CONSTITUTIONAL LAW - DANGERS OF THE SUBSTANTIVE DUE PROCESS STATE-CREATED DANGER EXCEPTION - IRISH V. FOWLER, 979 F.3D 65 (1ST CIR. 2020).

• Author: Tomassini, Bianca

When an individual is deprived of life, liberty, or property by the state without due process of law, he or she may bring a cause of action against the state agent ("State Actor") that caused the deprivation under 42 U.S.C. [section] 1983. (1) While State Actors are generally not liable for failing to protect an individual from the deprivation of life, liberty, or property by a private actor, this rule is subject to a few exceptions. (2) In Irish v. Fowler, (3) the United States Court of Appeals for the First Circuit considered, as an issue of first impression, whether State Actors can be held liable for failing to protect an individual from a third party when the State's actions resulted in the deprivation of that individual's due process rights. (4) The court ultimately held that state officials were liable for constitutional violations under the state-created danger theory and that their conduct was not justified by qualified immunity.5

On July 15, 2015, plaintiff, Brittany Irish ("Irish"), reported to police that she was kidnapped and repeatedly raped the previous night by her ex-boyfriend, Anthony Lord ("Lord"). (6) The case was assigned to defendants, Detective Perkins and Detective Fowler, who were told that Lord was a registered sex offender. (7) After receiving Irish's statement, which also reported Lord's alleged threat to cut her from ear to ear, the detectives met with Irish, who explained she was "scared that Anthony Lord would become terribly violent if he knew [Irish] went to the police." (8) Later that evening, the detectives found evidence corroborating Irish's allegations. (9) The next day, the detectives called Lord to obtain his statement; when Lord did not answer, Detective Perkins left a voicemail. (10)

Approximately an hour and forty-five minutes after Detective Perkins left the voicemail, the detectives "received notice of a 'possible suspicious' fire in Benedicta, the town where the detectives" found evidence corroborating the allegations against Lord. (11) Irish notified the detectives that it was her parents' barn that was on fire, and reported that earlier that evening "someone had heard Lord say ... 'I am going to kill a fucker.'" (12) The detectives then began their search for Lord, notifying other state officials to "use caution" if they were to find him. (13) Soon after the detectives arrived to the barn fire, Irish received a call from her brother who informed her that Lord was "irate" after receiving the voicemail from Detective Perkins and said that "someone's gonna die tonight." (14) Irish relayed this information to the detectives and asked for protection, but the detectives left the scene. (15) About an hour later, the detectives requested a criminal background check on Lord and learned of his criminal record. (16)

After receiving no response from the detectives regarding her requests for protection, Irish called them a third time and was told no protection could be provided because law enforcement lacked "the manpower." (17) Between 3:00 A.M. and 4:00 A.M., when all police resources left the area, Lord stole a truck, drove to the Irish's, and went on a shooting rampage. (18)

Nine hours later, the police apprehended Lord after he killed Irish's boyfriend, shot Irish's mom, and abducted Irish. (19) Irish and her mother brought a [section] 1983 action against the detectives, claiming a Substantive Due Process violation. (20) The United States District Court for the District of Maine granted summary judgment on the basis of qualified immunity and the plaintiffs appealed. (21) Upon review, the First Circuit "affirm[ed] the district court's holding that a jury could find that the officers violated the plaintiffs' substantive due process rights [and] reverse[d] the grant of defendants' summary judgment motion on qualified immunity grounds." (22)

Congress enacted 42 U.S.C. [section] 1983 to allow individuals to bring suit against a State Actor when the State Actor deprives a person of life, liberty, or property without the due process of law. (23) In order to recover for a substantive due process violation under [section] 1983, the plaintiff must "first, show a deprivation of a property interest in life, liberty, or property" and subsequently "show that the deprivation of this protected right was caused by government conduct." (24) The Supreme Court of the United States, in DeShaney v. Winnebago County Department. of Social Services, (25) held that a substantive due process violation does not arise when the State fails to protect individuals from violence by private actors because the State does not cause the deprivation. (26) The Court explained that the purpose of the Due Process Clause "was to protect the people from the State, not to ensure that the State protected [the people] from each other." (27) Since DeShaney, lower courts have recognized two departures from this general rule. (28) One of these recognized exceptions is the state-created danger theory, which provides for a cause of action if the State creates or enhances some danger to an individual and then fails to protect the individual from harm subsequently caused by a third party. (29)

Although many circuits have adopted the state-created danger theory, there are still some that have not. (30) Because the Supreme Court has never explicitly endorsed or applied the state-created danger theory, its scope remains unclear, resulting in the creation of varied frameworks across circuit courts. (31) Despite this ambiguity, circuits agree that when the state violates an individual's constitutional rights under the doctrine, then [section] 1983 permits recovery; however, State Actors may be protected from civil liability if they are entitled to qualified immunity. (32) The doctrine of qualified immunity shields government officials sued in their individual capacities from civil liability unless the State Actors (1) violated a federal or constitutional right; and (2) the unlawfulness of their conduct was "clearly established at the time." (33) Qualified immunity shields State Actors from liability in jurisdictions that have not recognized the state-created danger doctrine because failing to protect an individual from a third party is not considered a constitutional violation. (34) Qualified immunity also protects State Actors from liability in jurisdictions that have adopted the doctrine because the ambiguity surrounding the doctrine has caused courts to conclude that the unlawfulness of their conduct was not clearly established at the time. (35)

While, prior to 2020, the First Circuit had not recognized the state-created danger doctrine, it considered its scope in precedent cases. (36) In Rivera v. Rhode Island (37), the court discussed the doctrine, but ultimately ruled that the exception was inapplicable as law enforcement's conduct of identifying the plaintiff as a witness and taking her witness statement in a murder investigation did not trigger a duty to protect under the state-created danger theory. (38) The Rivera court examined its prior case law on the state-created danger doctrine and reiterated that the State's action must create or enhance danger to the individual, as well as "shock the conscience." (39) Though the Rivera court's framework for the state-created danger doctrine differs from those applied by other circuits, central similarities have emerged among them. (40) The core elements required to prevail on a state-created danger claim are: (1) that a state official affirmatively acted to create or enhance harm to the plaintiff; (2) that the potential harm was specific to the plaintiff; (3) that the act caused harm to the plaintiff; and (4) that the act was highly culpable. (41) Despite the common features among these circuits, courts remain split as to whether the doctrine is valid and whether it is "clearly established law." (42)

In Irish v. Fowler, the First Circuit considered whether State Actors can be held liable for a substantive due process violation under the state-created danger doctrine, and if so, whether the State Actors can claim immunity based on an argument that the doctrine was not "clearly established at the time" of the violation. (43) As an issue of first impression, the court adopted the state-created danger doctrine, which recognizes that State Actors may be liable for failing to protect victims against private conduct when the State Actor's action enhanced the danger to the victim and such conduct caused a deprivation of life, liberty, or property. (44) In its reasoning, the court looked to the history of the doctrine and noted that the Supreme Court in DeShaney "suggested that when the state creates the danger to an individual, an affirmative duty to protect might arise." (45) The court then looked to the nine circuits that have recognized the doctrine and identified the common elements required to assert a viable state-created danger substantive due process claim. (46) Specifically, the court recognized that these circuits require that "the defendant affirmatively acted to create or exacerbate a danger to a specific individual or class of people.... [And] the defendant's acts be highly culpable and go beyond mere negligence." (47) After considering the scope of the theory, the court acknowledged that it has "repeatedly outlined the core elements of the state-created danger doctrine," but despite its past discussions, had not found it applicable to the facts of a specific case until now. (48)

In recognizing the state-created danger doctrine, the First Circuit formally defined "the necessary components" for a viable claim and considered whether the detectives were protected by qualified immunity. (49) The court agreed with the district court's conclusion that a jury could find that a substantive due process violation occurred, and thus focused on whether the state-created danger law was "clearly established" at the time of the violation. (50) To determine whether the...