A federal appeals court has upheld the dismissal of a 2017 lawsuit against a Biddeford police officer for his handling of an incident that led to the shooting deaths of two teenagers in 2012.

This week’s decision by the 1st U.S. Circuit Court of Appeals in Boston is likely the end of Susan Johnson and Jocelyne Welch’s civil complaint against the city, its police chief and Officer Edward Dexter, who they alleged pushed landlord James Pak to kill Johnson’s 19-year-old son Derrick Thompson and Welch’s 18-year-old daughter Alivia Welch.

Thompson had called police after Pak made threats against him about too many cars being parked in the driveway. Dexter arrived and talked with both parties separately. Pak continued to make several threats against his tenants. Dexter advised Pak to seek civil remedies and told Thompson to avoid the landlord.

Minutes after Dexter left, Pak entered his tenant’s apartment and shot and killed Thompson and Alivia Welch. Johnson, whose last name is now Stevens, was shot as well but survived. Her other son, who was 6 at the time, was present but unharmed.

The women filed their lawsuit against Biddeford in 2017. The case originally was dismissed, but they appealed, and in 2020, the 1st U.S. Circuit Court of Appeals asked Chief U.S. District Judge Jon Levy to reconsider the case.

Levy had dismissed the lawsuit using a 1989 U.S. Supreme Court decision that found the state’s failure to protect a person from private violence does not constitute a violation of their rights. But there are exceptions to that rule for “state-created danger,” which is why the 1st Circuit asked Levy to reconsider.

Johnson and Welch then argued that Dexter had made a dangerous situation worse by agitating Pak in 2012. They also said the officer failed to check whether Pak was armed or mentally unwell, and they said Dexter misled Johnson’s family about the risk they faced.

Levy agreed last year that the women had enough evidence to argue in trial that Dexter made a dangerous situation worse, but he still dismissed the case a second time. He found that Dexter wouldn’t have been aware of a state-created danger standard in 2012 because there wasn’t any legal precedent to put Dexter or his department on notice.

Levy reached his latest decision, which was upheld by the 1st Circuit, using the “qualified immunity” standard, a complex legal doctrine often used to shield police and other public employees from lawsuits. Under this doctrine, police cannot be held liable if they are reasonably unaware that their conduct is wrong.

Asked to comment on the latest decision, Biddeford Police Chief Joanne Fisk referred the Press Herald to the city’s attorney, Joseph Padolsky.

“This case is a tragedy all the way through,” Padolsky said. “It’s presented through the lens of a civil rights case against an officer who never would have wished or reasonably expected such tragedy would unfold. That’s the purpose of the qualified immunity doctrine, which Chief Judge Levy and the 1st Circuit applied in two thorough and well-reasoned decisions.”

Johnson and Welch’s attorney, Kristine Hanly, called the decision disappointing. She said her clients have not yet ruled out a petition to the U.S. Supreme Court, but that would be a long shot.

“We’ve been fighting this case for almost seven years now, and it’s almost been 11 years since these women lost their teenagers,” Hanly said.

The 1st Circuit reached its decision unusually fast. Oral arguments were held just last month.

Hanly had argued there were enough court decisions before 2012, in other states, giving Dexter enough warning of what “state created danger” looks like.

She cited a 2006 case, in which a police officer in Washington tipped off a man that he was under investigation for sexually abusing his neighbor’s daughter. The man went on to shoot his neighbor and her husband.

She also referred to a 1998 case, in which a police officer in Wisconsin promised to prevent the release of a tape recording of an employee accusing his co-worker of theft. The officer was informed that if the recording was released, it could result in “violent retaliation.” The officer failed to keep the recording safe, and that employee was later killed by several co-workers.

But Padolsky argued those cases weren’t similar enough, and the 1st Circuit agreed. A reasonable person could find that Dexter didn’t believe Pak was dangerous because Thompson had told a 911 dispatcher Pak always behaved that way.

The appeals court also found that Dexter’s failure to check if Pak had access to a firearm may have been “a serious misjudgment,” but it wasn’t egregious enough to clearly cause Pak to shoot his tenants.

“The qualified immunity defense, however, ‘demands deference to the reasonable, if mistaken, actions of the movant,’ ” the 1st Circuit ruled. “A reasonable officer could have understood Officer Dexter’s conduct to be consistent with the constitution, and so he is entitled to qualified immunity.”

Hanly said the ruling “highlights the real challenges with qualified immunity,” and that Dexter was covered by qualified immunity only because of when the conduct occurred.

“You win the war and lose the battle,” she said. “Other officers who do the same thing, they can be liable, but for these plaintiffs, they don’t get that accountability.”

Dexter is now an assistant fire chief in Biddeford.

Pak, 86, pleaded guilty to two counts of murder and was given two life sentences in 2016. He is incarcerated at the Mountain View Correctional Facility in Charleston, according to the Maine Department of Corrections.

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