NICASTRO LAW, L.L.C.

12/14/2023

Great Decision out of Nebraska in Will contest probate case.

Prior Invalid Will May Be Introduced as Evidence in Determining Viability of Later Will (Neb.)

Rita Walker died on September 26, 2021. Her son, Mark, later filed to probate a will that Rita had signed on September 15, 2021. His brother, Michael, objected, arguing that the will was the product of undue influence and that Rita lacked testamentary capacity. At trial, Mark introduced a will signed by Rita in February 2016. This document had substantially the same provisions as the 2021 will but was not executed properly and was not valid as a testamentary document. Michael objected to the introduction of the 2016 document, arguing that it was hearsay and irrelevant. The court agreed and did not consider the 2016 document. It found that Rita lacked testamentary capacity and that the 2021 will was the product of undue influence. It opened an intestate estate for Rita, naming Michael as personal representative.

Mark appealed, arguing that the 2016 document was not hearsay because it was offered as evidence of the consistency of Rita's wishes. Nebraska case law clearly establishes that a prior will can be offered into evidence to rebut claims of undue influence. The court found that, although hearsay, the prior will was admissible for purposes of proving Rita's thoughts and mindset. The court further determined that the 2016 document was relevant because the bar for relevance is relatively low — does the evidence make any necessary fact to the question before the court more or less probable? The 2016 document could make the likelihood of undue influence less probable, and therefore, it should have been admitted and considered by the court. The decision of the lower court was reversed and remanded for reconsideration.
ESTATE OF WALKER, 2023 WL 8287947 (NEB. DECEMBER 1,

12/25/2021

Happy Holidays from Boston to all our friends! Have a wonderful new year!!!

01/13/2021

Jury trials have started back up this week for state courts. Here is an article on of first week of jury trials from Lawyers Weekly:

"While the numbers may not be what litigators want to hear, the first jury trials in state court since the pandemic hit have received positive reviews from both the judges and attorneys who participated.

“The process was flawless,” said Judge John F. Coffey who presided over the drunken-driving case Commonwealth v. Jones on Jan. 12 in Lowell District Court. “There were no breakdowns, and all the jurors felt safe.”

That same day, Hanover criminal defense attorney James M. Milligan Jr. obtained not-guilty verdicts for his client, Frank Willey, in another drunken-driving case heard by a jury in Plymouth District Court.

Milligan said he gave “a lot of credit” to Judge James M. Sullivan, the court officers, the clerk’s office and maintenance staff.

“[The trial] was about as seamless as it could have gone,” he noted.

Like Milligan, Chelmsford attorney Robert W. Normandin, who represented the defendant in Jones, had nothing but high praise for the staff at Lowell District Court in ensuring a safe and efficient process.

“The facilities people at the Lowell Judicial Center and court officers did an amazing job,” Normandin said. “Everybody that came into the building felt safe. There was plenty of Plexiglas and plenty of sanitizing of the witness box.”

Welcome relief

Phase 1 of the plan for resuming jury trials in state courts, which involves conducting a limited number of trials with six-person juries in a limited number of courthouses, began Jan. 11 as scheduled. That was welcome relief as the Trial Court originally targeted Oct. 23 for the startup, before delaying its plans until the week of Nov. 30 and then once more to January.

The commencement of Phase 1 began paying immediate dividends in terms of resolving the backlog of both civil and criminal cases created by the pandemic’s disruption of court operations.

According to the Trial Court, there were four civil cases scheduled to be heard by juries in Middles*x Superior Court in Woburn during the opening week of Phase 1. With those trial dates looming, the court reported that each of the civil cases settled the first week in January.

Judge Sullivan said that the preparation by court personnel was critical in how smoothly the jury trial in his courtroom proceeded.

“It went far smoother than anyone expected, including myself,” Sullivan said.

Because of space concerns, jury empanelment in Commonwealth v. Willey was conducted in the jury pool room, he said.

“It’s set up to hold between 80 and 100 people,” Sullivan said. “What we did was break it up and space it out to do the voir dire of a dozen or so jurors at a time.”

General voir dire was conducted in an open room with Plexiglas partitions between trial participants and jurors, Sullivan said, adding that individual voir dire was held in an alcove partitioned off of the jury room.

A Middles*x Superior Court jury box designed to allow social distancing
A Middles*x Superior Court jury box designed to allow social distancing

“We were able to empanel a jury out of the very first group of jurors, which was a very, very pleasant surprise,” the judge said. “A lot of that was due to the questionnaires and summonses that were sent out, which gave jurors the ability to opt out. The jurors that showed up were not looking to get out of jury duty. They were ready, willing and able.”

Judge Coffey said that the process for jury empanelment in the case he presided over took only a little longer than a normal jury trial, and that 40 people showed up for jury duty.

“We did half of [the empanelment] in the jury pool room so that we didn’t have the whole ve**re up in the courtroom,” Coffey said.

Normandin agreed that the empanelment process worked remarkably well.

“We had two sets of voir dire questions,” he said. “There were the standard OUI-type questions and a second set of questions aimed at COVID-type issues. That piece of it went very well.”

Milligan said he found that sidebars were not an issue.

“We did sidebar conferences as we normally would — up at the judge’s bench,” Milligan said. “We just maintained our distance.”

He said trial participants had to be more conscious of keeping their voices up because of their masks.

“Nobody was allowed to remove their mask,” Milligan said. “A little bit is lost in terms of the ‘theatrics’ of a trial, particularly for lawyers who are animated in making a point. You don’t get to see that smirk. More importantly, it’s harder to see a juror’s reaction to a question, whether they’re smiling or look perplexed.”

Likewise, Normandin said the wearing of facemasks generally wasn’t a problem, though it was at times difficult to understand prospective jurors during the voir dire portion of empanelment due to both the masks and the Plexiglas barriers.

Judge Coffey noted that there was only one witness called in Jones, a police officer who removed her facemask in the witness box.

“She was surrounded by Plexiglas,” Coffey said. “After she took off her mask, she put on a face shield just to make everyone more comfortable. So everybody could see her face and expressions.”

The judge added that the new courthouse in Lowell has upgraded technology that allows jurors to view evidence such as photographs via an overhead projector.

“We had four photographs introduced into evidence, and with the overhead the jurors didn’t have to touch the photographs,” Coffey said

Persistent concerns

But despite the smooth process, Normandin said he worries that persistent fears over the COVID virus could skew the makeup of the jury pool and prevent the empanelment of juries that represent a fair cross-section of the community.

“A lot of the people that we would want to have in a jury trial are not coming in because of their COVID fears.”

— Robert W. Normandin, Chelmsford

“The end result is that I am very concerned about jury trials at this stage,” said Normandin, whose client was found guilty on an OUI charge. “It is not about the safety once you get into the building; it’s about the pre-screening and those people who are willing to go into the building. A lot of the people that we would want to have in a jury trial are not coming in because of their COVID fears.”

Normandin said he was “shocked” by the guilty verdict in his client’s case.

“This was a case that I was confident that the jury would return a not-guilty verdict in a very short period of time,” he said. “Here, it was an hour-and-a-half deliberation.”

Some criminal defense attorneys anxious for a jury to hear a client’s case have other concerns.

Brookline attorney Frances I. Tucker said she recently had a jury trial scheduled for Jan. 26 that was canceled with no reason given. The case was to be heard in the West Roxbury Division of Boston Municipal Court, but the clerk-magistrate told her there would be no jury trials in West Roxbury during the month of January. Tucker said the assistant district attorney in her client’s case has since agreed to continue the matter until mid-March.

“I don’t know if conditions are going to be that much better in the courts in mid-March,” Tucker said.

Because the trial date had been set in September, Tucker said she had been reasonably hopeful that the case would go before a jury as scheduled on Jan. 26.

“It’s not the first time the case had been put over,” she said. “The case is well over a year old.”

The defense attorney surmised that the cancellation was due to West Roxbury not being one of the courts included in the Trial Court’s Phase 1 reopening plans.

“I don’t know when they are planning new trials,” Tucker said."

While the numbers may not be what litigators want to hear, the first jury trials in state court since the pandemic hit have received positive reviews from both the judges and attorneys who particip…

12/31/2020

This is a good result for the disabled elderly tenant, though it took several years to get through the court process and to also uphold Judge Winik's finding through the appeal process, it appears the elderly woman was able to retain her Section 8 benefits.

Home / Courts and Agencies / Appeals Court / Termination of Section 8 benefits violated fair housing laws
Termination of Section 8 benefits violated fair housing laws
Tenant’s disability prevents discovery of son’s contraband
By: Eric T. Berkman December 17, 2020

The Boston Housing Authority improperly terminated the Section 8 benefits of an elderly disabled woman whose mobility issues apparently prevented her from discovering that her son hid contraband in her apartment, the Appeals Court has found.

Police discovered he**in, drug paraphernalia and a high-capacity firearm magazine in plaintiff Flavia Moretalara’s Jamaica Plain apartment after they arrested her son. The BHA terminated the plaintiff’s subsidized housing benefits pursuant to a lease provision that required her to stop guests from engaging in illegal activity on the premises, though the BHA also had a policy requiring it to reasonably accommodate a tenant’s disability in making such decisions.

GBLS attorney prevails in case
GBLS attorney prevails in case

A Housing Court judge enjoined the termination, finding a causal nexus between the tenant’s disability and the lease violation. The judge also found that the BHA failed to provide a legally tenable reason why the tenant had not proposed a reasonable accommodation plan where the tenant had hired a personal care attendant to help monitor the premises while promising that her son would stay away from the apartment.

The Appeals Court upheld the decision.

“Through its own informal process and three administrative hearings, the BHA has had ample opportunity to try to justify its decision to terminate the plaintiff’s Section 8 benefits. For the reasons set forth above, we conclude that the BHA has not done so,” Judge James R. Milkey wrote for the court. “Moreover, as noted, the BHA’s own policies establish a presumption in the plaintiff’s favor with regard to the import of the plaintiff’s disabilities. … Under these circumstances, we conclude that it is appropriate to affirm the judgment of the Housing Court.”

The 25-page decision is Moretalara v. Boston Housing Authority, Lawyers Weekly No. 11-181-20.

Important reinforcement

Boston Housing Authority spokesperson Lydia Agro said in a prepared statement that the BHA pursued its appeal because it believed the Housing Court ruling was inconsistent with applicable law and regulations and because of the seriousness of the conduct in question.

“Currently, we are reviewing the Appeals Court decision with an eye towards reconciling the decision with BHA’s interpretation of these laws and regulations as well as the operation of our Section 8 program,” Agro stated. “In this regard, our goal remains to interpret the laws and regulations applicable to our program accurately and to do all we can to eliminate from our communities the type of criminal activity that is featured in this case.”

Plaintiff’s counsel Deena Zakim, a staff attorney with Greater Boston Legal Services, said she was thrilled for her client.

“She persevered through this case for several years, bouncing between the housing authority and the Housing Court, [and] can finally breathe and enjoy the safety and stability of her home,” Zakim said.

Zakim also said the decision reinforces that the duty of housing authorities to comply with fair housing laws trumps judicial deference to authorities’ exercise of discretion in “one strike” eviction and termination cases.

That is only fair, she continued, since tenants who rely on in-home care cannot avoid allowing caretakers into their residences, making their tenancies more vulnerable to misconduct than tenants without disabilities.

camara-laura“In situations where there is a clear link between an individual’s disability and their inability to properly monitor or control the behavior of others, a reasonable accommodation of that disability must be provided.”

— Laura F. Camara, Justice Center of Southeast Massachusetts

Laura F. Camara, senior staff attorney with the Justice Center of Southeast Massachusetts in Brockton, said the decision makes clear to public and subsidized housing providers across the state that their obligations under state and federal anti-discrimination laws do not end simply because there are allegations of drug use or violent criminal activity.

“In situations … where there is a clear link, or nexus, between an individual’s disability and their inability to properly monitor or control the behavior of others, a reasonable accommodation of that disability must be provided,” said Camara, who has represented a number of public and subsidized housing tenants facing eviction under such circumstances.

Susan A. Silverstein, a senior attorney with the AARP Foundation in Washington, D.C., which submitted an amicus brief in the case, echoed Zakim’s comment that, as a result of the decision, many tenants with disabilities who rely on caregivers in order to remain independent in their communities will be able to keep their affordable housing.

“The [federal] Fair Housing Act requires housing providers to make reasonable accommodations to tenants with disabilities, including older tenants, before they can evict them for any reason,” Silverstein said.

A. Joseph Ross, a landlord-tenant lawyer in Newton Center, applauded the decision.

“This isn’t the first time I’ve seen the Boston Housing Authority do something quickly and not follow their own rules, particularly when they want to get someone for some reason,” he said. “And right now, when we’ve got COVID going on, it’s even less of a good time to be forcing people out onto the street.”

Lease violation

Moretalara, a cancer survivor, suffers from a number of medical conditions, including vertigo, which leaves her vulnerable to falls. She also has chronic pain that limits her mobility and has necessitated multiple surgeries.

The plaintiff moved into her Jamaica Plain apartment in 2001, relying on a Section 8 housing choice voucher administered by the BHA to help pay for her rent. Through the years, various family members, including her son, would help care for her, staying in her second bedroom when visiting for such purposes.

Boston police showed up at the plaintiff’s apartment one day in 2015 with a search warrant targeting her son. The officers found a plastic bag containing a gram of he**in in the second bedroom. They also found a high-capacity firearm magazine hidden in a safe and drug paraphernalia under the mattress and in the closet.

The son was arrested.

The plaintiff did not previously know of her son’s misconduct. Still, the BHA, which was authorized but not required to terminate her Section 8 benefits for serious or repeated lease violations, moved to do so pursuant to a requirement in her lease that she refrain from engaging in illegal activity and that she prevent guests from engaging in illegal activity in the premises as well.

Federal law required the BHA to consider all relevant circumstances when considering terminating her benefits, including the extent to which individual family members were involved in the event leading to termination.

Moretalara v. Boston Housing Authority
THE ISSUE: Did the Boston Housing Authority improperly terminate the Section 8 benefits of an elderly disabled woman whose mobility issues apparently prevented her from discovering that her adult son had hidden narcotics and other contraband in her apartment?

DECISION: Yes (Appeals Court)

LAWYERS: Deena Zakim of Greater Boston Legal Services, Boston (plaintiff)

Michael J. Louis and Angela Marcolina, of Boston Housing Authority, Boston (defense)

Additionally, if the family included a person with disabilities, the BHA was required to consider a reasonable accommodation in accordance with federal law and its own policies.

Meanwhile, under the BHA’s own reasonable accommodation policy — which included a presumption in the beneficiary’s favor — a Section 8 beneficiary whose disability led to the violation could request that the authority forgo termination if he or she could show an effective plan to keep the violation from recurring.

Despite the plaintiff’s request that the BHA reasonably accommodate her disability by allowing her to stay in the apartment with a commitment that her son stay away, a hearing officer approved the termination, which a second hearing officer upheld and then reapproved on remand from the Housing Court.

Housing Court Judge Jeffrey M. Winik reversed the hearing officers’ decisions, finding the BHA violated federal and state disability laws, and ordered the plaintiff’s benefits reinstated.

The BHA appealed.

Decision affirmed

In affirming Winik’s judgment, the Appeals Court noted that for the plaintiff to be entitled to a reasonable accommodation, she had to show she was disabled, that there was a causal link between her disability and the lease violation, that the accommodation was reasonable, and that the proposed plan to prevent future lease violations was reasonably likely to work.

The court also noted that the hearing officer was obligated to presume the accommodation was necessary and appropriate, and it was up to the BHA to rebut that presumption with substantial and legally valid evidence.

Based on the record in the case, Milkey wrote, “[t]he plaintiff presented a facially plausible case that her mobility-limiting disabilities prevented her from finding items that her son secreted in a bedroom that she did not use.”

In the face of the presumption in the plaintiff’s favor, Milkey continued, “the BHA failed to establish legally tenable ‘specific reasons’ why there was no causal link between her disabilities and the lease violation for which it terminated her Section 8 benefits.”

Accordingly, the court concluded, Winik’s judgment should be affirmed.

The Boston Housing Authority improperly terminated the Section 8 benefits of an elderly disabled woman whose mobility issues apparently prevented her from discovering that her son hid contraband in…

12/31/2020

Boston extending ban on evictions
By: Mass. Lawyers Weekly Staff December 30, 2020

City officials have extended the moratorium on non-essential evictions for Boston Housing Authority public housing residents until March 1.

The moratorium offers housing stability to the BHA’s public housing residents and reduces coronavirus risks associated with the processing of its non-essential eviction cases, according to a Dec. 29 announcement from the offices of Mayor Martin J. Walsh and BHA Administrator Kate Bennett.

The city defines “non-essential evictions” as including all eviction proceedings except for those related to criminal activity, and those that are necessary to protect the health and safety of BHA residents, employees and others.

“It’s been a difficult year, with a dueling public health and economic crisis that has hit our communities hard,” Walsh said in a statement. “This moratorium continues to serve the best interests of both our residents who struggle to make ends meet and of our city as a whole, as we fight to maintain the health and safety of our city.”

The BHA was the first major housing provider in Boston to implement a moratorium on non-essential evictions in March 2020. Its previous extension was set to expire at the end of 2020.

Since the start of the COVID-19 pandemic, the city of Boston and the BHA have taken certain actions to protect homeowners and renters from eviction and have made resources available to help residents stay in their homes.

For example, the city has contracted with Greater Boston Legal Services to add additional attorneys to assist tenants facing eviction. In addition, the Office of Housing Stability has expanded the Housing Court Navigator Program that assists tenants who are in Housing Court and need financial, legal or other assistance.

City officials have extended the moratorium on non-essential evictions for Boston Housing Authority public housing residents until March 1. The moratorium offers housing stability to the BHA’s publ…

12/29/2020

Call me crazy!! But wouldn't it be better to give the $8.6 million from the Cares Act directly to the landlords who have tenants facing eviction because they are behind on rent due to the pandemic, rather than give the $8.6 million to the lawyers to fight the evictions? What am I missing here? I know I am a lawyer; and I am happy for my colleagues to get business, BUT this makes absolutely no sense to me. Am I alone on this one?

A legal assistance program started by the Baker administration as a moratorium on evictions and foreclosures was set to end is looking to ramp up services and bring on a host of new attorneys as ev…

11/17/2020

Good Job--DA Rachel Rollins. I agree with her decision. It's about time.

Suffolk DA moves to vacate more convictions linked to Dookhan
By: Associated Press November 17, 2020

Lawyers Weekly Article:

Suffolk County District Attorney Rachael S. Rollins has moved to throw out 108 more convictions tainted by the misconduct of former drug lab chemist Annie Dookhan, she announced on Nov. 17

Rollins said the cases are “forever tainted” by Dookhan, who was convicted of tampering with evidence and sentenced to three years in prison.

Thousands of convictions across the state have already been tossed because of Dookhan’s actions.

“No defendant impacted by this ignominious chapter of Massachusetts law enforcement history should continue to bear the burden of Dookhan’s deceit, her sad and desperate need for attention, and the enormous amount of harm she inflicted upon so many,” Rollins said.

With the coronavirus pandemic disrupting court operations, it was not sensible to allocate resources to the cases, she said.

Furthermore, the defendants face mandatory minimums that “make it infinitely easier to persuade and leverage defendants to plead guilty,” Rollins said.

A study commissioned by late Supreme Judicial Court Chief Ralph D. Gants this year found that Black and Latino defendants are more likely to get hit with charges that carry mandatory minimum prison time.

Suffolk County District Attorney Rachael S. Rollins has moved to throw out 108 more convictions tainted by the misconduct of former drug lab chemist Annie Dookhan, she announced on Nov. 17 Rollins …

11/16/2020

Breaking Case. Police Officers will be held liable for failing to protect persons from danger created or enhanced by the officer's affirmative acts, within certain parameters.
Here is the article by Massachusetts Lawyers Weekly:
On ‘state-created danger,’ 1st Circuit joins majority
Rejects qualified immunity
By: Kris Olson November 12, 2020

Police officers can be held liable for failing to protect plaintiffs from danger created or enhanced by their affirmative acts, the 1st U.S. Circuit Court of Appeals has decided, becoming the 10th circuit to adopt the state-created danger substantive due process doctrine.

Writing for the panel, Judge Sandra L. Lynch noted that while the 1st Circuit had not previously adopted the doctrine, it had repeatedly outlined its “core elements” in earlier cases.

Plaintiff’s counsel
Plaintiff’s counsel

Most notable of those earlier cases was 2005’s Rivera v. Rhode Island, in which the court held that the mother of a girl who had been killed after telling police repeatedly about threats to her life if she testified at a murder trial had not made out a viable state-created danger claim because the defendant officers’ actions were essential to the investigation and performed appropriately.

The present case, Irish, et al. v. Fowler, et al., in which two Maine State Police detectives allegedly triggered a suspect’s rampage by leaving a misguided voicemail on his cellphone, was different, the court concluded.

The 1st Circuit specified that a viable state-created danger claim has four components: A state actor must commit affirmative acts that create or enhance a danger to the plaintiff; that danger must be specific to the plaintiff and distinct from the danger to the general public; and the acts must both cause the plaintiff’s harm and shock the conscience.

The 1st Circuit added that “deliberate indifference” might shock the conscience, as long as the plaintiff could show the defendant “actually knew of a substantial risk of serious harm and disregarded that risk.”

Citing Rivera, the defendants in Irish argued that the use of basic law enforcement investigative tools could never serve as the “affirmative act” underlying a state-created danger claim.

But Rivera “established no such thing,” the 1st Circuit clarified.

The defendants also argued that violations of state law and department policy could not serve as the basis of a state-created danger claim. But the panel said that such violations “are, at the very least, relevant to determining the conscience-shocking nature of the defendants’ conduct.”

The 34-page decision is Lawyers Weekly No. 01-229-20.

Right time, right facts

The 1st Circuit was clearly waiting for a case with an egregious enough set of facts to adopt the state-created danger doctrine, said the plaintiffs’ attorney, Scott J. Lynch of Lewiston, Maine.

Previous cases in which the court stopped just short of endorsing the doctrine were lacking in one or more of the necessary elements, he added.

“This case is so bad, it was the right time and the right place” to adopt the doctrine, agreed Suffolk University Law School Professor Karen Blum.

To Lynch and others, the more striking part of the decision was that the court denied qualified immunity to the defendants.

More than a few courts have found that officers had no way of knowing that their conduct might prevent the use of qualified immunity in the absence of a previous case with facts on “all fours” with their own situation, Lynch said.

To Blum, the Irish decision is an antidote of sorts to recent Supreme Court rulings that have left the waters murky.

For a plaintiff to get any kind of relief is a “step in the right direction,” she said. Specifically, Blum said it was “refreshing” to see courts take their inquiry beyond whether there is a case directly on point within the circuit.

“How the 1st Circuit looked at cases that were out of the circuit is certainly very helpful to plaintiffs,” Providence attorney Georgi J. Vogel-Rosen agreed.

Boston attorney Howard Friedman said that aspect of the Irish decision should encourage plaintiffs’ attorneys to broaden their research when assessing their clients’ claims. If they find a “coalescence of rules” in other circuits, that may be enough to get past qualified immunity, he said.

Cases like Irish should educate people that qualified immunity “is not an absolute shield,” said Boston attorney Leonard H. Kesten, who frequently defends police officers.

Efforts to reach the Maine Attorney General’s Office were unsuccessful.

Unheeded warnings

At approximately 11:13 a.m. on July 15, 2015, Brittany Irish reported to the Bangor Police Department that Anthony Lord, a former boyfriend, had kidnapped and r***d her repeatedly the night before.

After being referred to the Maine State Police, Irish repeatedly told detectives Jason Fowler and Micah Perkins that Lord “would become terribly violent” if he knew she was speaking with them.

Despite what the detectives had learned about Lord, they did not perform the customary check of the s*x offender registry, nor did they take steps available to them to detain Lord, the plaintiffs allege.

Instead, the detectives called Lord’s cellphone, and when he did not answer, Perkins left a voicemail, identifying himself as a State Police detective and asking Lord to return his call.

Irish, et al. v. Fowler, et al.
THE ISSUE: Does the 1st Circuit recognize the state-created danger substantive due process doctrine, which says that police officers can be held liable for failing to protect plaintiffs from danger created or enhanced by their affirmative acts?

DECISION: Yes (1st U.S. Circuit Court of Appeals)

LAWYERS: Scott J. Lynch of Lynch & Van D**e, Lewiston, Maine (plaintiffs)

Christopher C. Taub and Aaron M. Frey, of the Maine Attorney General’s Office (defense)

Less than two hours later, Perkins received notice of a possible suspicious fire, which turned out to be on the property of Irish’s parents. That set off a search for Lord beset by delays and missteps, according to the plaintiffs.

Between 3 and 4 a.m., Irish’s mother, Kimberly, told the State Police that she wanted to go with her daughter and her daughter’s boyfriend in her car and spend the night in the State Police parking lot, but she was informed that would be a “dangerous mistake.” She was assured, falsely, that there were “officers in the vicinity” ready to respond if there were any problems.

Around the same time, just six miles away, Lord was attacking a man with a hammer and stealing the man’s truck and guns. Lord then drove to Kimberly Irish’s home.

Once there, he fired one round with the stolen shotgun at the front door to break the lock, hitting Brittany in the arm. Lord then kicked down the door and shot Brittany’s boyfriend nine times as Brittany watched.

After her mother pushed her out a bathroom window, Brittany fled and jumped into a passing truck driven by Carleton Eddy. But before Eddy could pull away, however, Lord managed to jump into the bed of the truck and shot Eddy three times in the neck. He then pulled Brittany out of the truck.

It took nine hours for police to free Brittany and apprehend Lord.

The District Court below concluded that the plaintiffs had presented triable issues of fact as to whether the detectives had violated their substantive due process rights under a state-created danger theory.

However, the court also found that the defendants were shielded by qualified immunity because existence of the state-created danger doctrine was not clearly settled law in the 1st Circuit, especially since two circuits — the 5th and 11th — had rejected the doctrine.

The lower court judge dismissed the case, viewing it as “not within the court’s purview to select between the majority and minority rules.”

No qualified immunity

With respect to whether the defendants could avail themselves of qualified immunity, the 1st Circuit noted that its determination turned on the second prong of the test, whether the unlawfulness of the defendants’ conduct was “clearly established at the time.”

lynch-sandra“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.”

— Judge Sandra L. Lynch

The defendants reiterated their argument below that, because the 1st Circuit had not previously recognized the state-created danger doctrine, the law was not clearly established. But the court called that argument “simply incorrect.”

The landscape was far different in 1997, when the 1st Circuit decided a case on which the defendants were relying, Soto v. Flores, the panel added. At that point, the 1st Circuit had never discussed the “contours” of the doctrine, and the history of the doctrine was “uneven,” Lynch explained.

“All this had changed by the time Detective Perkins left the voicemail for Anthony Lord,” Lynch wrote.

By July 2015, the 1st Circuit had discussed the state-created danger doctrine at least a dozen times, even if it had never found it applicable to the facts of a specific case, Lynch noted. Nor did it matter that the 5th and 11th circuits had rejected the state-created danger doctrine.

“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,” Lynch wrote.

The panel called Rivera a “critical warning bell” that officers could be held liable under the state-created danger doctrine when their non-essential affirmative acts enhance a danger to a witness.

The 1st Circuit also called “wrong” the defendants’ premise that they were immune from suit because no factually similar cases alerted them that their conduct was impermissible, identifying factually similar cases from the 9th and 7th circuits that it said gave the defendants notice that they could be held liable for violating the Due Process Clause.

The panel added that the officers were also on notice that they could be liable for a constitutional violation for failing to take steps to mitigate a danger they had created and misleading the victim about the level of police protection she had.

The defendants’ “apparent utter disregard for police procedure” could also contribute to a jury’s conclusion that, with their deliberate indifference to a danger they knowingly created, the defendants engaged in conduct that “shocks the conscience.”

RELATED JUDICIAL PROFILES
Lynch, Sandra L

Police officers can be held liable for failing to protect plaintiffs from danger created or enhanced by their affirmative acts, the 1st U.S. Circuit Court of Appeals has decided, becoming the 10th …