United States Court of Appeals For the First Circuit

No. 23-2026

JOHN COHEN, as next friend and personal representative of the Estate of Eric Cohen,

Plaintiff, Appellant,

v.

CITY OF PORTLAND; CHRISTOPHER GERVAIS, individually and in his official capacity as Sergeant, Portland Police Department; MICHAEL RAND, individually and in his official capacity as Sergeant, Portland Police Department; RONALD GIROUX, JR., individually and in his official capacity as a Fireman, Portland Fire Department,

Defendants, Appellees.

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

[Hon. Nancy Torresen, U.S. District Judge]

Before

Kayatta, Thompson, and Gelpí, Circuit Judges.

Verne E. Paradie, Jr. for appellant. Kasia S. Park, with whom Susan M. Weidner and Drummond Woodsum were on brief, for appellees.

August 1, 2024 KAYATTA, Circuit Judge. During an apparent psychotic

episode, Eric Cohen attacked his girlfriend and fled into the cold

waters of Portland's Back Cove. After around a half hour, Cohen

became hypothermic and drowned. His estate sued the City of

Portland, as well as several members of the City's police and fire

departments. The estate claimed that the officers violated Cohen's

substantive due process rights by failing to rescue him from a

state-created danger. The estate further claimed that the City

violated the same due process rights when it failed to train its

employees in crisis intervention techniques that could have saved

Cohen.

The district court dismissed the state-created danger

claims against two police officers under Federal Rule of Civil

Procedure 12(b)(6). After discovery, the court granted summary

judgment to a third defendant -- a firefighter -- who was also the

subject of a state-created danger claim. The court likewise

granted summary judgment to the City of Portland on the estate's

failure-to-train claim. The estate now appeals those rulings.

Seeing no error, we affirm. Our reasoning follows.

I.

We begin with the district court's order under

Rule 12(b)(6) dismissing the state-created danger claims against

two sergeants in the Portland Police Department -- Christopher

Gervais and Michael Rand. Our review is de novo. See Blackstone

- 2 - Realty LLC v. F.D.I.C.,

(1st Cir. 2001). That

means "we must accept as true the factual allegations of the

complaint and draw all reasonable inferences in favor of [Cohen's

estate]."

A.

At or around 1 p.m. on April 12, 2020, the Portland

Police Department received an emergency call. The caller said

that Cohen -- apparently in the throes of a psychotic episode --

had attacked his girlfriend, stripped off his clothes, and fled

the scene. After arriving at the scene of the emergency call,

several officers (who are not defendants in this case) chased Cohen

into the waist-deep waters of the Back Cove.1 The Back Cove is an

estuary basin on the northern side of the Portland peninsula. When

Cohen entered the Back Cove at around 1:23 p.m., the water was

approximately forty-one degrees Fahrenheit.

Shortly after Cohen entered the Back Cove, Gervais asked

the Portland Fire Department for a rescue boat to retrieve Cohen.

Gervais drove across the city to get the boat, a trip that took

1 The district court later found that Cohen had "several options other than entering the water," and that the pursuing officers did not, in fact, chase him into the Back Cove. However, given that Cohen's estate appeals a dismissal under Rule 12(b)(6), we recount the version of the story that appears in the complaint. See Blackstone Realty LLC,

. In any event, the estate does not argue on appeal that any defendant should be liable for chasing Cohen into the Back Cove.

- 3 - him around eleven minutes. The rescue boat set off at 1:34 p.m.

with Gervais and two other officers on board.

Meanwhile, Rand arrived at the Back Cove at 1:33 p.m.

Upon his arrival, Rand spoke with police officer Blake Cunningham,

a former U.S. Coast Guard rescue swimmer. Cunningham said that if

Cohen "beg[an] to struggle," he would "go in and [re]cover him."

Rand responded: "We should have the fire boat right off, but I

understand what you gotta do." At 1:40 p.m., Cunningham remarked

that Cohen would likely drown soon. Rand replied, "Oh, I know,"

but added that he did not want Cunningham retrieving Cohen without

a life jacket.2 He then began looking for a life jacket to give

Cunningham. At 1:42 p.m., Cunningham "reported that [Cohen] had

gone under water," and commented "[h]e is dead."

Three minutes later, at 1:45 p.m., Cunningham said that

if Rand would "give [him] a life jacket, [he would] go save this

guy's life." Rand authorized Cunningham to enter the water, but

then retracted his order when the rescue boat reported that it was

2 Rand's statement that Cunningham should wear a life jacket does not appear in the complaint. Instead, it appears in body camera footage that Cohen's estate attached to its opposition to the defendants' motion to dismiss. The district court considered the footage at the motion-to-dismiss stage because neither party disputed its authenticity. See Watterson v. Page,

(1st Cir. 1993) (explaining that courts ordinarily do not consider documents not attached to the complaint or incorporated therein when reviewing a motion to dismiss, but noting exceptions for, among other things, documents "the authenticity of which [is] not disputed by the parties"). No party challenges that decision here, so we consider the officers' body camera footage as well.

- 4 - 100 feet from Cohen. At around the same time, Rand radioed fire

dispatch to determine if an ambulance was nearby, only to find

that no ambulance had been assigned. Dispatch assigned an

ambulance at 1:46 p.m.

At 1:47 p.m., Gervais reported that the rescue boat had

pulled Cohen from the water. Cohen had been face down in the

waist-deep water, and Gervais could not find a pulse. Neither

Gervais nor any other officer on the rescue boat attempted to

resuscitate Cohen. Two minutes later, the boat arrived on shore

with Cohen's body. No medical or emergency equipment was on shore.

A firefighter covered Cohen with his jacket, but no officer tried

to revive or otherwise tend to Cohen. An ambulance arrived at

1:53 p.m., and paramedics administered CPR. The ambulance left

the Back Cove around a half hour later. Cohen was pronounced dead

at Maine Medical Center at 2:52 p.m. The medical examiner ruled

that Cohen died from hypothermia and drowning.

B.

Cohen's estate sued Rand and Gervais under

and its Maine analogue. The estate alleged that the

officers deprived Cohen of his life -- in violation of the Due

Process Clause -- by failing to rescue him from a state-created

danger. "The disposition of a [section] 1983 claim also controls

a claim under the [analogous Maine statute]." Berube v. Conley,

- 5 -

(1st Cir. 2007). Accordingly, we focus our

analysis on the federal section 1983 claim.

The Due Process Clause does not create an "affirmative

right to governmental aid, even where such aid may be necessary to

secure life, liberty, or property interests of which the government

itself may not deprive the individual." DeShaney v. Winnebago

Cnty. Dep't of Soc. Servs.,

(1989). However, a

plaintiff may hold a state officer liable for "failing to protect

plaintiffs from danger created or enhanced by [the officer's]

affirmative acts." Irish v. Fowler,

(1st Cir.

2020) ("Irish II"). To make out a state-created danger claim, a

plaintiff must establish that: (1) a state actor "affirmatively

acted to create or enhance a danger to the plaintiff," (2) the

challenged acts "created or enhanced a danger specific to the

plaintiff and distinct from the danger to the general public,"

(3) the challenged acts "caused the plaintiff's harm," and (4) the

state actor's conduct, "when viewed in total, shocks the

conscience."

. With these requirements in mind, we

consider the claims against each police sergeant in turn.

1.

Gervais appears twice in the complaint. First, at

1:23 p.m., Gervais drove eleven minutes to retrieve a rescue boat.

Then, at 1:47 p.m., Gervais retrieved Cohen's body from the water,

but did not perform CPR or any other emergency procedure.

- 6 - Neither piece of conduct created or affirmatively

enhanced the danger to Cohen. Rather, the danger to Cohen emerged

when he entered the icy waters of the Back Cove. There is no

allegation that Gervais forced Cohen into the water, prevented him

from leaving the water, or drove him into the water through

"deliberate indifference" for his safety. Irish II,

. If anything, Gervais's retrieval of the rescue boat was an

attempt to mitigate the danger that Cohen faced.

At the very worst, the complaint alleges facts that might

show that Gervais acted negligently by not retrieving the boat or

performing CPR quickly enough. But it is well-settled that "mere

negligence [is] insufficient to maintain a claim of substantive

due process violation." Irish v. Maine,

(1st

Cir. 2017) ("Irish I"). The estate suggests that Gervais's delay

in performing CPR deviated from police protocol, and that a

departure from police protocol can be independently sufficient to

support a state-created danger claim under Irish I. However,

Irish I never held that negligent deviation from police procedure

is -- on its own -- enough to support a state-created danger claim.

See

at 523–24 (remanding for further discovery on several

issues, including whether defendant officers "depart[ed] from

established police protocol or training").

Taking a slightly different tack, Cohen's estate argues

that Gervais enhanced the danger to Cohen when he "deliberate[ly]

- 7 - cho[se]" not to perform CPR promptly. The estate's view is

basically that an officer must attempt to rescue a plaintiff from

a danger that the officer did not create, because any undue

recalcitrance on the officer's part would enhance the danger to

the plaintiff. This is just another way of saying that a plaintiff

has an affirmative right to government aid in the face of a

preexisting danger -- a view that DeShaney squarely rejects. 489

U.S. at 195–96; see also Callahan v. N.C. Dep't of Pub. Safety,

(4th Cir. 2021) ("[A]llowing continued exposure to

an existing danger by failing to intervene is not the equivalent

of creating or increasing the risk of that danger." (quoting Doe

v. Rosa,

(4th Cir. 2015))). Ultimately, the

estate's counterargument depends entirely on "recast[ing]

inactions and omissions as affirmative acts." Callahan,

.

We therefore affirm the district court's dismissal of

the state-created danger claim against Gervais.

2.

The state-created danger claim against Rand fares no

better. In its brief, the estate makes three arguments for

concluding otherwise. First, the estate stresses that Rand did

not attempt to rescue Cohen or contact a crisis intervention

specialist. Second, the estate complains that Rand did not arrange

for an ambulance or emergency medical equipment upon Cohen's

- 8 - removal from the water. Third, the estate argues that Rand should

be liable because he prevented Cunningham from rescuing Cohen.

The estate's first two arguments presume that Rand had

a duty to rescue Cohen. But Cohen had already been in the water

for ten minutes before Rand arrived at the Back Cove. As we have

explained, given these facts, Rand had no constitutional duty to

undertake the actions that he opted against. See, e.g., DeShaney,

; Callahan,

.

That leaves the estate's argument that Rand

affirmatively enhanced the danger to Cohen by preventing

Cunningham from entering the water without a life jacket. This

argument presumes that Rand had a duty to let Cunningham attempt

a rescue. Yet, that presumption is likely wrong. If Rand had no

individual duty to interrupt Cohen's "continued exposure to an

existing danger," see Callahan,

, it follows that

he also had no duty to order another officer to do so. In any

event, Rand's requirement that Cunningham wear a life jacket before

entering forty-one-degree water to engage with an individual

undergoing a mental health crisis hardly shocks the conscience.

See Irish II,

; cf. Cnty. of Sacramento v. Lewis,

, 836–37, 854–55 (1998) (finding that an officer's

decision to engage in a reckless high-speed chase after a minor

speeding violation, eventually causing the death of a

sixteen-year-old motorcycle passenger, did not shock the

- 9 - conscience); Welch v. City of Biddeford Police Dep't,

,

78–81 (1st Cir. 2021) (Kayatta, J., dissenting) (citing Lewis to

highlight the strictness of the "shock the conscience" test, and

noting that the test is not merely a "form of re-labeled

negligence"). For that reason alone, the estate's argument fails.

We therefore also affirm the district court's dismissal

of the state-created danger claim against Rand.

II.

We now proceed to the district court's grant of summary

judgment to a Portland firefighter -- Ronald Giroux -- and the

City of Portland. Summary judgment is appropriate where the record

shows no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

We review the grant of summary judgment de novo, construing the

record in the light most favorable to Cohen's estate. See Hardy

v. Loon Mountain Recreation Corp.,

(1st Cir. 2002).

A.

We first consider the state-created danger claim against

Giroux. Giroux arrived at the Back Cove at 1:42 p.m. Cohen had

already been in the water for around twenty minutes. Giroux did

not know that Cohen was in the midst of a psychotic episode. He

knew only that Cohen had assaulted his girlfriend before fleeing

into the water. At 1:43 p.m., Giroux called out: "Tell him we're

gonna kick his ass if he gets out of that water." Giroux's only

- 10 - other involvement at the scene was to hand Rand a life jacket for

Cunningham.

Recall that to prevail on a state-created danger claim,

a plaintiff must show that the defendant's actions "caused the

plaintiff's harm." Irish II,

. This causation

analysis is "cabined within common law tort principles."

Gutierrez-Rodriguez v. Cartagena,

(1st Cir.

1989). The plaintiff must show that the defendant's actions were

both the but-for and proximate cause of his or her injury. See

Rodríguez-Cirilo v. García,

(1st Cir. 1997). And

the evidence of this causation may not be "unduly speculative."

Est. of Smith v. Salvesen,

(Me. 2016).

Here, the district court found that no reasonable jury

could conclude that Giroux's threat factually or legally caused

Cohen's death. See Cohen ex rel. Est. of Cohen v. City of Portland,

No. 2:21-CV-00267-NT,

, at *10 (D. Me. Nov. 27,

2023). Specifically, the court found that a jury could only find

causation via a series of increasingly speculative inferences:

[The jury] would have to find that Cohen could have made the deliberate choice to come to shore while in a state of alleged psychosis, would have been able to get himself to shore after having been in the cold water for twenty minutes already, could have done so faster than the rescue boat ultimately did, and would not have died of hypothermia or drowning if he had started for the shore at the time the comment was made.

- 11 -

In its brief on appeal, Cohen's estate does not engage

with the district court's persuasive causation analysis. Instead,

the estate simply asserts that Cohen was in shallow water, and

therefore "may have been able to come out of the water" absent

Giroux's threat. Even if we assume that Cohen could have come out

of the water in defiance of Giroux's bellowed threat, this

assumption would not justify finding that (1) he would have done

so, (2) he would have done so before the rescue boat arrived, or

(3) doing so would have prevented his eventual death. Cohen's

estate does not point to any record evidence that overcomes these

obstacles to a causation finding. And we can identify none.

Accordingly, we conclude that the district court properly granted

summary judgment to Giroux on causation grounds. We offer no

opinion on the district court's alternative bases for granting

summary judgment.

B.

Finally, the district court correctly granted summary

judgment to the City of Portland on the Cohen estate's

failure-to-train claim. This conclusion flows inexorably from our

finding that the district court properly dismissed Rand and Gervais

from the case under Rule 12(b)(6).

A municipality is liable under

"if [an]

employee has not been adequately trained and [a] constitutional

- 12 - wrong has been caused by that failure to train." City of Canton

v. Harris,

(1989). Thus, a finding of municipal

liability under a failure-to-train theory requires a predicate

constitutional violation by an individual defendant. See Young v.

City of Providence ex rel. Napolitano,

(1st Cir.

2005) ("The finding that [a municipal officer] violated [the

plaintiff's] constitutional rights is necessary for any finding

that the [municipality] is liable."). The municipality's

liability must "run through" the unconstitutional actions of its

untrained employee.

Here, the only employees that the estate says were

untrained are Rand and Gervais. The estate notes that both

officers were behind on their required annual crisis intervention

training. And the estate argues that both officers violated

Cohen's due process rights by failing to employ crisis intervention

techniques to rescue him. Basically, in the estate's view, the

City's failure to train those two officers caused Cohen's eventual

death.3

As we have explained, the district court correctly

dismissed the complaint against both officers. This meant that,

at the summary judgment stage, there was no longer an individual

defendant through whom municipal liability for allegedly deficient

3There is no record evidence of any other defendant falling behind on mandatory crisis intervention training.

- 13 - police training could "run." See

. This fundamental

defect dooms the estate's failure-to-train claim. We therefore

affirm the district court's grant of summary judgment without

analyzing its remaining reasoning.

III.

"Protect and serve" is the motto of the Portland Police

Department. Even acknowledging the challenge posed by Cohen's

behavior, the efforts of the responding officers likely fell short

of the aspirations behind that motto. That being said, this appeal

turns on whether any defendant violated Cohen's constitutional

rights. And for the foregoing reasons, the answer is clearly no.

The district court's dismissal and summary judgment orders are

therefore affirmed.

- 14 -