No. 23-1399

SUSAN JOHNSON, individually and on behalf of her minor son B.L. and on behalf of Derrick Thompson, deceased; JOCELYNE WELCH, as personal representative of the Estate of Alivia Welch,

Plaintiffs, Appellants,

v.

CITY OF BIDDEFORD; ROGER P. BEAPURE, individually and as Chief of Biddeford Police Department; EDWARD DEXTER, individually and as an employee of the Biddeford Police Department,

Defendants, Appellees,

CITY OF BIDDEFORD POLICE DEPARTMENT; MAINE DEPARTMENT OF PUBLIC SAFETY; JOHN E. MORRIS, individually and as the Commissioner of the Maine Department of Public Safety; JACOB WOLTERBEEK, individually and as an employee of the Biddeford Police Department; JANE DOES,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

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

Before

Montecalvo, Lynch, and Rikelman, Circuit Judges.

Kristine C. Hanley, with whom Garmey Law was on brief, for appellants. Joseph A. Padolsky, with whom Douglas I. Louison and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellees.

February 13, 2024 LYNCH, Circuit Judge. The district court, on remand from this court's reinstating the case and vacating the judgment earlier entered for the defendants, entered summary judgment on different grounds for defendant police officers and City of Biddeford, Maine. See Johnson v. City of Biddeford, 665 F. Supp. 3d 82, 89-91 (D. Me. 2023). The key issue on appeal is whether judgment for Officer Edward Dexter was correctly entered on grounds of qualified immunity against the appellants' claim of violation of substantive due process rights under the enhancement-of-danger prong of the state-created danger test as articulated by this court in Irish v. Fowler, 979 F.3d 65, 75 (1st Cir. 2020).

We affirm, holding a reasonable officer in Dexter's position would not have understood, on the facts here, that he was by his actions and inactions violating any such rights.

I.

"As the district court resolved this case at the summary judgment stage, we rehearse the facts in the light most agreeable to the nonmovant (here, the [appellants]), consistent with record support." DePoutot v. Raffaelly, 424 F.3d 112, 114 (1st Cir. 2005).

Susan Johnson and Derrick Thompson, mother and son, leased an apartment from landlords James Pak ("Pak") and Armit

- 3 - Pak, which was attached to the Paks' residence in Biddeford. On December 29, 2012, Thompson was outside shoveling snow when Pak came outside and began arguing with him that there were more cars parked in the driveway than was permitted under the rental agreement. During the argument, Pak made gun-shaped hand gestures and said "bang." Johnson, who had videotaped a portion of the argument on her smartphone, directed Thompson to call the police, which Thompson did. Thompson told the dispatcher that his landlord was "freaking out," was making death threats, and had made gestures toward him in the shape of a gun. Thompson, Johnson, and Alivia Welch, Johnson's girlfriend, waited inside the apartment for the police to arrive.

Biddeford Police Officer Edward Dexter responded to the call. Officer Dexter had a WatchGuard recording system which audio recorded his interactions throughout the encounter with the appellants and the Paks.1 Officer Dexter entered Thompson and Johnson's apartment and began talking with Johnson, Thompson,