An attorney for two women whose teenage children were murdered in 2012 says Biddeford police officers are partly responsible for their deaths because they agitated the teens’ landlord and then left the scene minutes before the fatal shooting.

The attorney for the officers says they did not act in a way that increased the danger that day and should not be held civilly liable for the violence that followed their visit.

Derrick Thompson and Alivia Welch

The 1st U.S. Circuit Court of Appeals in Boston heard those arguments Thursday and will now decide whether the lawsuit against Biddeford and its police officers can move forward. James Pak, now 83, is serving a life sentence for the December 2012 murders of Derrick Thompson, 19, and his girlfriend, Alivia Welch, 18. Pak also shot Thompson’s mother, Susan Stevens, but she survived the attack.

Derrick Thompson called police on Dec. 29, 2012, to report that his landlord was making threats against the tenants. Officers came to the apartment building and spoke with Pak, but they never asked Pak if he had a gun and they left when they decided the dispute was a civil matter. Within minutes, Pak entered the apartment with a gun and shot the three residents.

The victims’ mothers filed separate wrongful death lawsuits in U.S. District Court in Portland, arguing the officers did not do enough to address Pak’s threats right before the shooting. Their two cases later merged. The defendants are the city of Biddeford and its police department, Police Chief Roger Beaupre and the two individual officers who responded that day.

Susan Johnson, whose last name is now Stevens, wipes a tear from her cheek as James Pak receives two life sentences for the 2012 murders of her son, Derrick Thompson, and his girlfriend, Alivia Welch, in Superior Court in Alfred on Feb. 11, 2016. Stevens, who was wounded in the attack, is suing the city of Biddeford, claiming police didn’t do enough to prevent the shooting. Whitney Hayward/Staff Photographer

A federal judge last year decided the officers were not liable for Pak’s crimes and dismissed the lawsuit. District Judge Jon Levy ruled that the actions and inactions by the officers did not greatly increase the risk of danger to the victims.

“One may reasonably ask whether James Pak’s crimes might have been prevented if the police had taken additional affirmative steps to protect the victims in response to the 9-1-1 call,” Levy wrote in the order. “Yet … judges must exercise restraint in cases such as this and remain mindful of their ‘natural sympathy’ and tendency to search for a way to compensate plaintiffs for the grievous harm that they have endured.”

The mothers asked the 1st Circuit to overturn that decision and revive their case.

James Pak, seen in court in 2016, is now serving life in prison for murdering two teenagers and shooting a woman who was his tenant in 2012. Whitney Hayward/Staff Photographer

The appeal heard on Thursday focused heavily on another Maine case that went to the appeals court last year after Levy issued his ruling. A woman sued the Maine State Police for failing to protect her from a former boyfriend who went on a shooting rampage after she reported he raped her. The lower court decided qualified immunity protected the troopers from her lawsuit, but the 1st Circuit disagreed and allowed the case to continue.

In that decision, the appellate judges officially recognized what is called “state-created danger,” a legal doctrine that has been adopted in other circuits. The idea is that a police officer can be held liable for injuries or deaths that happen because the officer acted in a way that brought harm to a person.

The state has petitioned the U.S. Supreme Court for review of that decision, but the court has not yet decided whether to do so.

In the case before the court Thursday, the judges asked the attorneys to apply the “state-created danger” concept to the actions of Biddeford police Officer Edward Dexter, who spoke directly to Pak before the shootings. Circuit Judge Sandra Lynch focused in particular on comments Pak made toward the end of his interaction with Dexter: “You’ll read about me in the newspaper tomorrow” and “there will be a bloody mess.”

Attorney Kristine Hanly, who is representing the mothers, said Dexter could have taken different steps to intervene. She suggested that he could have asked additional questions about firearms, taken Pak into protective custody or arrested him, or even informed the tenants of the direct threats Pak made during their conversation. Instead, she argued, Pak became more agitated.

“If you listen to the tape, you can see Mr. Pak’s demeanor only gets worse and worse and more heightened than Mr. Pak was when the officers arrived and more heightened than the plaintiffs had ever described him in the past,” Hanly said.

Attorney Joseph Padolsky, who is representing the Biddeford defendants, said Pak’s demeanor did fluctuate during his conversation with Dexter, but Pak told the officer not to worry when they parted. He also pointed out differences between this case and the one involving the Maine State Police; for example, Pak did not have a criminal record or a history of violence like the shooter in that case.

“It’s not like he walks out,” Padolsky said of the officer. “He spends a significant amount of time speaking with Mr. Pak and again calming him down.”

The arguments on Thursday did not directly consider whether officers have qualified immunity from a lawsuit in this case, although the concept did come up in the written briefs for both sides.

The U.S. Supreme Court created qualified immunity more than 50 years ago to protect government employees from frivolous litigation, but it has expanded in case law over decades. It has come under new scrutiny, especially since the murder of George Floyd in Minneapolis last year, as activists push for greater accountability when police officers use excessive force. Both Congress and the Maine Legislature have debated restricting the use of qualified immunity as a legal shield in civil cases against police officers.

The court does not have a timetable to make its decision.

Comments are not available on this story.

filed under: