Court Considers State-Created Danger Exception in Deadly Landlord-Tenant Dispute

by | September 28, 2021

Welch v. City of Biddeford Police Department, 2021 WL 3828367 (1st Cir. 2021)

This case presents the type of conundrum that may lurk behind a claim of “state-created danger.” The state-created danger doctrine allows an officer to be held liable for injuries or deaths that occur because of a danger the officer “created” by an act or failure to act when the officer knew or should have known action or non-action would bring obvious danger and harm to a person.

In DeShaney v. Winnebago County Department of Social Services (489 U.S. 189 (1989)), the Supreme Court held that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” However, the Supreme Court left two paths open to sue government officials for failing to protect in some way. First, if the official creates a “special relationship,” generally by taking custody of a person in an arrest, a civil commitment or some “other similar restraint of personal liberty,” and harm follows, the official may be liable. The second path is the state-created danger theory that lies at the heart of this case.

Jocelyne Welch, Susan Johnson, and Derrick Thompson called the police to report their landlord James Pak, who lived in a house attached to their apartment, had just made death threats to them. Pak and the tenants were disputing parking rights in the driveway. Two officers arrived at the scene and, a few minutes later, the first officer told the backup officer he could leave.

The officer learned Pak had told Welch, Johnson and Thompson that he had a gun, would shoot them and would bury Thompson in the snow. When the officer then went to speak with Pak, he angrily began to describe what he was going to do to “get his name in the newspaper” but stopped, saying he did not want to reveal those plans to the officer. Pak then screamed at the officer, saying he had “nothing to lose,” “you’re going to see me in the newspaper tomorrow,” and that there would be a “bloody mess.”

The officer expressed sympathy for Pak’s perception that he had limited rights as a landlord. He told Pak that “tenants in this state have so many rights,” and said several times he “understood” or “felt sorry” for Pak. The officer didn’t ask Pak about a gun, but he did warn Pak that the parking issue was a civil matter and Pak could not make death threats. Pak raised his voice, screaming and yelling. When Pak screamed that the officer “did not understand Pak’s situation,” the officer said, “Okay, I’m going to go now.”

While doing nothing can be an important de-escalation tactic, officers must also carefully consider whether their actions or omissions will put the complaining party in a worse situation than before.

The officer left after telling the complainants to stay away from Pak. Pak retrieved his gun and entered his tenants’ apartment. He shot Johnson twice, wounding her, then fatally shot Thompson and Welch.

The trial court granted summary judgment to the officers. The appellate court remanded the case with instructions for the trial court consider its holding in Irish v. Fowler (979 F.3d 65 (1st Cir. 2020)), a decision interpreting the state-created danger doctrine. The appellate court opined the plaintiffs might raise a valid 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.

A dissenting judge observed, “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.” The dissent argued the “’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 (1998)). The dissent opined that no matter what one thinks of the officer’s action, the officer “took no affirmative act that could conceivably be said to shock the conscience as that standard is defined in Lewis.”

The case returns to the trial court, where it is likely to wind its way back for further appellate consideration. The takeaway for officers reading about this tragic situation: While doing nothing can be an important de-escalation tactic, officers must also carefully consider whether their actions or omissions will put the complaining party in a worse situation than before.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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