Susan Johnson, left, mother of Derrick Thompson, and Jocelyne Welch, mother of Alivia Welch, outside of the federal courthouse in Portland in 2019 after a hearing in their wrongful death suit against the city of Biddeford. Brianna Soukup/Staff Photographer

Two women suing Biddeford police over the 2012 murders of their teenage children plan to appeal a recent dismissal of their case based on new legal arguments over qualified immunity.

U.S. District Judge Jon Levy ruled on Friday that there is clear evidence that Biddeford Police Officer Edward Dexter enhanced what was already a dangerous situation for Susan Johnson, her son Derrick Thompson, 19, and his girlfriend, Alivia Welch, 18, by agitating their landlord, James Pak, minutes before Pak walked into their apartment and shot them.

However, Levy said the officer is still protected by qualified immunity, a complex legal doctrine often used to shield police and other public employees from lawsuits.

Derrick Thompson and Alivia Welch on Christmas Day on 2012 shortly before they were murdered by Thompson’s landlord, James Pak, on Dec. 29, 2012. Courtesy

“What happened to Susan Johnson, (Derrick) Thompson, and Alivia Welch is undeniably tragic, and it is abundantly clear that Officer Dexter mishandled the situation in front of him,” Levy wrote. Johnson, whose last name is now Stevens, survived gunshots to her back and arm. Thompson and Welch died at the scene.

Levy did find that Dexter’s actions were consistent with a relatively new legal argument of “state-created danger” in the 1st U.S. Circuit Court of Appeals that would make him ineligible for qualified immunity.

But because the federal appeals court for Maine has only recognized the state-created danger theory twice, Dexter would not have had a “fair warning that his conduct was unconstitutional,” so Levy again dismissed the case.

Even so, Kristine Hanly, the attorney for Stevens and Welch’s mother, Jocelyn Welch, said she plans to appeal.

Levy’s order on Friday was the second time he’s ruled that this case cannot proceed to trial because the officers involved are protected by qualified immunity.

In his first ruling, Levy specifically said that Dexter could not be held liable for failing to respond to any threats Pak made. But the women appealed that dismissal and in August 2021 a federal appeals court asked Levy to reconsider his decision in light of a similar case in which the court found officers were not protected by qualified immunity because their actions actually escalated the threats they failed to address.

‘STATE-CREATED DANGER’

Thompson had called 911 that afternoon in December 2012 after Pak began arguing with him about the number of cars they were allowed to park in the driveway. Pak made threatening hand gestures at Thompson in the shape of a gun. Dexter arrived and spoke with both parties separately.

In his conversation with Dexter, Pak made a number of violent threats against his tenants, which Levy wrote were all recorded via police-worn body cameras. At one point, Pak told Dexter “you’re going to see me in the newspaper.” After Dexter told Pak he didn’t want to see that, Pak told the officer “he had nothing to lose” and that there was going to be a “bloody mess.”

When Dexter left the property, he suggested that the tenants stay away from Pak, but told them that dispute was ultimately a civil one that he had no control over. Minutes later, Pak walked into the tenants’ apartment and shot them.

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

Pak pleaded guilty to two counts of murder in 2016 and received two life sentences. The following year, the victims’ mothers filed separate wrongful death lawsuits in U.S. District Court in Portland, arguing officers did not do enough to address Pak’s threats right before the shooting. Their two cases later were merged.

When Levy effectively dismissed the case in May 2020, he ruled that the actions and inactions by the officers did not greatly increase the risk of danger to the victims.

The 1st U.S. Circuit Court of Appeals in Boston disagreed, having just ruled on a similar appeals case against the Maine State Police, in which Brittany and Kimberly Irish argued officers failed to protect them from Anthony Lord, who shot and killed Brittany’s boyfriend and two others after police called him during an investigation into allegations that he kidnapped and sexually assaulted Brittany Irish two days before.

The appeals court ruled in the Irish case that state officers were not protected under qualified immunity and that their actions amounted to state-created danger, in which they made an already-dangerous situation worse for the victims.

As part of that ruling, the appeals court spelled out a four-part test to establish where state-created danger exists.

‘SERIOUS DERELICTION OF DUTY’

Levy applied this test to Stevens and Welch’s lawsuit and found that the Biddeford police should’ve been subject to the state-created danger theory. However, Levy wrote that there weren’t enough legal decisions at the time for Dexter and other officers to be reasonably aware that his actions were unconstitutional, and therefore Dexter is still protected.

“Officer Dexter’s actions may have been a serious dereliction of duty,” Levy wrote. “But in light of the circumstances facing him, they were not so egregiously unlawful that it would have been clear to any reasonable officer that they were proscribed by the general principles of the state-created danger doctrine even without comparable case law.”

Joseph Padolsky, the attorney representing the city of Biddeford, Dexter and the police chief, said Monday that they agreed with Levy’s ruling. In the event of an appeal, Padolsky said the city will continue to defend itself from the claims.

But the appeals court referenced a number of state-created danger cases that predate 2012, including a 1989 U.S. Supreme Court case that established public employees aren’t liable for inaction unless they also have created some of the danger that they’ve failed to respond to.

Hanly disagrees and said Biddeford police should’ve been aware that their actions exacerbated the situation at the time.

“Sue and Jocelyn have been living with the emotional toll of losing their children for over 10 years,” Hanly said in an email Monday. “Their goal with this lawsuit has always been to hold the Biddeford Police Department accountable for their actions and to ensure that no other families are ever in the same position. … This order puts law enforcement officers on notice that they violate the constitution when they fail to protect citizens from the kinds of threats Pak made and will not be protected by qualified immunity in the future.”