United States Court of Appeals

For the First Circuit

No. 20-1474

JOCELYNE WELCH, as personal representative of the Estate of 

Alivia Welch,

Plaintiff, Appellant,

SUSAN JOHNSON, individually and on behalf of her minor son B.L. 

and on behalf of Derrick Thompson, deceased,

Plaintiff,

v.

CITY OF BIDDEFORD POLICE DEPARTMENT; ROGER P. BEAUPRE, 

individually and as Chief of Biddeford Police Department; EDWARD 

DEXTER, individually and as an employee of Biddeford Police 

Department; JACOB WOLTERBEEK, individually and as an employee of 

Biddeford Police Department; CITY OF BIDDEFORD; JANE DOES,

Defendants, Appellees,

MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually 

and as Commissioner of Maine Department of Public Safety,

Defendants.

No. 20-1481

SUSAN JOHNSON, individually and on behalf of her minor son B.L. 

and on behalf of Derrick Thompson, deceased,

Plaintiff, Appellant,

JOCELYNE WELCH, as personal representative of the Estate of 

Alivia Welch,

Plaintiff,
v.

CITY OF BIDDEFORD POLICE DEPARTMENT; ROGER P. BEAUPRE, 

individually and as Chief of Biddeford Police Department; EDWARD 

DEXTER, individually and as an employee of Biddeford Police 

Department; JACOB WOLTERBEEK, individually and as an employee of 

Biddeford Police Department; CITY OF BIDDEFORD; JANE DOES,

Defendants, Appellees,

MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually 

and as Commissioner of Maine Department of Public Safety,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Lynch and Kayatta, Circuit Judges,

and Laplante,* District Judge.

Kristine C. Hanly, with whom Sarah A. Churchill and Nichols 

& Churchill, P.A. were on brief, for appellant Jocelyne Welch, as 

personal representative of the Estate of Alivia Welch. 

Kristine C. Hanly, with whom Hanly Law, LLC was on brief, for 

appellant Susan Johnson, individually and on behalf of her minor 

son B.L. and on behalf of Derrick Thompson, deceased. 

Joseph A. Padolsky, with whom Douglas I. Louison and Louison, 

Costello, Condon & Pfaff, LLP were on brief, for appellees. 

August 27, 2021

* Of the District of New Hampshire, sitting by designation.
- 3 -

LYNCH, Circuit Judge. On December 29, 2012, Alivia 

Welch, Susan Johnson, and Derrick Thompson called the Biddeford, 

Maine Police Department and reported that their landlord James 

Pak, who lived in a house attached to their apartment, had just 

made death threats to them. Police Officers Edward Dexter and 

Jacob Wolterbeek responded to the call. On Officer Dexter's 

instructions, Officer Wolterbeek left shortly after arriving. 

We understand the key focus in the case is on what 

Officer Dexter then did. Officer Dexter learned that Pak had told 

the tenants he had a gun, and had threatened to shoot them and to 

bury Thompson in the snow. When Officer Dexter went to speak with 

him, the increasingly angry Pak started to describe what he was 

going to do to get his name in the newspaper the following day but 

stopped, saying to his wife he did not want to reveal those plans 

to the officers. Pak then screamed at Officer Dexter that he had 

"nothing to lose" and that "you're going to see me in the newspaper 

tomorrow," and stated that there would be a "bloody mess." Officer 

Dexter chose to leave at that point. He did so without 

ascertaining whether Pak indeed had a gun or was drunkenly out of 

control. Less than four minutes after Officer Dexter departed, 

Pak carried out his threats, entered the tenants' apartment, shot 

and killed Welch and Thompson, and shot and injured Johnson with 

his gun. 
- 4 -

Johnson, wounded in the shooting, and the estates 

representing the murdered Welch and Thompson (collectively, the 

"plaintiffs") filed suit, alleging inter alia that the officers

had violated their federal constitutional substantive due process 

rights under the state-created danger doctrine.1 The district 

court granted summary judgment to the defendants, choosing not to 

address first the officers' qualified immunity defense that the 

law was not clearly established. Johnson v. City of Biddeford, 

454 F. Supp. 3d 75, 91 n.14 (D. Me. 2020). Instead it held that 

no substantive due process claim had been presented. Id. at 91. 

The district court did so before either it or the parties had the 

benefit of our later decision in Irish v. Fowler, 979 F.3d 65 (1st 

Cir. 2020) ("Irish II"). We now affirm in part and vacate and 

remand in part. 

I. Background

On reviewing the grant of defendants' motion for summary 

judgment, we recite the facts in the light most favorable to the 

plaintiffs. Irish II, 979 F.3d at 68. In doing so, we do not 

suggest that these facts are sufficient to decide the substantive 

due process issue, that all of them are material, or that all 

material facts have been presented. 

1 Johnson sued individually and on behalf of her six-yearold son who was in the apartment at the time of the shooting. 
- 5 -

In 2012 Susan Johnson and her son Derrick Thompson were 

renting an apartment in Biddeford, Maine, from Armit and James 

Pak. The apartment was attached to the Paks' home and shared a 

driveway with the home. Alivia Welch, Thompson's girlfriend, was 

also staying in the apartment. 

On the evening of December 29, 2012, James Pak got into 

an argument with Thompson outside the apartment. Pak screamed at 

and made obscene gestures at the plaintiffs. He also threatened 

to hit Thompson, pointed his fingers at the plaintiffs in the shape 

of a gun and said "bang," and threatened to bury Thompson in the 

snow. Thompson called the police and reported that his landlord 

was "freaking out on him," making death threats towards him, and 

pointing his finger at him like it was a gun. Johnson recorded 

portions of this altercation on her cellphone. 

Officers Dexter and Wolterbeek were dispatched to the 

apartment. Officer Dexter arrived at the scene first and spoke to 

the plaintiffs.2 They showed him the videos recorded that evening 

of Pak screaming at them. The plaintiffs also told Officer Dexter

exactly the threats described before, including the threat to shoot 

the plaintiffs and the threat to bury Thompson. The plaintiffs 

warned Officer Dexter that once Pak had tried to follow Thompson 

into the apartment after a confrontation. They said that they 

2 Officer Dexter was wearing an audio recording device 

which captured his interactions with the plaintiffs and the Paks. 
- 6 -

often had confrontations with Pak, but that this time was different 

because Armit Pak, James Pak's wife, had not come over, as she 

usually did, to apologize to them after Pak "freak[ed] out." 

Johnson told Officer Dexter that her six-year-old son was in a 

different room, as they were trying to keep him away from the 

situation with Pak. Officer Wolterbeek arrived while Officer 

Dexter was speaking with the plaintiffs and briefly spoke with Pak 

in the driveway. He then went into the apartment and listened to 

Officer Dexter's ongoing conversation with the plaintiffs. 

Officer Dexter asked the plaintiffs what the biggest problem was 

between them and the Paks. They responded that the current conflict 

was about how many cars could be parked in the driveway under their

lease agreement. After stepping outside the apartment, Officer 

Dexter told Officer Wolterbeek that he could leave. 

Officer Dexter then went next door to speak to both of 

the Paks. The doors to the Paks' home and the plaintiffs' apartment 

are directly adjacent to each other, almost side-by-side. Armit 

Pak explained that James Pak was angry with the plaintiffs about 

the parking as well as other issues and that they were in the 

process of evicting the plaintiffs. In describing to Officer 

Dexter his conflicts with Thompson, Pak said that he told Thompson 

he had a gun, would shoot him, and said "bang" to Thompson.

Officer Dexter repeatedly explained that he could not do 

anything about the car parked in the driveway or the eviction as 
- 7 -

those were "civil issue[s]." He also repeatedly told Pak that 

these civil issues would have to be handled through the courts, 

that the court process would be difficult, and that the downside 

of being a landlord in Maine is that "tenants in this state have 

so many rights," which is frustrating for landlords. Officer 

Dexter said several times that he "understood" or "felt sorry" for 

the Paks.

Officer Dexter also told James Pak that he could not 

physically threaten or threaten to shoot his tenants, that such 

threats were a criminal offense, and that he could be issued a 

criminal summons if he threatened his tenants again. Pak expressed

to Dexter frustration about this information. He asked why 

Thompson could threaten him but he could not threaten Thompson. 

Officer Dexter responded by saying that Thompson was just being 

rude. He then stated that he understood how Thompson’s actions 

upset Pak and that Thompson was being disrespectful to Pak. Later 

in the conversation, Pak accused Thompson of calling him names and 

said, “now I just don’t, I don’t have any rights?” In response, 

Officer Dexter again told Pak that he understood his frustration 

and apologized to Armit Pak for not having more "responses for 

[her]." During the conversation, Pak repeatedly expressed 

frustration to Officer Dexter that he felt like he had no rights, 

but that his tenants had rights.
- 8 -

The recordings show Pak was angry throughout the 

conversation and in the last three minutes raised his voice 

increasingly often and was screaming or yelling. Pak twice told 

Officer Dexter that he had "nothing to lose," yelled that he would 

be a "big name tomorrow," and said that "you're going to see [him] 

in the newspaper." Pak started describing what he was going to do

to get a big name and to be in the newspapers "tomorrow," but 

stopped. Officer Dexter heard him say next to Armit Pak, "I'm not 

going to tell you in front of [Officer Dexter]." Pak screamed at 

Officer Dexter that the "least" he could do was tell the plaintiffs 

not to park a third car in the driveway. At one of Pak's angriest 

moments, seconds after Pak yelled that he was going to be "a big 

name tomorrow" and screamed that Officer Dexter did not understand 

Pak's situation, Officer Dexter said, "okay, I'm going to go now." 

Officer Dexter then told Pak to keep his distance, and 

Pak replied that Officer Dexter "d[id]n't have to worry about 

that." The last thing Pak said as Officer Dexter left the house 

was that "it's going to be a bloody mess." 

Knowing that Pak told Thompson he had a gun and would 

shoot him, Officer Dexter nonetheless chose not to ask Pak whether 

he had any firearms or ammunition, nor did he search Pak for 

weapons. Officer Dexter also chose not to ask Pak whether he had 

consumed any alcohol or conduct a field sobriety test. The 

officers who arrested Pak had "smelled the odor of intoxicants" on 
- 9 -

him.3 Officer Dexter said he was never within six feet of Pak and 

did not smell the alcohol. 

Officer Dexter then went back to speak to the plaintiffs 

and told them that Pak was very upset and to avoid Pak for the 

rest of the evening. Officer Dexter then chose to leave. He did 

not mention to the plaintiffs the additional threats Pak had made. 

Officer Dexter cleared the scene at 6:51 PM. 

Immediately on Officer Dexter's leaving, Pak grabbed his 

Smith & Wesson .357 revolver and entered the plaintiffs' apartment.

He shot twice and injured Johnson, then shot once and killed 

Thompson and shot twice and killed Welch. At 6:55 PM, Johnson 

called 911 to report what had just happened. 

II. Procedural History

The plaintiffs filed complaints against the City of 

Biddeford, the Biddeford Police Department, the Maine Department 

of Public Safety,4 and Officers Dexter and Wolterbeek alleging, 

inter alia,5 that the officers had violated their substantive due 

3 When Pak was arrested, he had a blood alcohol level of 

.15, roughly twice the legal limit. After Pak's arrest, Armit Pak 

reported that Pak had been drinking beer "all day." 

4 The parties stipulated to dismissing with prejudice all 

claims against the Department of Public Safety and its 

Commissioner. Johnson, 454 F. Supp. 3d at 81 n.2.

5 The complaints also alleged negligence, negligent 

infliction of emotional distress, intentional infliction of 

emotional distress, assault and battery, wrongful death, civil 

conspiracy, breach of quiet enjoyment under Maine law, and a claim 
- 10 -

process rights under the state-created danger doctrine. The 

plaintiffs also brought Monell claims against the Biddeford Police 

Chief Roger Beaupre and the City of Biddeford and claims under the 

Maine Civil Rights Act against the officers. See Monell v. Dep't 

of Soc. Servs., 436 U.S. 658 (1978); Me. Rev. Stat. Ann., tit. 5,

§ 4682(1-A). After discovery, the defendants moved for summary 

judgment.

The district court granted the defendants' motion for 

summary judgment on all claims. Johnson, 454 F. Supp. 3d at 95.

Relying only on its conclusion that the officers had taken no 

affirmative act greatly increasing the danger to the plaintiffs, 

it held that there had been no substantive due process violation. 

Id. at 91. It did not address whether the law was "clearly 

established" for the purposes of the second part of the qualified 

immunity inquiry.6 Id. at 91 n.14. As to the Monell and Maine 

Civil Rights Act claims, the district court concluded that because 

under 42 U.S.C. § 1985.

The district court granted summary judgment to the 

defendants on all of these claims. Johnson, 454 F. Supp. 3d at 

92-95. The plaintiffs make no argument in their opening briefs as 

to any of these claims and any such argument is waived. See, e.g., 

Págan-Lisboa v. Soc. Sec. Admin. 996 F.3d 1, 7 (1st Cir. 2021). 

6 Police officers "are entitled to qualified immunity 

under § 1983 unless (1) they violated a federal statutory or 

constitutional right, and (2) the unlawfulness of their conduct 

was 'clearly established at the time.'" Dist. of Columbia v. 

Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 

U.S. 658, 664 (2012)).
- 11 -

the officers had not violated the plaintiffs' constitutional 

rights, those claims failed. Johnson, 454 F. Supp. 3d at 92. 

III. Analysis

The Fourteenth Amendment's Due Process clause states 

that "[n]o State shall . . . deprive any person of life, liberty, 

or property, without due process of law." U.S. Const. amend. XIV, 

§ 1. In general, the state's failure to protect an individual 

from private harm does not give rise to a due process claim. 

DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 

197 (1989). As the law has developed since 1989, this circuit 

joined other circuits in Irish II in recognizing that a plaintiff 

may make out a due process claim under the state-created danger 

doctrine by showing 

(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.

979 F.3d 65, 75 (1st Cir. 2020). 

The plaintiffs present several arguments that various 

acts taken by Officers Wolterbeek and Dexter were affirmative acts 
- 12 -

that enhanced the danger to them.7 We affirm the district court's 

decision that Officer Wolterbeek took no affirmative act that 

enhanced the danger to the plaintiffs. We see no evidence in the 

record that any of Officer Wolterbeek's actions increased any 

danger to the plaintiffs. The plaintiffs also do not explain how 

any of Officer Wolterbeek's actions, on their own, could give rise 

to a state-created danger claim. Officers are not liable under 

§ 1983 for the actions of other officers. See Leavitt v. Corr. 

Med. Servs., Inc., 645 F.3d 484, 502 (1st Cir. 2011); see also

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating that in § 1983 

cases, the plaintiff must show that "each Government-official 

defendant, through the official's own individual actions, has 

violated the Constitution").

As to Officer Dexter, we are disinclined given the 

changes in the law to ourselves decide the merits of the 

substantive due process claim. As previously stated, the parties 

did not have the benefit of Irish II in conducting their discovery 

and presenting evidence in this case. Nor did the district court 

have the benefit of that opinion, which clarified this circuit's 

law and now must be applied. Irish II is pertinent in at least 

three important senses and all three lead us to conclude that a 

remand is appropriate here. See Gastronomical Workers Union Loc. 

7 We do not address Welch's arguments that the decisions 

not to charge or arrest Pak were affirmative acts. 
- 13 -

610 v. Dorado Beach Hotel, 617 F.3d 54, 66 (1st Cir. 2010) 

(remanding when intervening precedent meant that district court 

"did not engage in the requisite analysis"); United States v. 

Taylor, 532 F.3d 68, 70 (1st Cir. 2008) (remanding for 

reconsideration where a decision "on the present record would not 

fully actualize" the intervening developments in the law). 

First, Irish II established that the first prong of the 

state-created danger claim is whether a state actor's affirmative 

act "created or enhanced" a danger to the plaintiffs. Irish II, 

979 F.3d at 75. Without the benefit of our decision, the district 

court held, contrary to Irish II, that under the state-created 

danger doctrine an affirmative act must "greatly" enhance the 

danger to the plaintiffs, rather than simply "enhance" the danger. 

Compare Johnson, 454 F. Supp. 3d at 85, with Irish II, 979 F.3d at 

75. 

Second, Irish II recognized that, "[w]here officials 

have the opportunity to make unhurried judgments, deliberate 

indifference may shock the conscience, particularly where the 

state official performs multiple acts of indifference to a rising 

risk of acute and severe danger." 979 F.3d at 75. This holding 

may bear on both the parties' argument and the district court's 

analysis. 

Finally, Irish II established the relevance of state and 

national policing policies to the state-created danger analysis. 
- 14 -

It explained that "[a] defendant's adherence to proper police 

procedure bears on all prongs of the qualified immunity analysis," 

including whether an officer's conduct shocked the conscience and 

whether a reasonable officer "would have believed that his conduct 

violated the Constitution." Id. at 77 (quoting Stamps v. Town of 

Framingham, 813 F.3d 27, 32 n.4 (1st Cir. 2016)). The parties 

have presented little evidence as to police standards and training 

in handling disputes between neighbors or landlords and tenants.8

Such evidence may well be important to the disposition of the case. 

For example, officers are sometimes required to do more than 

Officer Dexter did here when credible death threats are made in a 

domestic violence context. See Irish II, 979 F.3d at 72 

(explaining that Maine State Police are required to "use all 

reasonable means to prevent further abuse" including "[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." (quoting Me. Stat. tit. 19-A, § 4012(6)) (alterations in 

8 The record states that Officer Dexter was trained on how 

to deal with landlord/tenant disputes, but does not explain the 

content of that training. 

There is also evidence in the record as to several 

Biddeford Standard Operating Procedures, including the Biddeford 

Police Department policy which requires officers "to take action 

to assist persons who are exhibiting symptoms of deviant behavior 

and appear to represent an imminent danger to themselves or to 

someone else." 
- 15 -

original)). There may be an analogous duty in cases such as this 

one. 

We make no determination as to whether the plaintiffs 

may prevail on any of the prongs of the Irish II state-created 

danger test. Indeed, it would be premature to reach the "shocks 

the conscience" prong, as we here address only the district court's 

error in evaluating the danger-enhancing prong. Nor do we suggest 

that an officer leaving the scene on different facts would amount 

to or contribute to an affirmative act that created or enhanced 

the danger to others. Our narrow decision to remand, however, is 

consonant with the rulings of other federal courts in state-created 

danger cases. See, e.g., Martinez v. City of Clovis, 943 F.3d 

1260, 1273 (9th Cir. 2019) (holding that officer's conduct of 

praising domestic violence abuser as good people in the abuser's 

presence after officer refused to arrest abuser following 

plaintiff's domestic violence complaint supported plaintiff's 

§ 1983 substantive due process claim under the state-created 

danger theory; officer's alleged positive remarks could reasonably 

have emboldened abuser to continue abusing plaintiff); id. at 1272 

(holding that reasonable jury could find officer violated 

plaintiff's substantive due process rights under state-created 

danger theory where officer "provoked" and "emboldened" domestic 

abuser by disclosing to abuser plaintiff's "testimony relating to 

[] prior abuse and also stat[ing] that [plaintiff] was not 'the 
- 16 -

right girl' for him"); Mackie v. Cnty. of Santa Cruz, 444 F. Supp. 

3d 1094, 1105-07 (N.D. Cal. 2020) (holding that plaintiffs had 

adequately pled a state-created danger claim where officer's 

interaction with plaintiffs' neighbor regarding plaintiffs' 

previous complaints about the neighbor left the neighbor "in an 

agitated state" and neighbor subsequently attacked plaintiffs); 

Lipman v. Budish, 974 F.3d 726, 746 (6th Cir. 2020) (interviewing 

abused child in front of possible abusers was affirmative act that 

could give rise to state-created danger claim); McClammy v. 

Halloran, No. CV-18-68-GF-BMM, 2019 WL 4674462, at *3 (D. Mont. 

2019) (holding that there was a genuine issue of material fact as 

to plaintiff's state-created danger claim where plaintiff argued 

officers had "increased her risk of harm by 'stoking [her abuser's] 

anger' during their investigation").

In these circumstances, it is fairer to all concerned to

remand to the district court in light of this opinion. This 

decision makes no new law and does not expand the state-created 

danger doctrine; it is simply a remand for consideration of the 

factors identified above. We make no factual findings, and our 

holding is based on legal error under Irish II. The district court 

may in its discretion permit additional discovery in light of the 

clarification provided by Irish II. The 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 
- 17 -

immunity inquiry before addressing whether Officer Dexter violated 

the plaintiffs' substantive due process rights under the statecreated danger doctrine. See Maldonado v. Fontanes, 568 F.3d 263, 

269-70 (1st Cir. 2009).

We also remand the Monell and Maine Civil Rights Act 

claims against Officer Dexter, which were resolved on the basis 

that such claims failed because there was no violation of the 

plaintiffs' substantive due process rights. 

IV. Conclusion

We vacate the grant of summary judgment as to the § 1983 

and Maine Civil Rights Act claims against Officer Dexter and the 

Monell claims against Police Chief Beaupre and the City of 

Biddeford and remand for further consideration in light of this 

opinion and Irish II. 

We affirm the grant of summary judgment as to the § 1983 

claims against Officer Wolterbeek and all other claims against the 

defendants. No costs awarded. See Fed. R. App. P. 39(a).

-Dissenting Opinion Follows-
- 18 -

KAYATTA, Circuit Judge, dissenting. A layperson reading 

the facts of this case as portrayed in the majority opinion could 

easily conclude that as a matter of good police practice, Officer 

Dexter should have arrested Pak for criminal threatening (assuming 

that he could discount Johnson's statement that he felt harassed, 

but not really threatened). See, e.g., Me. Stat. tit. 17-A, § 209 

(2021). And if the people of Maine wish to render law enforcement 

officers personally liable for failing to make arrests in 

situations like this one, they may so provide as a matter of state 

law. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 

189, 202 (1989) ("A State may, through its courts and legislatures, 

impose such affirmative duties of care and protection upon its 

agents as it wishes."). 

As the Supreme Court has made clear, however, an 

officer's failure to arrest does not violate the Due Process Clause 

of the Fourteenth Amendment to the United States Constitution. 

Id. at 196–97 ("If the Due Process Clause does not require the 

State to provide its citizens with particular protective services, 

it follows that the State cannot be held liable under the Clause 

for injuries that could have been averted had it chosen to provide 

them. As a general matter . . . we conclude that a State's failure 

to protect an individual against private violence simply does not 

constitute a violation of the Due Process Clause."). The Due 

Process Clause provides impediments to arrest; it does not 
- 19 -

encourage, much less require, arrests. Given the weight of 

precedent on this point, DeShaney's succinct summation must guide 

our holding in this case: "Because . . . the State had no 

constitutional duty to protect [the victim] against [another's] 

violence, its failure to do so -- though calamitous in hindsight 

-- simply does not constitute a violation of the Due Process 

Clause." Id. at 202.

By vacating the judgment, the majority suggests that 

perhaps a jury could hold Officer Dexter liable -- not for failing 

to arrest, but for affirmatively doing something that increased 

the likelihood that Pak would kill. But this "state-created 

danger" exception only works if what the officer did, other than 

failing to arrest Pak, is "so egregious, so outrageous, that it 

may fairly be said to shock the contemporary conscience." County 

of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1999). In Lewis, 

the officer deliberately, recklessly, and with "indifference to 

life" initiated a high-speed chase -- of up to 100 miles per hour 

-- in pursuit of two teenagers on a motorcycle who had committed 

only a speeding violation. Id. at 836, 837, 854. The officer 

followed so closely that it was impossible for him to stop safely, 

should the motorcycle he was chasing come to a halt. When the 

chased motorcycle tipped over, the officer hit and killed its 

sixteen-year-old passenger, all in assumed violation of sound law 

enforcement practice. Id. at 837, 854. The Supreme Court 
- 20 -

nevertheless found that the officer's conduct "[did] not shock the 

conscience." Id. at 855. 

The Court in Lewis "left open the possibility that 

unauthorized police behavior in other contexts might 'shock the 

conscience,'" Chavez v. Martinez, 538 U.S. 760, 774 (2003) (citing 

Lewis, 523 U.S. at 850). It gave two examples of such other 

contexts: First, the "shock the conscience" standard might be 

"satisfied where the conduct was 'intended to injure in some way 

unjustifiable by any government interest[.]'" Lewis, 523 U.S. at 

849—50. Second, "deliberate indifference" might in theory suffice 

to shock the conscience, when such indifference is "patently 

egregious." Id. at 850. And the Court has never suggested that 

failing to arrest can be rendered actionable simply by labeling 

such failure deliberate indifference. To conclude otherwise would 

be to overrule DeShaney. 

So what did Officer Dexter affirmatively do that was so 

egregious and outrageous as compared to the conduct found not to 

shock the conscience in Lewis? The answer is "nothing." There is 

no dispute as to the content of the conversations he had with 

either the victims or with the Paks, as those conversations were 

recorded. Officer Dexter listened patiently to the tenants and 

gave them common-sense advice about staying away from Pak for the 

evening if they could. And he spoke with Pak. Suffice it to say, 

he did not urge Pak to shoot anybody. To the contrary, Dexter 
- 21 -

repeatedly and firmly told Pak that violence and threats of 

violence were crimes and would lead to his arrest. Pak replied 

that he was "not going to shoot [Johnson]." The conversation ended 

with Officer Dexter repeating twice an admonishment for Pak to 

"keep [his] distance from [the tenants]," to which Pak replied

"[n]o, no you don't have to worry about that."

The majority points to the fact that Officer Dexter 

expressed some sympathy for Pak's complaints about his tenants. 

To be precise, what he did was play good-cop, bad-cop with Pak, 

expressing some sympathy regarding Pak's frustration that the 

tenants were in violation of their lease and that the eviction 

process was difficult, while admonishing Pak for his threats.

The majority also observes that Officer Dexter did not 

ask whether Pak had a gun. This is clear in the record. What is 

not clear is why the majority thinks it matters. Following my 

colleagues' reasoning, had the officer inquired about the presence 

of a firearm, he could now be said to have caused the tenants' 

deaths by reminding Pak that he did indeed have a gun. Of course, 

asking about the gun might have led the officer to make an arrest. 

But as explained above, the failure to arrest does not give rise 

to liability under federal law. 

Similarly, the majority comments that Officer Dexter did 

not ask Pak whether he had consumed any alcohol and did not conduct 

a field sobriety test. Although my colleagues make note of Officer 
- 22 -

Dexter's testimony that he was never within six feet of Pak and 

did not smell any alcohol, they fail to elucidate what affirmative 

duty Dexter was under to investigate Pak's alcohol consumption, 

especially when the "legal limit" for blood alcohol levels the 

majority cites applies to individuals operating motor vehicles in 

the state of Maine, rather than to individuals in their homes.

Officer Dexter's effort clearly did not work in this 

instance. Even if we assume that his intervention angered Pak 

further, however, I can still say with confidence that no 

reasonable person could possibly find that such actions as Officer 

Dexter undertook could shock anyone's conscience as that test is 

defined in Lewis. Lewis, 523 U.S. at 836, 849—51; id. at 855 

("Regardless whether [the officer's] behavior offended the 

reasonableness held up by tort law or the balance struck in law 

enforcement's own codes of sound practice, it does not shock the 

conscience, and petitioners are not called upon to answer for it 

under § 1983."). Indeed, if what Officer Dexter said to Pak could 

satisfy the "shock the conscience" standard, then it is fair to 

ask my colleagues a question that they cannot answer: Short of 

arresting Pak, what could the officer had said to him or done that 

could not now in hindsight equally be said to shock our 

consciences? Suppose, for example, that Officer Dexter had instead 

told Pak that he had no sympathy for Pak's complaints as a 
- 23 -

landlord. The officer might now be equally second-guessed by my 

colleagues for having worsened things by further provoking Pak.

Aside from detailing certain facts, such as Officer 

Dexter's failure to arrest, that could potentially support a 

negligence suit but not a federal claim, the majority never really 

says what specific facts might be found on remand and how those 

facts could change the result of the district court's opinion. To 

the contrary, my colleagues seem to hold their own opinion with 

pinched noses and at arm's length. So why remand a case that we 

already know can go nowhere under current legal standards, creating 

false hope for the plaintiffs? The majority cites two 

justifications.

First, the majority alleges that Irish v. Fowler, 979 

F.3d 65 (1st Cir. 2020) ("Irish II") supposedly "clarified this 

circuit's law." But the whole point of Irish II was that the law 

regarding the state-created danger doctrine was already so 

"clearly established" that qualified immunity was inapplicable. 

979 F.3d at 77—80 (describing as "simply incorrect" an assertion 

that the law of the state-created danger doctrine was not "clearly 

established").

Second, the majority notes that in describing the 

exception for state-created dangers, the district court asked 

whether Officer Dexter's actions "greatly increas[ed] the danger" 

rather than whether they "enhanc[ed] the danger." But this 
- 24 -

difference in terminology could only matter if a jury could 

reasonably find that Officer Dexter engaged in affirmative conduct 

that both enhanced the danger and was shocking to the conscience. 

And as I have explained, even the majority avoids saying that 

Dexter's conduct could be found to have shocked the conscience.

If, on remand, the district court reads the majority 

opinion carefully, it will note that the opinion does not actually 

preclude the district court from rewording its summary of the 

applicable enhancement standard and re-entering its order of 

dismissal. Should the district court so proceed, perhaps no great 

harm will be done, even if nothing is gained beyond a display of 

understandable sympathy for the victims. But there is a chance 

that courts -- including the district court -- will read the 

majority opinion otherwise. They might sensibly think that no 

appellate court would remand this case unless, on the present 

record, it thought that a judgment for plaintiffs was somehow 

possible. And litigants or potential litigants in other cases in 

which officers fail to arrest someone will cite this case as 

watering down the "shock the conscience" test to a form of relabeled negligence.

Such an outcome is contrary to existing law. As the 

Supreme Court said in DeShaney: "The most that can be said of the 

state functionaries in this case is that they stood by and did 

nothing when suspicious circumstances dictated a more active role 
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for them. In defense of them it must also be said that had they 

moved too soon to [act], they likely would have been met with 

charges of improper [behavior], charges based on the same Due 

Process Clause that forms the basis for the present charge of 

failure to provide adequate protection." DeShaney, 489 U.S. at 

203. The same point applies here.

I must therefore respectfully dissent. Officer Dexter 

took no affirmative act that could conceivably be said to shock 

the conscience as that standard is defined in Lewis. And whether 

he should be held personally liable for not doing more is not a 

concern of the Due Process Clause.