reasonably

could have believed that the omission of graphic details from his

retelling of his conversation with Pak was a prudent strategy to

avoid further conflict between the parties. See id. (concluding

that the officer "acted deliberately and indifferently to the

danger he was creating.").

The appellants additionally argue that Officer Dexter

had fair warning due to the Seventh Circuit's decision in Monfils

v. Taylor, 165 F.3d 511 (7th Cir. 1998). The officer in Monfils

failed to prevent the release of a tape recording that revealed an

employee had accused his co-worker of theft, despite the officer's

assurances to the employee and an assistant district attorney that

the recording would remain unreleased on account of the employee's

fears of violent retaliation. 165 F.3d at 513-15. Following

release of the tape, the employee was killed by several of his

co-workers. Id. at 515. The court held that the officer was not

shielded by qualified immunity because the officer "took

responsibility for preventing the release of the tape," but then

did not follow through despite having "information in his

possession indicat[ing] that the tape should not be released."

Id. at 519-20. The officer's false assurances that he would

prevent release of the tape "created a danger [the employee] would

not otherwise have faced." Id. at 518.

- 30 - Officer Dexter did not take actions comparable to those

taken by the officer in Monfils. The officer in Monfils had

express warning that release of the tape recording would endanger

the plaintiff. See id. at 520 (holding that the officer "knew of

the increased danger" from releasing the tape). Officer Dexter,

by contrast, reasonably could have believed that his interactions

with the Paks would not create or enhance a danger to the

appellants. Moreover, Officer Dexter did not make any false or

misleading assurances to the appellants about the extent of

protection they would receive. Monfils therefore did not provide

fair warning to Officer Dexter.8

8 The appellants cite two district court cases, each of which were decided after the challenged conduct here, in support of their argument that Kennedy and Monfils provided fair warning to Officer Dexter. According to the appellants, both of these opinions "rely on prior Ninth Circuit jurisprudence in holding that the officers were fairly on notice that their conduct violated the plaintiffs' substantive due process rights." Neither of these district court cases, however, involves a qualified immunity defense, and so they do not address the issue of whether the officers were fairly on notice. See Mackie v. Cnty. Of Santa Cruz, 444 F. Supp. 3d 1094 (N.D. Cal. 2020); McClammy v. Halloran, No. 18-68-GF, 2019 WL 4674462 (D. Mont. Sept. 25, 2019). Accordingly, neither of these cases has persuasive value here. Moreover, the Ninth Circuit decisions that these cases rely upon involve substantially different fact patterns than the one before us. McClammy, as the appellants recognize, "relie[d] only on Kennedy for the proposition that the state-created danger theory [was] viable in [that case's] fact-pattern." As we discussed, Kennedy did not provide Officer Dexter fair warning. The court in Mackie relied upon three Ninth Circuit cases that each involve fact patterns where officials took affirmative steps that indisputably placed the plaintiffs in a more dangerous situation than the one

- 31 - Officer Dexter, in speaking with Pak but failing to make

various inquiries such as whether Pak had access to a firearm, may

have made a serious misjudgment. The qualified immunity defense,

however, "demands deference to the reasonable, if mistaken,

actions of the movant." Justiniano, 986 F.3d at 27 (quoting

Morelli, 552 F.3d at 18-19)). A reasonable officer could have

understood Officer Dexter's conduct to be consistent with the

constitution, and so he is entitled to qualified immunity.

IV.

We affirm the grant of summary judgment on all claims.

in which the officials found them. See Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1085, 1087 (9th Cir. 2000) (describing that patron died of hypothermia after "officers affirmatively ejected [him] from a bar late at night when the outside temperatures were subfreezing," and then "prevented [him] from driving his truck or reentering [the bar]," despite their knowledge that he "was wearing only a t-shirt and jeans[ and] was intoxicated"); L.W. v. Grubbs, 92 F.3d 894, 895-96 (9th Cir. 1996) (describing that prison official approved known sex-offender inmate to work with female prison nurse, despite previously having been told not to allow the inmate to work one-on-one with any women, and that the inmate then attacked and attempted to rape the nurse); Wood v. Ostrander, 879 F.2d 583, 586, 590 (9th Cir. 1989) (describing that the plaintiff was raped after officer "impounded [her] car, and apparently stranded [her] in a high-crime area at 2:30 a.m."). Here, Officer Dexter took no such affirmative action.

- 32 -