SCOTUS declines to hear appeal by Maine State Police troopers

The troopers were sued for allegedly failing to protect a woman before her ex-boyfriend went on a shooting rampage in 2015


By Megan Gray
Portland Press Herald, Maine

PORTLAND, Maine — The U.S. Supreme Court will not hear an appeal by two Maine State Police troopers who were sued for allegedly failing to protect a woman before her former boyfriend went on a shooting rampage.

That decision means the troopers will not be protected by qualified immunity — a controversial legal doctrine that can sometimes shield law enforcement officers from civil liability — and the case against them will continue on a path to trial.

The court included the case on a list of denials published Monday, but did not say why it declined to take the appeal.

Attorney Scott Lynch, who represents plaintiff Brittany Irish and her mother, did not respond to a voicemail or an email about the case. The two women have spent nearly six years fighting their case in federal court. When the 1st Circuit Court of Appeals in Boston sided with his clients last year, Lynch said they felt vindicated.

"Finally, the Irishes will get their day in court before a jury," he said at the time.

The Maine Attorney General's Office represents the troopers in the case. A spokesman said the office did not have any comment, and he did not answer a question about the next steps for the state.

Court documents outline the events that took place in Penobscot and Aroostook counties in July 2015.

Brittany Irish, who was 22 at the time, reported to police that her former boyfriend Anthony Lord had kidnapped and sexually assaulted her. She also said she told police that the registered sex offender had threatened her if she told anyone what he had done. Still, a Maine State Police detective left a voicemail for Lord, asking for a return phone call.

That evening, Lord set fire to a barn owned by Brittany Irish's parents in Benedicta. She said she asked for an officer to protect her family, but that request was denied.

In the early hours of the next morning, Lord beat up a man in Silver Ridge Township and stole firearms from him. He then went to the Irish home in Benedicta, where he shot and killed Brittany Irish's boyfriend, 22-year-old Kyle Hewitt, and wounded her mother. Irish tried to escape in a passing pickup truck, but Lord shot and wounded the driver. He then drove her to a woodlot in Lee, where he fired at two employees and killed 58-year-old Kevin Tozier.

A massive manhunt ended later that day when Lord gave himself up to police at his uncle's house in Houlton. He pleaded guilty in 2017 to two counts of murder, two counts of attempted murder, multiple counts of aggravated assault, reckless conduct with a dangerous weapon, theft of firearms and eluding an officer. A charge of kidnapping was dismissed. A judge gave him to two life sentences, and Maine's top court upheld that punishment.

Brittany and Kimberly Irish filed their lawsuit in federal court in December 2015. The individual defendants in the case are Jason Fowler, Micah Perkins and Darrin Crane. Among her claims, Brittany Irish argued that the troopers triggered the violent spree when they called Lord despite her warning.

Generally, case law says police officers do not have a special duty to protect the public from privately inflicted harms, as long as they do not create those harms. That exception is known as "the state-created danger" theory. The idea is that a police officer can violate a person's constitutional rights by acting in a way that creates or increases the harm to that person. And an officer who has violated someone's constitutional rights might not be entitled to qualified immunity, which is a shield against civil claims.

The case has been to the 1st Circuit and back twice. Last year, that court said a jury could find that the troopers did increase the danger to Irish and her family, and that they should not be protected by qualified immunity. The appellate judges also used the case to set a precedent on state-created danger.

"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," the opinion says.

Two of the three troopers petitioned the U.S. Supreme Court to hear their appeal. The National Fraternal Order of Police and the Maine State Police Association filed briefs in their support. Now that the court has denied that petition, the case will return to the federal court in Maine, possibly for a trial on the central claims of the lawsuit.

(c)2021 the Portland Press Herald (Portland, Maine)

McClatchy-Tribune News Service

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