Federal appeals court reconsiders mothers’ wrongful death suit against Biddeford police

Susan Johnson, left, mother of Derrick Thompson, and Jocelyne Welch, mother of Alivia Welch, outside of the federal courthouse in Portland in 2019 after a hearing in their wrongful death suit against the city of Biddeford. Brianna Soukup/Staff Photographer

A federal appeals court is again considering whether to revive a wrongful death lawsuit filed against Biddeford police after a landlord shot and killed a young couple in 2012.

Susan Johnson and Jocelyn Welch are suing the city of Biddeford, the police chief and officer Edward Dexter, alleging Dexter’s actions pushed James Pak to kill Johnson’s 19-year-old son Derrick Thompson and Welch’s 18-year-old daughter Alivia Welch in 2012.

Derrick Thompson and Alivia Welch

Johnson, whose last name is now Stevens, survived gunshots to her back and arm. She and Welch filed lawsuits independently in 2017 before merging their complaints.

But their case has been dismissed twice by a U.S. District Court judge who said the officer was protected by qualified immunity, a complex legal doctrine often used to shield police and other public employees from lawsuits.

The case is now back before the 1st Circuit Court of Appeals in Boston, which heard oral arguments last Wednesday.

STATE-CREATED DANGER

U.S. District Judge Jon Levy first dismissed their case in 2020 based on the qualified immunity argument. The women appealed and the 1st Circuit ordered him to reconsider the case in light of a 2020 decision that created an exception to qualified immunity for “state-created danger.”

Johnson and Welch have argued that police made a dangerous situation even worse by agitating Pak, failing to consider whether he was armed or mentally unwell, and by misleading Johnson’s family about the risk they faced.

Biddeford police responded to Johnson’s apartment in Biddeford in December 2012. Derrick Thompson told a 911 dispatcher that Pak was threatening him after they argued about the number of cars the tenants were allowed to park in the driveway. He said Pak made threatening hand gestures at Thompson in the shape of a gun.

James Pak walks into the courtroom during his sentencing in February 2016. Whitney Hayward/Staff Photographer

When Dexter arrived and spoke with Pak, the landlord made a number of violent threats against his tenants, which were all recorded via police-worn body cameras, according to court records. At one point, Pak told Dexter “you’re going to see me in the newspaper.”

After Dexter told Pak he didn’t want to see that, Pak told the officer “he had nothing to lose” and that there was going to be a “bloody mess.”

When Dexter left the property, he suggested that the tenants stay away from Pak, but told them the dispute was ultimately a civil one that he had no control over. Minutes later, Pak walked into the Thompson’s apartment and shot them.

When Levy heard the case again last March, he agreed the women have enough evidence to argue in trial that Dexter made a dangerous situation worse, but he still dismissed the case. He said that Dexter wouldn’t have been aware of a state-created danger standard in 2012 because there wasn’t any legal precedent to put Dexter or his department on notice.

Now, in order to win their appeal again and finally proceed to trial after seven years, Johnson and Welch must prove to the 1st Circuit that Dexter’s actions were so egregious he didn’t need a legal decision to be aware.

THE ARGUMENTS

During oral arguments last Wednesday, Johnson and Welch’s attorney, Kristine Hanly, said this case was similar to a 2020 decision where the court ruled Maine State Police failed to protect two women.

Brittany and Kimberly Irish alleged state police officers failed to protect them from Anthony Lord after police called Lord during an investigation to tell him about allegations that he had kidnapped and sexually assaulted Brittany Irish two days before. Lord shot and killed Brittany’s boyfriend and two others after police called him.

The appeals court ruled in the Irish case that state police were not protected under qualified immunity and that their actions amounted to state-created danger. Brittany and Kimberly Irish in 2022 entered a $500,000 settlement agreement with the state.

Hanly argued that the appeals court should issue a similar finding against Dexter.

“In this case, we have an officer standing face to face with the person who is saying they are going to commit the crime, and still not following the policy that they should follow to reduce the agitation or reduce the harm completely,” Hanly told the court last week.

She also referred to a pair of decisions from the 9th Circuit Court of Appeals in San Francisco, where the justices agreed there was evidence of state-created danger and officers could not qualify for immunity. In both situations, that appeals court ruled the officers did not need to know of any earlier cases to be aware their actions were bad.

Joseph Padolsky, an attorney representing Dexter and the city, said last Wednesday that the Irish case and Johnson’s were not similar and that Dexter’s actions weren’t as egregious as those of the officers in the Irish case.

“It’s not the same argument,” Padolsky told the court. “There are two different arguments.”

The appeals court has no timeline for when it will issue their decision.

Pak, 86, pleaded guilty to two counts of murder and was given two life sentences in 2016. He is incarcerated at the Mountain View Correctional Facility in Charleston, according to the Maine Department of Corrections.