A federal appeals court has revived a lawsuit that was filed against Biddeford police after a landlord shot and killed two tenants minutes after officers left the scene.
A judge in U.S. District Court in Maine decided last year that the officers should not be held civilly liable for the deaths because they did not greatly increase the risk of danger to the victims that day. He dismissed the lawsuit, and the plaintiffs appealed. The 1st Circuit Court in Boston decided Thursday that the judge should reconsider that decision in light of a more recent ruling that recognized a potential limit to qualified immunity for police officers.
The appeal court’s opinion didn’t decide the lawsuit, but it gave Susan Stevens and Jocelyne Welch another chance to pursue their case.
“Sue and Jocelyne have been waiting patiently for their day in court to hold the Biddeford police department accountable for its role in the horrific tragedy that tore their families apart,” Kristine Hanly, their attorney, wrote in an email. “We are heartened by the First Circuit’s opinion which brings them one step closer to that goal.”
One of the city’s lawyers said he felt “very confident” that Biddeford could win a dismissal a second time.
“It is unfortunate that this tragic incident has to be prolonged but it remains very clear that the individual officer as well as the department and chief should not be held liable,” attorney Douglas Louison wrote in an email.
James Pak, now 83, is serving a life sentence for the December 2012 murders of Derrick Thompson, 19, and his girlfriend, Alivia Welch, 18. Pak also shot Thompson’s mother, Susan Stevens, but she survived the attack.
Derrick Thompson and Alivia Welch
Derrick Thompson called police on Dec. 29, 2012, to report that his landlord was making threats against the tenants. Officers came to the apartment building and spoke with Pak, but they never asked Pak if he had a gun and they left when they decided the dispute was a civil matter. Within minutes, Pak entered the apartment with a gun and shot the three residents.
The victims’ mothers later filed separate wrongful death lawsuits. They argued the officers did not do enough to address Pak’s threats right before the shooting. Their two cases later merged. The defendants are the city of Biddeford and its police department, Police Chief Roger Beaupre and the two individual officers who responded that day.
District Judge Jon Levy dismissed the case in April 2020. Seven months later, in November 2020, the 1st Circuit issued an opinion in another case from Maine. A woman sued the Maine State Police for failing to protect her from a former boyfriend who went on a shooting rampage after she reported he raped her. The lower court decided qualified immunity protected the troopers from her lawsuit, but the 1st Circuit disagreed and allowed the case to continue.
In that decision, the appellate judges officially recognized what is called “state-created danger,” a legal doctrine that had also been adopted by other federal courts. The idea is that a police officer can violate a person’s constitutional rights by acting in a way that creates or increases the harm to that person. And an officer who has violated someone’s constitutional rights might not be entitled to qualified immunity, which can protect law enforcement from liability from civil claims.
The state has petitioned the U.S. Supreme Court for review of that decision, but the court has not yet decided whether to do so.
Because of that ruling, the Biddeford case is now focused on whether Officer Edward Dexter increased the danger when he spoke to Pak at the apartment building before the shooting. The mothers’ attorney argued that Pak became more agitated during their conversation, and the officer could have taken other steps to intervene. The city’s attorney argued that the officer spent time trying to calm Pak down, and Pak told the officer not to worry before they parted ways.
The 1st Circuit agreed that the claims against a different officer should be dismissed because he was not directly involved in the response that day. But the court said Levy should take another look at the case against Dexter, as well as the city and the police chief, with the benefit of their recent ruling on state-created danger.
“In these circumstances, it is fairer to all concerned to remand to the district court in light of this opinion,” Circuit Judge Sandra Lynch wrote in the 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.”
On the panel of three judges, one disagreed. Circuit Judge William Kayatta said he did not believe Dexter did anything that was so shocking as to fall under the “state-created danger” doctrine, so the 1st Circuit should have simply agreed with the lower court. His dissent stresses that the 1st Circuit did not guarantee the plaintiffs a victory at the lower court.
“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,” Kayatta wrote. “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.”
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