Appeals Court Strips Immunity From Detectives Who Turned A Rape Report Into 18 Hours Of Terror For The Victim
from the blood-on-their-hands dept
This recent decision [PDF] by the First Circuit Court of Appeals details a law enforcement enabled nightmare — one that saw the plaintiff shot by the same person who had raped her earlier… and someone the police were supposed to be trying to locate. So much for the “Thin Blue Line.” The line never materialized here and, in fact, took affirmative steps to erase what little line there actually was.
There’s a lot to take in here. It goes from horrific to terrifying to cataclysmic in a hurry. And, according to these allegations — supported by officers’ own statements and reports — the detectives handling the case seemingly went out of their way to make things worse for the woman reporting a rape.
Here’s how it starts. And it’s hard to believe it gets worse from here. But it does.
At approximately 11:13 AM on July 15, 2015, Britany Irish reported to the Bangor Police Department that Anthony Lord, a former lover, had kidnapped and raped her repeatedly on the night of July 14, including at two vacant camps near Benedicta, Maine. The Bangor Police Department referred her to the MSP. MSP Sergeant Darrin Crane assigned Detectives Perkins and Fowler to the case and told the detectives that Lord was a registered sex offender. Around 2:00 PM, Sergeant Crane forwarded the detectives a copy of Brittany Irish’s statement to the Bangor Police Department. The statement said that Lord had threatened to “cut her from ear to ear.”
Irish met with detectives twice more that day. At a 3:05 meeting, she told the detectives she feared Anthony Lord would become violent if he found out she had spoken to police. The detectives agreed, telling her not to let Lord know she had spoken with them, asking her to avoid talking about it if she happened to speak to Lord again. She also told them she had moved her kids to her boyfriend’s mother’s house in another town for their safety.
The detectives followed up on her statement and found evidence of the rape at one of the sites she had mentioned. She gave the officers another statement the next day, introducing more evidence of Lord’s violence and violent threats.
On July 16, Irish made a second written statement to the detectives which said that Lord had threated to “cut [her] from ear to ear,” to abduct Irish’s children, to abduct and “torture” Hewitt to find out “the truth” about what was happening between Irish and Hewitt, to kill Hewitt if Hewitt was romantically involved with Irish, and to weigh down and throw Irish into a lake.
You’d think this would have spurred officers into action and perhaps motivate them to protect Irish until Lord could be located. Nothing could be further from the unfortunate truth.
Despite these repeated death and other threats and their knowledge that Lord was a registered sex offender, the defendants did not, as was customary, check the sex offender registry to find Lord’s address or run a criminal background check. Such searches would have revealed that he was on probation and had an extensive record of sexual and domestic violence. The detectives did not contact Lord’s probation officer at this time or request a probation hold, which could have been used to detain Lord and is simpler to obtain than an arrest warrant.
Then, despite telling Irish to avoid mentioning her meeting with police, the detectives took it upon themselves to notify the rapist of this fact.
At 6:17 PM on July 16, Detective Perkins called Lord while Detective Fowler listened. When Lord did not answer, Detective Perkins did not hang up. Rather, he left a voicemail for Lord on his cellphone. In that voicemail, Detective Perkins identified himself as a state police detective and asked Lord to return his call. Detective Perkins did not ask Lord to come meet with him. At that point, the defendants had made no effort to locate Lord, much less to apprehend him.
In court, Detective Perkins admitted it would be “logical” for Lord to assume Irish had told them about the rape and kidnapping. Why this assumption wasn’t made until the detective was sued was left unexplained.
Things began moving quickly. There wasn’t much activity by the law enforcement officers, but Anthony Lord was plenty busy.
At 8:05 PM on July 16 — about an hour and forty-five minutes after he had left the voicemail — Detective Perkins received notice of a “possible suspicious” fire in Benedicta, the town where the detectives had found evidence that Lord had raped Irish at a vacant camp. Believing that Lord may have set the fire, the detectives drove to the site of the fire. At 9:24 PM, Brittany Irish called the detectives and told them it was her parents’ barn, roughly fifteen feet from their home, which was on fire. Irish also told the detectives that someone had heard Lord say as he left his uncle’s house (in Crystal, Maine) earlier that evening that “I am going to kill a fucker.” Irish told the detectives that she was afraid for her children’s safety, planned to stay at her mother’s home in Benedicta, and would meet the detectives there.
It wasn’t until after 10 pm — four hours after the detectives had let Lord know cops were looking for him — that the officers actually began looking for him. A bulletin was put out to “stop and hold” Lord if an officer happened to come across him. The bulletin contained a warning that Lord might be dangerous.
Some help eventually arrived. But it was late and not that much help.
Around 10:35 PM, Sergeant Crane sent two MSP troopers to Lord’s mother’s house in Houlton, Maine, which is about forty miles from Benedicta. Those officers did not call Lord’s mother’s house but chose to drive there. There is no evidence that these officers ever left Houlton or came to Benedicta to help look for Lord.
There was more escalation.
Shortly thereafter, Irish received a phone call from her brother, who told her that Lord, upon receiving the voicemail, was irate and said that “someone’s gonna die tonight.” Irish immediately told the detectives about this death threat and asked for protection.
Thin blue line extra thin rn
The officers left the scene and no officer remained to protect her and the others.
Another hour passed before anyone pulled up Lord’s criminal record or checked in with his probation officer for Lord’s possible whereabouts.
Another plea for help was made.
Around midnight, Brittany Irish contacted Detective Perkins and asked again for an officer to come to her mother’s residence. Detective Perkins understood that she wished for an officer to protect her and her family in the event that Lord returned to her mother’s house.
And, again, no one helped.
Detective Perkins did not relay the request to his superior at this time, and no officers were sent there.
Instead, more time was wasted by trained professionals.
At 12:30 AM on July 17, four officers, including Crane, Fowler, and Perkins, went to Lord’s uncle’s house in Crystal, Maine, about twenty miles from Benedicta, to look for Lord. They did so despite having been told that Lord had left his uncle’s house earlier that evening and their suspicions Lord had set the fire in Benedicta. No explanation was given for why they did not call the uncle to see if Lord was there.
At about 1:00 AM, Crane, Fowler, and Perkins met in a parking lot in Crystal, where Detective Perkins finally told Sergeant Crane about Irish’s request for protection. Sergeant Crane told the detectives he would not provide protection to the plaintiffs because they did not have “the manpower.” The detectives did not tell Irish about this decision until an hour later. They had three hours earlier, however, alerted all officers to the fact that Lord was considered dangerous.
At about the same time as this parking lot meeting, Detective Perkins requested that the Bangor Police Department send an officer to Acadia Hospital in Bangor to look for Lord. The request was not that the officer simply call the hospital to find out if Lord was there. There is no evidence as to whether the state police could have requested the Bangor police to provide protection to Irish.
Also around 2:00 AM, Detectives Perkins and Fowler met Detective Jonah O’Rourke and Detective Trooper Corey Hafford at a gas station in Sherman, Maine, about ten miles from the Irish home, to search the dumpster for evidence of the original rape. Not one of these four officers was sent to protect Irish at her mother’s home.
Having failed to locate Lord or protect Irish, the officers decided to call it a night.
Sergeant Crane admitted that he did not believe there were any state police resources in the area between 3:00 and 4:00 AM. No one told the plaintiffs that the detectives, let alone all police units, had left the area.
Her mother called the State Police and was lied to.
Around 3:00 or 4:00 AM, Kimberly Irish, Brittany Irish’s mother, contacted the MSP through their “800 number.” She said that she would like to come with Brittany and Hewitt in her car to the MSP parking lot to remain there overnight for protection. An unidentified MSP employee advised her not to come to the station, that leaving her house “would be a dangerous mistake,” and that the MSP had “officers in the vicinity” who could respond quickly to any problems that arose. A jury could find that these statements were not true, and that each piece of that advice was relied on by the plaintiffs and increased the risk to them. Kimberly Irish never saw any police presence near her residence, despite keeping watch through the night.
Less than an hour later, Anthony Lord attacked a man and stole his truck and guns. He arrived at the house Irish was staying in and attempted to follow through with his threats — the same threats Irish had twice reported to law enforcement.
Lord fired one round with Mayo’s shotgun at the front door to break the lock, which hit Brittany Irish in the arm. The door remained locked, so Lord kicked down the door. Lord entered the house, saw Hewitt [Irish’s boyfriend] on the couch, and shot Hewitt nine times while Brittany Irish watched. Brittany ran from the room and into the bathroom to hide.
With the help of her mother (Kimberly), Brittany escaped the house. During this escape, her mother was shot in the arm. The terror did not end there.
Moments later, Brittany Irish was able to jump into the truck of Carleton Eddy, a passing motorist. Lord saw her get into the truck and managed to jump into the bed of the truck as Eddy began to pull away. From the bed of the truck, Lord shot Eddy three times in the neck and then pulled Brittany out of the truck and took her back to the pickup truck he had stolen from Mayo. They drove away. The police did not free Irish or apprehend Lord until around 2:00 PM on July 17, about nine hours after the shooting.
This footnote adds even more horror.
Around 6:20 AM, Lord and Irish arrived at a woodlot in Lee, Maine. Lord and Irish encountered Kevin Tozier and Clayton McCarthy, and Lord asked them if he could borrow one of their cellphones. One of the men lent his cellphone to Lord. Tozier noticed Irish’s wound and asked about it. Lord responded by fatally shooting Tozier in the chest several times. As McCarthy ran away, Lord shot him too.
So does this one:
Lord then stole a pulp truck, abandoned it in Haynesville, Maine, stole an ATV, and travelled with Irish to Weston, Maine. In Weston, he stole a Ford F-150 truck and drove to Houlton. At some point during this flight, Lord raped Irish again. The police finally apprehended Lord around 2:00 PM when his uncle reported that Lord was in Houlton.
With a bunch of people dead or wounded and the suspect in custody, the police finally decided something needed protection: the evidence.
Only after Lord’s capture did the MSP post an officer at the Irish home. They did so for two days to protect the crime scene.
Unbelievably, the district court found plenty of settled law and still decided the law was unsettled. It granted the officers qualified immunity, claiming there was no clearly established precedent that might have clued officers in that this sort of shitshow might violate rights and harm people officers are supposed to care about protecting.
As to qualified immunity, the court reasoned that the existence of the state-created danger doctrine was not clearly settled law in the First Circuit because this court had never found the theory applicable to the specific facts presented by the case before it. Recognizing that a consensus of persuasive authority from other circuits was sufficient to clearly establish the doctrine, it nevertheless declined to hold that the doctrine was clearly established.
The detectives argued no circuit precedent “warned” them that acting irresponsibly and recklessly while handling an investigation of a violent criminal would result in them being successfully sued. Wrong, says the First Circuit. There is precedent.
The officers argue that because the Fifth and Eleventh Circuits have rejected the state-created danger doctrine, the doctrine cannot be clearly established. Again, as a proposition of law this is wrong. A circuit split does not foreclose a holding that the law was clearly established, as long as the defendants could not reasonably believe that we would follow the minority approach. After Rivera, the defendants could not reasonably have believed that we would flatly refuse to apply the state-created danger doctrine to an appropriate set of facts.
Rivera warned that if an officer performed a non-essential affirmative act which enhanced a danger, a sufficient causal connection existed between that act and the plaintiff’s harm, and the officer’s actions shocked the conscience, the officer could be held liable for placing a witness or victim in harm’s way during an investigation.
The court goes on to point out the detectives’ arguments are wrong in more than one way.
Defendants also argue that they are immune from suit because no factually similar cases alerted them that their conduct was impermissible. This too is incorrect. As we have just said, a general proposition of law may clearly establish the violative nature of a defendant’s actions, especially when the violation is egregious. […] Not only is the argument wrong, but its premise is wrong; there are factually similar earlier cases.
The earlier cases are directly on point.
These cases gave the defendants notice that they could be held liable for violating the Due Process Clause if, after receiving a report of criminal activity, they effectively alerted the suspect that he was under investigation in a manner that notified the suspect who the reporting individual was, despite knowing that the suspect was likely to become violent toward that person. Monfils, 165 F.3d at 513-18. The officers were also on notice that failing to take steps to mitigate the danger they had created and misleading the victim about the level of police protection she had could likewise give rise to a constitutional violation under the state-created danger doctrine. Kennedy, 493 F.3d at 1063-65.
This will go back to the lower court, in front of a jury, with no qualified immunity shield to deflect culpability. Presumably jurors will be far more “reasonable” than these law enforcement officers were during their handling of Irish’s rape allegations.
On this record, a reasonable jury could conclude that as much occurred here. The plaintiffs allege that the defendants, even in the face of Irish’s expressed fear that Lord would react violently, contacted him in a manner that a reasonable jury could find notified him that Irish had reported him to the police. The plaintiffs also allege that the defendants failed to convey her request for protection to their superiors for several hours and further failed to inform her in a timely fashion that the request had been denied. A jury could also conclude that the defendants played a role in the decision to withdraw all resources from the area without telling the plaintiffs that they had done so, thereby allowing the plaintiffs to believe more protection was available than was actually true. Finally, the defendants’ apparent utter disregard for police procedure could contribute to a jury’s conclusion that the defendants conducted themselves in a manner that was deliberately indifferent to the danger they knowingly created, and that they thereby acted with the requisite mental state to fall within the ambit of the many cases holding that a violation of the Due Process Clause requires behavior that “shocks the conscience.”
It’s the last part of the paragraph that should sting the most: “apparent utter disregard for police procedure.” This is their job. It’s what they’re supposed to do. And when someone came to them for help and relied on their expertise and knowledge, they did more than let her down. They put her in harms’ way. Repeatedly. When most people suck at their job, they inconvenience employers or customers. When cops suck, people die.