United States Court of Appeals
                      For the First Circuit


No. 20-1208

 BRITTANY IRISH, individually and as Personal Representative of
           the Estate of Kyle Hewitt; KIMBERLY IRISH,

                     Plaintiffs, Appellants,

                                v.

DETECTIVE JASON FOWLER; DETECTIVE MICAH PERKINS; SERGEANT DARRIN
                             CRANE,

                      Defendants, Appellees,

                               and

 STATE OF MAINE; STATE POLICE OF THE STATE OF MAINE; JOHN DARCY;
                         ANDREW LEVESQUE,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                              Before

                    Lynch, Selya, and Barron,
                         Circuit Judges.


     Scott J. Lynch, with whom Lynch & Van Dyke, P.A. was on brief,
for appellants.
     Christopher C. Taub, Assistant Attorney General, with whom
Aaron M. Frey, Attorney General, was on brief, for appellees.
November 5, 2020
            LYNCH, Circuit Judge.        In this opinion, we hold on these

facts that a viable substantive due process state-created danger

claim has been presented against two Maine State Police ("MSP")

officers, and that it was error to grant the officers qualified

immunity.    Under the state-created danger substantive due process

doctrine, officers may be held liable for failing to protect

plaintiffs from danger created or enhanced by their affirmative

acts.   In doing so, we for the first time join nine other circuits

in holding such a theory of substantive due process liability is

viable.

            This § 1983 action arises out of the attacks, murder,

and rapes committed in July 2015 by Anthony Lord against appellants

Brittany Irish ("Irish") and those close to her.                After actions

and inactions by the defendant officers, Lord murdered Irish's

boyfriend Kyle Hewitt, shot Irish's mother Kimberly Irish, and

then kidnapped Brittany Irish for about nine hours and raped her.

            The suit asserts that Lord's rampage was triggered by a

voicemail left on Lord's cellphone by defendant MSP Detectives

Micah Perkins and Jason Fowler, the officers investigating Irish's

criminal complaint that Lord had abducted, threatened, and raped

her two days earlier.            Before the detectives checked Lord's

criminal    record   or   made   any    effort   to   find   Lord   in   person,

Detective Perkins left a voicemail identifying himself as a state

police officer and asking Lord to call him back.


                                       - 3 -
          The plaintiffs seek relief based on the state-created

danger doctrine.      The plaintiffs argue that the detectives created

and enhanced the danger to them and then failed to protect them in

the face of Lord's escalating threats.

          This court had earlier vacated the dismissal of these

claims for failure to state a claim.         Irish v. Maine, 

, 523 (1st Cir. 2017) ("Irish I").             After remand and the

completion of extensive pretrial discovery, the defendants moved

for summary judgment and the district court held that a jury could

find   that   the    defendant   officers   violated   the   plaintiffs'

constitutional rights.      Irish v. Fowler, 

, 364

(D. Me. 2020).      It granted summary judgment to the officers on the

grounds of qualified immunity.

district

court's rulings later.

          We affirm the district court's holding that a jury could

find that the officers violated the plaintiffs' substantive due

process rights.        We reverse the grant of defendants' summary

judgment motion on qualified immunity grounds.

                          I. Statement of Facts

          On defendants' motion for summary judgment, we read the

facts in the light most favorable to the plaintiff.           Stamps v.

Town of Framingham, 

, 30 (1st Cir. 2016).

          We supplement our description of the facts in Irish I

with the district court's comprehensive statement of the facts.


                                  - 4 -
                The Events Underlying Plaintiffs' Claims

           At approximately 11:13 AM on July 15, 2015, Britany Irish

reported to the Bangor Police Department that Anthony Lord, a

former lover, had kidnapped and raped her repeatedly on the night

of July 14, including at two vacant camps near Benedicta, Maine.

The Bangor Police Department referred her to the MSP. MSP Sergeant

Darrin Crane assigned Detectives Perkins and Fowler to the case

and told the detectives that Lord was a registered sex offender.

Around 2:00 PM, Sergeant Crane forwarded the detectives a copy of

Brittany Irish's statement to the Bangor Police Department.              The

statement said that Lord had threated to "cut her from ear to ear."

           Brittany Irish met with the detectives at 3:05 PM and

again at 4:34 PM. At the 3:05 meeting, she told the detectives

that she was "scared that Anthony Lord would become terribly

violent if he knew [Irish] went to the police."              The detectives

told    Irish   that    because    of    Lord's   repeated   threats,    they

"recommended not letting [Lord] know . . . reports had been made

[to the police]." Indeed, they instructed her to "continue talking

to [Lord] as if nothing happened" until the detectives could get

Lord's statement. Irish also told the detectives that she had moved

her children to Hewitt's mother's house in Caribou, Maine, for

their   safety.        That   evening,   the   detectives    found   evidence

corroborating Irish's allegations against Lord at one of the vacant

camps near Benedicta.


                                    - 5 -
           On July 16, Irish made a second written statement to the

detectives which said that Lord had threated to "cut [her] from

ear to ear," to abduct Irish's children, to abduct and "torture"

Hewitt to find out "the truth" about what was happening between

Irish and Hewitt, to kill Hewitt if Hewitt was romantically

involved with Irish, and to weigh down and throw Irish into a lake.

           Despite these repeated death and other threats and their

knowledge that Lord was a registered sex offender, the defendants

did not, as was customary, check the sex offender registry to find

Lord's address or run a criminal background check. Such searches

would have revealed that he was on probation and had an extensive

record of sexual and domestic violence.              The detectives did not

contact   Lord's   probation    officer      at    this   time   or   request   a

probation hold, which could have been used to detain Lord and is

simpler to obtain than an arrest warrant.

           Her     written    statement       in    hand,    the      detectives

interviewed   Irish   again    on    July    16.     Despite     their   earlier

statement to her, they told her that they planned to call Lord to

get his statement. At 6:17 PM on July 16, Detective Perkins called

Lord while Detective Fowler listened.1             When Lord did not answer,

Detective Perkins did not hang up.            Rather, he left a voicemail

for Lord on his cellphone.          In that voicemail, Detective Perkins


     1    At no point has the defense tried to distinguish between
the two officers as to plaintiffs' claims.


                                     - 6 -
identified himself as a state police detective and asked Lord to

return his call.    Detective Perkins did not ask Lord to come meet

with him.    At that point, the defendants had made no effort to

locate Lord, much less to apprehend him.         Detective Perkins

admitted that, if Lord had committed the original assault against

Irish, it would be "logical" that Lord would determine that the

phone call was related to the rape and kidnapping of Brittany

Irish.

            At 8:05 PM on July 16 -- about an hour and forty-five

minutes after he had left the voicemail -- Detective Perkins

received notice of a "possible suspicious" fire in Benedicta, the

town where the detectives had found evidence that Lord had raped

Irish at a vacant camp.   Believing that Lord may have set the fire,

the detectives drove to the site of the fire.   At 9:24 PM, Brittany

Irish called the detectives and told them it was her parents' barn,

roughly fifteen feet from their home, which was on fire.      Irish

also told the detectives that someone had heard Lord say as he

left his uncle's house (in Crystal, Maine) earlier that evening

that "I am going to kill a fucker."      Irish told the detectives

that she was afraid for her children's safety, planned to stay at

her mother's home in Benedicta, and would meet the detectives

there.

            The detectives first began the search for Lord at 10:05

PM, almost four hours after leaving the voicemail.    They arranged


                                - 7 -
a state-wide teletype for a "stop and hold" of Lord.                     Detective

Perkins added a "use caution" warning to the teletype, which warned

officers that Lord could be dangerous and to take precautions.

              Sergeant Crane joined the search at about 10:00 PM.

Around 10:35 PM, Sergeant Crane sent two MSP troopers to Lord's

mother's house in Houlton, Maine, which is about forty miles from

Benedicta.      Those officers did not call Lord's mother's house but

chose to drive there. There is no evidence that these officers

ever left Houlton or came to Benedicta to help look for Lord.

              The defendant detectives arrived at the scene of the

barn fire around 10:36 PM.           Detective Perkins requested a K-9 unit

to be dispatched to the scene.

              Shortly thereafter, Irish received a phone call from her

brother, who told her that Lord, upon receiving the voicemail, was

irate   and    said   that        "someone's     gonna   die     tonight."     Irish

immediately told the detectives about this death threat and asked

for protection.            The officers left the scene and no officer

remained to protect her and the others.

              At 11:38 PM, the detectives finally requested a criminal

background check and learned Lord's criminal record.

              At   11:49    PM,    the   detectives      first    contacted   Lord's

probation officer, who attempted to reach Lord and told the

detectives that Lord's last known residence was at his uncle's

property in Crystal, Maine.


                                         - 8 -
             Around   midnight,   Brittany    Irish   contacted   Detective

Perkins and asked again for an officer to come to her mother's

residence.     Detective Perkins understood that she wished for an

officer to protect her and her family in the event that Lord

returned to her mother's house.         Detective Perkins did not relay

the request to his superior at this time, and no officers were

sent there.

             Instead, at 12:30 AM on July 17, four officers, including

Crane, Fowler, and Perkins, went to Lord's uncle's house in

Crystal, Maine, about twenty miles from Benedicta, to look for

Lord.   They did so despite having been told that Lord had left his

uncle's house earlier that evening and their suspicions Lord had

set the fire in Benedicta.        No explanation was given for why they

did not call the uncle to see if Lord was there.

             At about 1:00 AM, Crane, Fowler, and Perkins met in a

parking lot in Crystal, where Detective Perkins finally told

Sergeant Crane about Irish's request for protection.               Sergeant

Crane told the detectives he would not provide protection to the

plaintiffs    because   they   did    not    have   "the   manpower."   The

detectives did not tell Irish about this decision until an hour

later. They had three hours earlier, however, alerted all officers

to the fact that Lord was considered dangerous.            At about the same

time as this parking lot meeting, Detective Perkins requested that

the Bangor Police Department send an officer to Acadia Hospital in


                                     - 9 -
Bangor to look for Lord. The request was not that the officer

simply call the hospital to find out if Lord was there.       There is

no evidence as to whether the state police could have requested

the Bangor police to provide protection to Irish.

           Around 2:00 AM, not having received any response to her

request for protection, Irish again called Detective Perkins.

Detective Perkins, for the first time, told her that his supervisor

had denied the request an hour earlier.     He said the police would

continue looking for Lord.

           Also around 2:00 AM,    Detectives Perkins and Fowler met

Detective Jonah O’Rourke and Detective Trooper Corey Hafford at a

gas station in Sherman, Maine, about ten miles from the Irish home,

to search the dumpster for evidence of the original rape.      Not one

of these four officers was sent to protect Irish at her mother's

home.

           Around   2:30   AM,   Sergeant   Crane   went   home.     An

investigator from the fire marshal's office remained near the scene

of the fire until approximately 2:30 or 3:00 AM.     The officers who

were searching near the Sherman gas station left the area around

3:00 AM.   Also around 3:00 AM, the detectives left the area.

           Sergeant Crane admitted that he did not believe there

were any state police resources in the area between 3:00 and       4:00

AM.   No one told the plaintiffs that the detectives, let alone all

police units, had left the area.


                                 - 10 -
            Around 3:00 or 4:00 AM, Kimberly Irish, Brittany Irish's

mother, contacted the MSP through their "800 number." She said

that she would like to come with Brittany and Hewitt in her car to

the MSP parking lot to remain there overnight for protection.               An

unidentified MSP employee advised her not to come to the station,

that leaving her house "would be a dangerous mistake," and that

the MSP had "officers in the vicinity" who could respond quickly

to   any   problems    that   arose.     A   jury   could   find   that   these

statements were not true, and that each piece of that advice was

relied on by the plaintiffs and increased the risk to them.

Kimberly Irish never saw any police presence near her residence,

despite keeping watch through the night.

            Between 4:00 and 4:40 AM on July 17, Kary Mayo, a

resident of Silver Ridge, Maine, reported that someone had attacked

him with a hammer and stolen his truck and guns just six miles

(and twelve minutes) from the Irish home.             An officer responded

out of Houlton.       The state police did not notify the plaintiffs of

that nearby attack (which was committed by Lord).

            Within about an hour, Lord drove Mayo's truck to the

Irish home.    Lord fired one round with Mayo's shotgun at the front

door to break the lock, which hit Brittany Irish in the arm.               The

door remained locked, so Lord kicked down the door. Lord entered

the house, saw Hewitt on the couch, and shot Hewitt nine times

while Brittany Irish watched.          Brittany ran from the room and into


                                   - 11 -
the bathroom to hide.      Kimberly Irish had already been in the

bathroom brushing her teeth.      They unsuccessfully attempted to

lock the door.     With the help of her mother, Brittany Irish had

climbed partway through the bathroom window to escape when Lord

came through the bathroom door. Kimberly Irish pushed Brittany the

rest of the way through the bathroom window, and Brittany started

running. Lord fired twice as Brittany was escaping and struck

Kimberly in the arm.

             Moments later, Brittany Irish was able to jump into the

truck of Carleton Eddy, a passing motorist.    Lord saw her get into

the truck and managed to jump into the bed of the truck as Eddy

began to pull away.      From the bed of the truck, Lord shot Eddy

three times in the neck and then pulled Brittany out of the truck

and took her back to the pickup truck he had stolen from Mayo.

They drove away. The police did not free Irish or apprehend Lord

until around 2:00 PM on July 17, about nine hours after the

shooting.2


     2    The police first found Lord and Irish at 5:41 AM, but
Lord escaped by repeatedly shooting at the pursuing officers,
threatening to kill Brittany if the police did not back off, and
driving onto an "impassable" road.
          Around 6:20 AM, Lord and Irish arrived at a woodlot in
Lee, Maine. Lord and Irish encountered Kevin Tozier and Clayton
McCarthy, and Lord asked them if he could borrow one of their
cellphones. One of the men lent his cellphone to Lord. Tozier
noticed Irish's wound and asked about it. Lord responded by fatally
shooting Tozier in the chest several times. As McCarthy ran away,
Lord shot him too.


                                - 12 -
            Only after Lord's capture did the MSP post an officer at

the Irish home. They did so for two days to protect the crime

scene.

                Evidence as to Proper Police Practices

            There is evidence that the detectives failed to follow

proper MSP procedure and state law in several respects.

            The parties agree that the optimal time to contact an

offender is at the end of an investigation, once all the facts are

in order.    Specifically as to sexual assault charges, the Director

of Training for the Maine Criminal Justice Academy, which trains

MSP officers, testified that the reasonableness of an officer's

response to a report of sexual assault depends on the severity of

the underlying assault, whether the suspect has made threats

against the victim, whether the suspect has been convicted of a

felony, and whether the suspect has a violent history.

            The plaintiffs' expert, D.P. Van Blaricom, explained

that there is a standard of care "that the first priority is the

victim's safety and you would do nothing that would put her safety

at risk."    He concluded that the defendants violated this standard


     Lord then stole a pulp truck, abandoned it in Haynesville,
Maine, stole an ATV, and travelled with Irish to Weston, Maine.
In Weston, he stole a Ford F-150 truck and drove to Houlton. At
some point during this flight, Lord raped Irish again. The police
finally apprehended Lord around 2:00 PM when his uncle reported
that Lord was in Houlton.




                                - 13 -
of care in their investigation. In his expert report, Van Blaricom

stated that "[a]fter a report of kidnapping and sexual assault,

the first priority is to locate the suspect and take him into

custody."     He testified that "if you're trying to safeguard the

victim, you don't tip off the suspect when she's already said he'd

threaten her," and        "contacting the suspect and leaving a phone

message is the last thing I would consider doing." Instead, "[t]he

suspect is typically the last to be interviewed," and "[w]anting

to 'hear his side of the story' at the outset is fundamentally

dysfunctional and a poor investigative practice."           In his expert

opinion,    the   first     police    contact    with   Lord,   given   the

circumstances, should have been an arrest.

            Van Blaricom also testified that "[t]he first thing you

do when you've got a suspect is run a criminal history" because it

is "absolutely fundamental . . . to know as much as you can about

your suspect."     The defendants admit that a criminal background

check is "fundamental" and is the first thing officers should do

when they have identified a suspect.            The officers here did not

perform a background check until after the barn fire. This was

long after leaving a voicemail message asking Lord to contact the

detectives.

            Officers of the MSP, including the defendant detectives,

are trained on the proper response to domestic violence complaints

as set forth in Maine statute, Me. Stat. tit. 19-A § 4012, and


                                     - 14 -
MSP's "DV Policy M-4" ("M-4").           M-4 instructs that an officer "is

to try to determine" whether the suspect has a history of domestic

violence.     Maine law and Section E of M-4 both state that an

"officer shall immediately use all reasonable means to prevent

further abuse." Me. Stat. tit. 19-A, § 4012(6).                   This includes

"[r]emaining on the scene [of a domestic violence incident for] as

long as the officer reasonably believes there is a danger to the

physical safety of that person without the presence of a law

enforcement   officer."

  adds       that   "[i]n

circumstances    in   which   it   is     necessary   for   a     DV   victim    to

temporarily or permanently leave a location where he or she has

been living, [an officer shall] assist[] the DV victim in locating

lodging with family, friends, in public accommodations, or at a DV

shelter/safe home."

                       II. District Court Opinion

            The district court concluded that the plaintiffs had

presented triable issues of fact as to whether Detectives Fowler

and Perkins had violated the plaintiffs' substantive due process

rights   under   a    state-created      danger   theory    and    whether      the

detectives' actions "shock[ed] the conscience."3                  Irish, 436 F.

Supp. 3d at 423-24, 428.



     3    The district court also entered summary judgment in
favor of Sergeant Darrin Crane, and plaintiffs do not appeal that
portion of the district court order.


                                       - 15 -
             The   district   court    began   by   acknowledging   that   the

plaintiffs have suffered constitutional deprivations of life and

liberty.

     In its grant of summary judgment on the

ground of qualified immunity, the court used the Third Circuit

state-created danger test laid out in Sanford v. Stiles, 

, 304-05 (3d Cir. 2006). 

n.148.

The court made three essential holdings.            First, it held that the

plaintiffs had presented sufficient evidence for a jury to find

that the voicemail was an affirmative act that had enhanced the

danger to the plaintiffs.

        Next, because the

detectives had time to make unhurried judgments, the plaintiffs

needed to show that the defendants had acted with deliberate

indifference to show conscience-shocking behavior.

Finally, the court determined that a reasonable jury could find

that leaving the voicemail was "deliberately indifferent to the

point of being conscience-shocking in light of the actions [the

detectives] took before and after leaving a voicemail for Mr.

Lord."

             As to qualified immunity, the court reasoned that the

existence of the state-created danger doctrine was not clearly

settled law in the First Circuit because this court had never found

the theory applicable to the specific facts presented by the case

before it.

Recognizing that a consensus of persuasive

authority from other circuits was sufficient to clearly establish


                                      - 16 -
the doctrine, it nevertheless declined to hold that the doctrine

was clearly established.

That was because in its view,

the Fifth and Eleventh Circuits had rejected the state-created

danger theory, and it was "not within [the district court's]

purview to select between the majority and minority rules" or

"which among the majority formulations . . . [to] adopt."

appealed.            The defendant officers

have not appealed.

        III. Contours of the State-Created Danger Doctrine

           We review a district court's grant of summary judgment

de novo.   López-Santos v. Metro. Sec. Servs., 

, 11 (1st

Cir. 2020).      In doing so, we read the facts in the light most

favorable to the non-moving party (here, the plaintiffs), granting

all reasonable inferences in their favor.

  Clause      of   the    Fourteenth   Amendment

provides that "[n]o State shall . . . deprive any person of life,

liberty, or property, without due process of law." U.S. Const.

amend. XIV, § 1.    While the Supreme Court has said that in general,

"a   State's   failure   to   protect   an    individual      against   private

violence simply does not constitute a violation of the Due Process

Clause," DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 

, 197 (1989), it has also suggested that when the state

creates the danger to an individual, an affirmative duty to protect

might arise. See

("While the State may have been aware


                                  - 17 -
of the dangers that [the plaintiff] faced in the free world, it

played no part in their creation, nor did it do anything to render

him any more vulnerable to them.").

           Nine other circuits have since recognized the state-

created danger doctrine.     See Okin v. Vill. of Cornwall-on-Hudson

Police Dep’t, 

, 428 (2d Cir. 2009); 

; Doe v. Rosa, 

, 439 (4th Cir. 2015); Jane

Doe v. Jackson Loc. Sch. Dist. Bd. of Educ., 

, 932

(6th Cir. 2020); D.S. v. E. Porter Cnty. Sch. Corp., 

,

798 (7th Cir. 2015); Fields v. Abbott, 

, 891 (8th Cir.

2011); Kennedy v. City of Ridgefield, 

, 1066 (9th

Cir. 2006); Estate of B.I.C. v. Gillen, 

, 1173 (10th

Cir. 2013); Butera v. District of Columbia, 

, 652 (D.C.

Cir. 2001).

           The   circuits   that   recognize   the    doctrine    uniformly

require   that   the   defendant   affirmatively     acted   to   create   or

exacerbate a danger to a specific individual or class of people.

See, e.g., 

; 

-

64.   Each circuit requires that the defendant's acts be highly

culpable and go beyond mere negligence.4        See, e.g., Butera, 235


      4   Most circuits require that the defendant's actions
"shock the conscience." The Ninth Circuit does not use the phrase
"shock the conscience" as it has opined that the phrase "sheds
more heat than light on the thought process courts must undertake
in cases of this kind."    

(quoting
L.W. v. Grubbs, 

, 900 (9th Cir. 1996)). That court


                                   - 18 -
F.3d at 651; see also Cnty. of Sacramento v. Lewis, 

,

847 (1998) ("[T]he substantive component of the Due Process Clause

is violated by executive action only when it 'can properly be

characterized    as   arbitrary,   or    conscience     shocking,   in   a

constitutional    sense.'"   (quoting    Collins   v.   City   of   Harker

Heights, 

, 128 (1992))).      The plaintiff also must show

a causal connection between the defendant's acts and the harm.

See, e.g., 

; 

.

          This circuit has repeatedly outlined the core elements

of the state-created danger doctrine as they have been articulated

in other circuits.     This court has stated that in order to be

liable under the state-created danger doctrine, the defendant must

"affirmatively act[] to increase the threat to an individual of

third-party private harm." Coyne v. Cronin, 

, 287 (1st

Cir. 2004); see also Ramos-Piñero v. Puerto Rico, 

, 55

n.9 (1st Cir. 2006); Rivera v. Rhode Island, 

, 37 (1st

Cir. 2005).     A government official must actually have created or

escalated the danger to the plaintiff and the plaintiff cannot

have   "voluntarily assume[d] those risks." Vélez-Díaz v. Vega-

Irizarry, 

, 81 (1st Cir. 2005).         The danger cannot be




requires that the defendant act with at least deliberate
indifference to a "known or obvious danger."

"to the general public," it must be "specific" in some "meaningful

sense" to the plaintiff.             

.           The

official's acts must cause the plaintiff's injury.                 

.       The   defendant's    actions   must    "shock   the

conscience," and where a state actor had the "opportunity to

reflect and make reasoned and rational decisions, deliberately

indifferent behavior may suffice to 'shock the conscience.'"5

see also Irish 

.                To show deliberate

indifference, the plaintiff "must, at a bare minimum, demonstrate

that [the defendant] actually knew of a substantial risk of serious

harm . . . and disregarded that risk."              

.

In     evaluating        whether   the    defendant's   actions    shocked   the

conscience, we also consider whether the defendants violated state

law or proper police procedures and training.                See Irish 

; Marrero-Rodríguez v. Municipality of San Juan, 

, 500-02 (1st Cir. 2012).

                Our decision in Rivera v. Rhode Island, which predates

the defendant officers' conduct here, provided this circuit's most

comprehensive exposition of the state-created danger doctrine and

its elements. 

.




       5  The defendants do not argue in their brief that the
plaintiffs must show more than deliberate indifference to make
their claim.


                                         - 20 -
             In Rivera, Charles Pona and his associates repeatedly

threatened      to    kill   fifteen-year-old        Jennifer     Rivera    if    she

testified at Pona's murder trial.

She told the police

about these threats many times, and they promised to protect her.

       An associate of Pona shot and killed Rivera the day

before she was scheduled to testify.

    Rivera's mother,

Iris   Rivera,       brought   a   §    1983     claim    against   the     officers

investigating the murder under the state-created danger doctrine.

This court reviewed the contours of the doctrine as

described above, and then held that Iris Rivera had not made out

a viable state-created danger claim against the defendant officers

because   the    acts    taken     by   defendants       were   essential    to   the

investigation and performed appropriately.

    This case

presents different facts that require us to recognize the state-

created danger doctrine and conclude that a reasonable jury could

find that a claim has been validly presented on this evidence.

             We now state the necessary components for the viability

of such a claim.       In order to make out a state-created danger claim

in the First Circuit, the plaintiff must establish:

             (1) that a state actor or state actors affirmatively

             acted to create or enhance a danger to the plaintiff;

             (2) that the act or acts created or enhanced a danger

             specific to the plaintiff and distinct from the danger

             to the general public;


                                        - 21 -
          (3) that the act or acts caused the plaintiff's harm;

          and

          (4) that the state actor's conduct, when viewed in total,

          shocks the conscience.

                 (i) Where officials have the opportunity to make

                 unhurried judgments, deliberate indifference may

                 shock the conscience, particularly where the state

                 official performs multiple acts of indifference to

                 a rising risk of acute and severe danger.      To show

                 deliberate indifference, the plaintiff must, at a

                 bare   minimum,    demonstrate   that   the   defendant

                 actually knew of a substantial risk of serious harm

                 and disregarded that risk.

                 (ii) Where state actors must act in a matter of

                 seconds or minutes, a higher level of culpability

                 is required.

          We apply this test to the two issues before us.

                IV. Substantive Due Process Violation

          We agree with and do not restate the district court's

reasoning that a jury could find the plaintiffs' substantive due

process rights were violated.

          The defendants argue, as though context does not matter,

that Rivera established that the use of basic law enforcement

investigative tools cannot ever serve as the affirmative act


                                   - 22 -
underlying a state-created danger claim.          Rivera established no

such thing; rather it held only that the use of law enforcement

tools in that case did not provide an adequate basis for the state-

created danger claim there. See

            That was because

interviewing and subpoenaing Jennifer Rivera were both necessary

steps of the investigation that could not reasonably be avoided

and were performed appropriately. See

is not

that the defendants should not have contacted Lord at all, but

that the manner in which the officers did so -- despite having

been   warned   about   Lord's   threats   of   violence   and   their   own

acknowledgement that contacting him would increase the risks to

Irish and her family -- was wrongful.

           The defendants next argue that the officers' violations

of state law and MSP policy cannot serve as the basis of a state-

created danger claim.     That is not the plaintiffs' argument.          The

plaintiffs' argument is that these violations are, at the very

least, relevant to determining the conscience-shocking nature of

the defendants' conduct and the qualified immunity inquiry.              The

plaintiffs' position is well based on our prior opinions of which

the defendant officers had notice.         Those opinions are described

below.

           The defendants also argue that no jury could find the

officers' conduct shocked the conscience.        We rely on the district




                                  - 23 -
court's reasoning as to why that argument fails.                See 

.

                           V. Qualified Immunity

            Government officials sued in their individual capacities

are immune from damages claims unless "(1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of

their conduct was 'clearly established at the time.'" District of

Columbia v. Wesby, 

, 589 (2018) (quoting Reichle v.

Howards, 

, 664 (2012)). The defendants' argument turns

on the clearly established prong.

            The   test    to   determine   whether    a   right    is   clearly

established asks whether the precedent is "clear enough that every

reasonable official would interpret it to establish the particular

rule the plaintiff seeks to apply" and whether "[t]he rule's

contours [were] so well defined that it is clear to a reasonable

officer   that    his    conduct   was   unlawful    in   the    situation   he

confronted."

(internal quotation marks and citations

omitted).

            A rule is clearly established either when it is "dictated

by 'controlling authority' or 'a robust "consensus of cases of

persuasive authority."'"

(quoting Ashcroft v. al-

Kidd, 

, 741-42 (2011)).         A "robust consensus" does not

require the express agreement of every circuit.                 Rather, sister

circuit law is sufficient to clearly establish a proposition of


                                   - 24 -
law when it would provide notice to every reasonable officer that

his conduct was unlawful.      See Wilson v. Layne, 

, 616-

18 (1999); 

.

             "[T]he salient question . . . is whether the state of

the law [at the time of the defendants' conduct] gave [them] fair

warning that their alleged treatment of [the plaintiffs] was

unconstitutional."    Hope v. Pelzer, 

, 741 (2002); see

also Rainsberger v. Benner, 

, 652 (7th Cir. 2019)

("[T]he relevant question is what a well-trained officer would

have thought about the lawfulness of that action." (emphasis in

original)). "[O]fficials can still be on notice that their conduct

violates established law even in novel factual circumstances."

; see also Taylor v. Riojas, No. 19-1261,

, at *2 (Nov. 2, 2020) (holding that qualified

immunity should not be granted when "any reasonable officer should

have   realized    that   [the   conduct   at   issue]   offended    the

Constitution"); Safford Unified Sch. Dist. No. 1 v. Redding, 

, 377–78 (2009); Brosseau v. Haugen, 

, 199

(2004) ("Of course, in an obvious case, these standards can

'clearly establish' the answer, even without a body of relevant

case law."); Browder v. City of Albuquerque, 

, 1082–

83 (10th Cir. 2015) ("[T]he more obviously egregious the conduct

in   light   of   prevailing   constitutional   principles,   the   less




                                 - 25 -
specificity is required from prior case law to clearly establish

the violation." (citations omitted)).

          The Supreme Court has established that cases involving

materially similar facts are not necessary to a finding that the

law was clearly established.    

.   The circuits

have followed that rule.       See Suboh v. Dist. Att'y's Off. of

Suffolk Dist., 

, 94 (1st Cir. 2002); Dean for & on

behalf of Harkness v. McKinney, 

, 418 (4th Cir. 2020);

Cantu v. City of Dothan, 

, 1232 (11th Cir. 2020);

Vinyard v. Wilson, 

, 1355 (11th Cir. 2002);     Williams

v. Strickland, 

, 770 (4th Cir. 2019); 

–83.

          A defendant's adherence to proper police procedure bears

on all prongs of the qualified immunity analysis.        Irish 

.6   When an officer violates the Constitution, state

law, of course, provides no refuge.      A lack of compliance with

state law or procedure does not, in and of itself, establish a

constitutional violation, but when an officer disregards police



     6    Defendants' argument that the violations of proper
police procedure and state law are "not relevant to the qualified
immunity analysis" is both incorrect and troubling.           The
defendants' argument is tantamount to saying that violations of
state law and proper police procedures have no bearing on whether
a reasonable officer would know his conduct was unlawful. Such an
argument is pernicious; the driving principle behind it would
encourage government officials to short-cut proper procedure and
established protocols.


                                - 26 -
procedure, it bolsters the plaintiff's argument both that an

officer's conduct "shocks the conscience" and that "a reasonable

officer in [the officer's] circumstances would have believed that

his conduct violated the Constitution." 

n.4

(quoting Jennings v. Jones, 

, 20 (1st Cir. 2007)); see

also

677 F.3d at 502

(stating      that     defendant's       "violation        of     several    training

protocols" weighed in favor of plaintiffs' claim); 

(relying on officer's violation of training, department

policy, and state law to hold that a reasonable jury could conclude

that officer's conduct was conscience shocking).

              The    defendants'      main    argument     is   that   because   this

circuit    to   date     has    not   recognized     the    state-created     danger

doctrine, the law was not clearly established.                      That is simply

incorrect.      The Supreme Court has stated that clearly established

law can be dictated by controlling authority or a robust consensus

of persuasive authority.              

; see also

McCue v. City of Bangor, 

, 64 (1st Cir. 2016) (stating

that the agreement of four circuits was sufficient to establish

threshold for excessive force); Maldonado v. Fontanes, 

, 270-71 (1st Cir. 2009) (holding that a consensus of three

circuits was sufficient to establish that the killing of a pet was

a   seizure     within    the    meaning      of   the   Fourth    Amendment).   The

widespread      acceptance       of     the    state-created        danger   theory,


                                        - 27 -
described above, was sufficient to clearly establish that a state

official may incur a duty to protect a plaintiff where the official

creates or exacerbates a danger to the plaintiff.

          The defendants' reliance on Soto v. Flores, 

(1st Cir. 1997), is also misplaced.              In Soto, this court

concluded that the state-created danger doctrine was not clearly

established.

      The broad acceptance of the doctrine

"militate[d]    in    favor   of   finding   that   there   [was]   clearly

established law in this area," but two circumstances prevented the

court from holding that the law was clearly established.

noted that at the time of the defendants' conduct

in Soto, the First Circuit had never "discuss[ed] the contours of

[the state-created danger] doctrine."

relied on the fact that while the Third Circuit had then recently

"comprehensively described" the state-created danger theory, the

history of the doctrine was "uneven," and that only "more recent

judicial opinions . . . ha[d] begun to clarify the contours" of

the doctrine.

had changed by the time Detective

Perkins left the voicemail for Anthony Lord.           By July 2015, this

court 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.       And our sister circuits' law developed as

well in the decades since Soto.




                                   - 28 -
          The officers argue that because the Fifth and Eleventh

Circuits have rejected the state-created danger doctrine,7 the

doctrine cannot be clearly established.     Again, as a proposition

of law this is wrong.   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. See Pro v. Donatucci, 

, 1292 (3d Cir. 1996).

After Rivera, the defendants could not reasonably have believed

that we would flatly refuse to apply the state-created danger

doctrine to an appropriate set of facts.

          Rivera was a critical warning bell that officers could

be held liable under the state-created danger doctrine when their

affirmative acts enhanced a danger to a witness.     This court did

not simply dismiss Rivera's claim without analysis, as would have

been appropriate if the state-created danger doctrine could never

apply to any set of facts in this circuit.          Instead, Rivera

outlined the elements of the state-created danger doctrine and

performed a nuanced analysis of why each particular action of the



     7    We disagree with the defendants that the Fifth and
Eleventh Circuits have rejected the state-created danger doctrine.
Though the Eleventh Circuit no longer has a discrete "state-created
danger doctrine," it also does not bar recovery in cases like this
one. See Waddell v. Hendry Cnty. Sheriff's Off., 

1305-06 (11th Cir. 2003). And the Fifth Circuit has not explicitly
foreclosed the possibility that it might recognize the doctrine in
the future. See Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex
rel. Keys, 

, 865-66 (5th Cir. 2012) (en banc).


                               - 29 -
defendants was not the type of affirmative act covered by the

.      Rivera warned that if an officer

performed a non-essential affirmative act which enhanced a danger,

a sufficient causal connection existed between that act and the

plaintiff's     harm,   and   the     officer's     actions   shocked   the

conscience, the officer could be held liable for placing a witness

or victim in harm's way during an investigation.

            Defendants also argue that they are immune from suit

because no factually similar cases alerted them that their conduct

was impermissible.      This too is incorrect.      As we have just said,

a general proposition of law may clearly establish the violative

nature of a defendant's actions, especially when the violation is

egregious. See 

; 

("That

there is little precedent imposing liability under these specific

circumstances does not necessarily mean that an officer lacks

notice that his conduct is unlawful.").           Not only is the argument

wrong, but its premise is wrong; there are factually similar

earlier cases.    Both were decided after Soto.

            In 2006, the Ninth Circuit faced a similar case.            In

Kennedy v. City of Ridgefield, Kimberly Kennedy reported that her

thirteen-year-old neighbor, Michael Burns, had molested her nine-

year-old 

.         Kennedy told the police

that Burns was violent and that she was afraid of how Burns would

respond to the allegations.

      The police promised


                                    - 30 -
to warn Kennedy before contacting Burns.

     Instead,

the    investigating     officer   told      Burns's    mother    about      the

allegations against her son fifteen minutes before telling Kennedy

that he had contacted the Burns family.

to but did not provide protection that night.

morning, burns broke into Kennedy's house and shot both her and

her husband while they slept.

held that

there was a triable issue of fact as to whether the officer had

violated Kennedy's substantive due process rights under the state-

created danger theory.

         The officer had "created an

actual, particularized danger Kennedy would not otherwise have

faced."

    Going to the Burns residence prematurely

and reassuring Kennedy with false promises of increased security

were acts of deliberate indifference.

     The Ninth

Circuit also held that the law was clearly established.

           Another     factually   similar    case     was   decided    by   the

Seventh Circuit in 1998.      In Monfils v. Taylor, 

(7th

Cir. 1998), Thomas Monfils tipped off the police that his co-

workers intended to steal property from their workplace.

   Despite Monfils' pleas to keep the recording of his tip

secret, the police released the recording to one of his co-workers,

Keith Kutska.

the police that Kutska was

"known to be violent," "crazy," and "a biker type with nothing to


                                   - 31 -
lose" and that Monfils "was afraid that . . . [Kutska] would 'take

him out.'"

  Kutska murdered Monfils shortly after

the police released the recording.

    Relying on a Sixth

Circuit case, Kallstrom v. City of Columbus, 

(6th

Cir. 1998), in which a city was held liable under the state-created

danger    doctrine   for    releasing   the   contact     information   of

undercover police officers, the Seventh Circuit concluded that the

defendant officer was not entitled to qualified immunity on the

state-created danger claim.      

, 518.

             These cases gave the defendants notice that they could

be held liable for violating the Due Process Clause if, after

receiving a report of criminal activity, they effectively alerted

the suspect that he was under investigation in a manner that

notified the suspect who the reporting individual was, despite

knowing that the suspect was likely to become violent toward that

person.   

.        The officers were also on

notice that failing to take steps to mitigate the danger they had

created and misleading the victim about the level of police

protection she had could likewise give rise to a constitutional

violation under the state-created danger doctrine.           

.

             On this record, a reasonable jury could conclude that as

much occurred here.        The plaintiffs allege that the defendants,

even in the face of Irish's expressed fear that Lord would react


                                  - 32 -
violently, contacted him in a manner that a reasonable jury could

find notified him that Irish had reported him to the police.           The

plaintiffs also allege that the defendants failed to convey her

request for protection to their superiors for several hours and

further failed to inform her in a timely fashion that the request

had been denied.    A jury could also conclude that the defendants

played a role in the decision to withdraw all resources from the

area without telling the plaintiffs that they had done so, thereby

allowing the plaintiffs to believe more protection was available

than was actually true.      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, and that they thereby acted with the requisite mental

state to fall within the ambit of the many cases holding that a

violation of the Due Process Clause requires behavior that "shocks

the conscience."    See, e.g., 

; 

; 

.        Whether the jury will

or should conclude as much is, of course, not a question for this

court, but it was clearly established in July 2015 that such

conduct on the part of law enforcement officers, if it occurred,

could give rise to a lawsuit under § 1983.




                                 - 33 -
                                  VI.

          For the reasons stated above, we reverse the grant of

summary judgment, affirm the district court's conclusion that a

jury   could   conclude   that    defendants   violated   plaintiffs'

substantive due process rights, and remand for further proceedings

consistent with this opinion.     Costs are award to the appellants.




                                 - 34 -