MEMORANDUM AND ORDER ON MOTIONS OF DEFENDANTS AHEARN, CONNOLLY, FITZPATRICK, GREENLEAF, KENNEDY, MORRIS, AND RING FOR JUDGMENT ON THE PLEADINGS BASED ON QUALIFIED IMMUNITY I. INTRODUCTION
This is an action brought by Emily and Christopher McIntyre(the "plaintiffs"), as co-administrators of the Estate of John L.McIntyre (the "Estate"), against James Ahearn, John J. Connolly,Jr., Robert Fitzpatrick, James Greenleaf, Roderick Kennedy, JohnM. Morris, and James A. Ring (collectively, the "agents," all ofwhom were agents of the Federal Bureau of Investigation ("FBI")at various times relevant to the complaint); the United States ofAmerica; and Kevin Weeks, James J. Bulger, and Stephen J. Flemmi,purported members of the Winter Hill Gang, an alleged criminalorganization operating in the Greater Boston area. The complaintalleges that in 1984, McIntyre was murdered by Weeks, Bulger,Flemmi, or other members of the Winter Hill Gang. The complaintfurther alleges that the agents are liable for the murder ofMcIntyre because the agents chose to protect Bulger and Flemmi —allegedly "top echelon" informants of the FBI — from prosecution,so that the agents could boost their own careers by using theinformation Bulger and Flemmi provided to them to investigate,arrest, and prosecute members of La Cosa Nostra ("LCN," commonlyknown as the "Mafia"), a criminal organization that was a rivalto the Winter Hill Gang. As part of his alleged efforts to shieldBulger and Flemmi from prosecution, Connolly, with the knowledge,assistance, or acquiescence of the other agents (except Ahearn),allegedly informed Bulger and/or Flemmi that McIntyre wasproviding the United States Drug Enforcement Administration (the"DEA") with information that incriminated Bulger and Flemmi incriminal activity within DEA's area of concern. According to theplaintiffs, the agents made, caused, or permitted thisdisclosure, knowing, or with deliberate indifference to thepossibility, that Bulger and Flemmi would in turn murder McIntyreor cause him to be murdered. The plaintiffs also allege that all of theagents subsequently violated the constitutional rights of theEstate by engaging in "cover ups" of the murder of McIntyre andof numerous other criminal activities of Bulger and Flemmi. Theagents allegedly engaged in this misconduct to preserve thestatus of Bulger and Flemmi as top echelon informants and toconceal the FBI's corrupt relationship with them.
The complaint is in thirteen counts.1 In counts IXthrough XII, the plaintiffs assert claims under Bivens v. SixUnknown Named Agents of Federal Bureau of Narcotics,403 U.S. 388 (1971) against various combinations of the agents for thedeprivation of rights guaranteed by First, Fourth and Fifthamendments to the Constitution of the United States. Thebreakdown of these claims is as follows: Count IX: This count alleges a violation of the Fourth Amendment right of McIntyre to be free from unreasonable seizure by the government. The claim is asserted against all of the agents except Ahearn. Count X: This count alleges a violation of the Fifth Amendment substantive due process right of McIntyre not to be deprived of his life or liberty by the government. The claim is asserted against all of the agents except Ahearn. Count XA: This count alleges a violation of the Fourth and Fifth Amendment rights of McIntyre described in counts IX and X. The claim is asserted against Greenleaf and Ring under a theory of supervisory liability. Count XI: This count alleges a conspiracy in violation of the Fourth and Fifth Amendment rights of McIntyre described in counts IX and X. The claim is asserted against all the agents.
Count XII: This count alleges a conspiracy to violate the First and Fifth Amendment right of the Estate to access to the courts. The claim is asserted against all the agents. Before the court are the motions of all of the agents forjudgment on the pleadings as to the Bivens claims, based on thedefense of qualified immunity. On April 23, 2003, I ordered theagents moving for dismissal on the ground of qualified immunityto file a joint memorandum in support of their several motions tothe extent that it was practicable to do so. McIntyre v. UnitedStates, Civ. No. 01-10408 (D. Mass. Apr. 23, 2003) (docket entry280). An individual memorandum was to be filed only if the motionof an individual agent "raise[d] issues, with respect toqualified immunity, that are unique in his circumstances." Id.Pursuant to this order, Ahearn, Fitzpatrick, Greenleaf, Kennedy,and Ring, together with four other agent defendants in relatedcases,2 submitted their Consolidated Memorandum of Law inSupport of the Individual Defendants' Motions to Dismiss or forJudgment on the Pleadings on the Basis of Qualified Immunity("Def.s' Cons. Mem.," docket entry 308). Morris filed a motion tojoin the motions of the other defendants to dismiss on grounds ofqualified immunity.3 Similarly, Connolly filed a motionfor judgment on the pleadings based on qualifiedimmunity.4 The plaintiffs in this case joined withplaintiffs in related cases in filing the Plaintiffs'Consolidated Brief in Opposition to Defendants' Motion to Dismiss or for Judgment on the Pleadings onthe Basis of Qualified Immunity ("Pl.s' Cons. Br. Opp.," docketentry 321 in McIntyre). The individual defendants filed aconsolidated reply (docket entry 324).
For the purpose of the present motions, I must treat allwell-pleaded facts, and all reasonable inferences therefrom, astrue. Martin v. Applied Cellular Tech., Inc., 284 F.3d 1, 6(1st Cir. 2002); United States v. United State Currency,$81,000.00, 189 F.3d 28, 33 (1st Cir. 1999); see also Collierv. City of Chicopee, 158 F.3d 601, 602 (1st Cir. 1998) (motionsfor judgment on the pleadings under Fed.R. Civ. P. 12(c) warrantthe same treatment as motions to dismiss under Fed.R. Civ. P.12(b)(6)).
A. The Agents
A brief identification of each agent, based on the complaint,is helpful in understanding the factual allegations.
Agents assigned to the Organized Crime Squad of the FBI BostonOffice. Connolly was a special agent in the Organized CrimeSquad (the "OCS") of the FBI field office in Boston (the "FBIBoston Office") from approximately February 1973 until hisretirement from the FBI in 1990. During this time, he was the"handler" of Bulger and Flemmi. Morris was assigned to the FBIBoston Office roughly from March 1972 until November 1991.Between December 1977 and January 1983, Morris was the chief ofthe OCS and was Connolly's direct supervisor. After Morris leftthe OCS, he continued to have contact with Connolly, Bulger, andFlemmi. Ring was the chief of the OCS from approximatelyJanuary 1983 until 1990 and was Connolly's direct supervisor whenMcIntyre was murdered. The "special agents in charge" of the FBI Boston Office.Greenleaf was the special agent in charge (the "SAC") of the FBIBoston Office from approximately November 1982 until December1986 and was the SAC at the time of the murder of McIntyre.Fitzpatrick was an "assistant special agent in charge" ("ASAC")of the FBI Boston Office assigned to the McIntyre matter at thetime Bulger and Flemmi murdered McIntyre.5 Ahearnassumed the position of SAC of the FBI Boston Office uponGreenleaf's departure and continued in that position for theremainder of the time period relevant to the complaint. Kennedy. Kennedy was a special agent in the FBI Boston Officewhen McIntyre was murdered in 1984. He was the "operationalliaison with other agencies concerning narcotics matters." Compl.¶ 251.
B. The Use of Informants by the FBI as Alleged in theComplaint
In the mid-1960's the FBI, including the FBI Boston Office,began to investigate LCN. In the Greater Boston area, LCN was indirect competition with the Winter Hill Gang — a more local,clandestine criminal organization. As the FBI investigated LCN,the development of "top echelon" criminal informants became ahigh priority for the agency. Top echelon informants wereindividuals who "could provide a continuous flow of qualitycriminal intelligence information regarding the leaders oforganized crime." Id. ¶ 39. Information provided to the FBI byits informants permitted the FBI to prosecute and convict membersof LCN. Thus, an FBI agent's success in developing informants —particularly top echelon informants — could significantly advancethe agent's career.
Although often ignored in the FBI Boston Office, guidelines inthe FBI Manual of Instructions (the "Guidelines") prescribedlimitations on the use of informants. The Guidelines requiredthat special care be taken not only to minimize . . . use [of informants] but also to ensure that individual rights are not infringed and that the government itself does not become a violator of the law. Informants as such are not employees of the FBI, but the special relationship of an informant to the FBI imposes a special responsibility upon the FBI when the informant engages in activity where he has received, or reasonably thinks he has received encouragement or direction for that activity from the FBI.Id. ¶ 110. Similarly, the Guidelines advised agents that "[t]heFBI may not use informants . . . for acts . . . which the FBIcould not authorize for its undercover agents." Id. ¶ 111(alterations in original). Further, the Guidelines mandated that `[u]nder nocircumstances shall the FBI take any action to conceal a crime byone of its informants." Id. ¶ 112. "[I]f the FBI learned thatone of its informants had violated the law in furtherance of hisassistance to the FBI," the FBI was required to report the crimeto law enforcement or prosecutive authorities, or to the UnitedStates Department of Justice. Id. ¶¶ 113; 114. The Guidelinescontained the same mandate where the FBI had "knowledge that oneof its informants had committed a serious crime unconnected withhis FBI assignments." Id. ¶ 115 (internal quotation marksomitted). The Guidelines also dictated that agents seekpre-authorization to permit an informant to commit a crime inorder to obtain information for the FBI. Finally, the Guidelinesrequired agents to "avoid any disclosure to anyone which mightpermit identification of a criminal informant or even castsuspicion on a criminal informant." Id. ¶ 109.
C. The Development of Bulger and Flemmi as Informants asAlleged in the Complaint
Flemmi was first developed as a top echelon informant in 1967by H. Paul Rico, then a special agent in the FBI Boston Office.At the time, Rico knew Flemmi was "a suspect of [sic] possiblybeing involved in gangland slayings." Id. ¶ 47. "Rico promisedFlemmi protection from the FBI if Flemmi would become an FBIinformant." Id. ¶ 43. Rico proved true to that promise. Forexample, in 1969, he warned Flemmi to leave Boston because Flemmiwould soon be indicted; in 1974, Rico successfully arranged tohave a murder charge against Flemmi dropped upon Flemmi's returnto Boston.
The same year that Flemmi returned to Boston, Connollytransferred from an FBI field office in New York to the FBIBoston Office. As a special agent in the OCS, Connolly sought tocultivate Bulger as an informant. Despite the fact that Bulgerwas known to be violent, Connolly extended the same promise of protection to Bulger that Rico hadgiven Flemmi. In 1975, Connolly succeeded in having Bulgerdesignated as a "top echelon" informant. Shortly thereafter,Flemmi, who was working with Bulger, but was no longer anofficial FBI informant, also began providing information toConnolly. Flemmi was eventually re-registered as an FBI informantin 1980. Connolly continued to act as the "handler" of Bulger andFlemmi until he retired from the FBI in 1990, even though, attimes, he led FBI headquarters in Washington, D.C. to believethat he was no longer using them as informants.
D. Allegations that the Agents Shielded Bulger and Flemmi fromInvestigation and Prosecution
All of the agents "knew that despite their cooperation with theFBI, Bulger and Flemmi were still engaged in serious criminalwrongdoing." Id. ¶ 84. The agents went to great lengths toprotect Bulger and Flemmi from investigation and prosecution bystate law enforcement agencies, other federal agencies, and evenother offices and divisions of the FBI. The agents had severalincentives to ensure that the criminal activities of Bulger andFlemmi were not exposed. The information that Bulger and Flemmiprovided to Connolly and Morris enabled them and the other agentsto investigate and prosecute key members of LCN, resulting inprestige not only for Connolly and Morris, but for those abovethem in the chain of command Further, as Connolly and Morrisbecame more entrenched in their relationship with Bulger andFlemmi, Connolly and Morris treated Bulger and Flemmi more asfriends than as criminals, accepting from Bulger and Flemmigifts, including wine and money. If Bulger and Flemmi wereprosecuted, their corrupt relationship with Connolly and Morriswould have been disclosed. Moreover, with each improper deflection of an investigation of Bulger and Flemmi, it becamemore important for Connolly, Morris, and the other agents toprevent the previous "cover ups" from being discovered.
One of the ways in which Connolly and Morris helped Bulger andFlemmi to avoid investigation and prosecution was by alertingthem that criminal associates of the two Winter Hill gangsterswere cooperating or might cooperate with law enforcement agenciesin providing information about the gangsters' criminalactivities. Such disclosures prompted Bulger and Flemmi to murderpersons who had been identified by Connolly and/or Morris asactual or possible informants. After each murder, the agentsfailed to perform a thorough investigation of the crime andprevented other law enforcement agencies from discovering thecircumstances of the victim's death.
In 1976, for example, Bulger and Flemmi learned from Connollythat Richard Castucci was providing the FBI with specificinformation regarding the whereabouts of two fugitive members ofthe Winter Hill Gang. As a result of Connolly's disclosure,Bulger and Flemmi murdered Castucci on or about December 29,1976. In 1981, Bulger and Flemmi learned from Connolly thatOklahoma businessman Roger Wheeler, an official of World Jai Alai("WJA"), suspected that John Callahan, the president of WJA, wasskimming money from WJA for the Winter Hill Gang. On May 27,1981, Bulger, Flemmi and others caused Wheeler to be shot andkilled in Tulsa, Oklahoma. In January 1982, Brian Halloran, amember of the Winter Hill Gang, began to cooperate with the FBIBoston Office and implicated Bulger, Flemmi, and Callahan in theWheeler murder. Morris learned of Halloran's cooperation andpassed on the information to Connolly. Connolly in turn disclosedHalloran's cooperation to Bulger and Flemmi, and, on May 11,1982, Bulger and others gunned down Halloran outside a café inSouth Boston. Later that year, Connolly alerted Bulger and Flemmi that law enforcementagencies were seeking to question Callahan about the Wheeler andHalloran murders; as a result, Bulger and Flemmi caused Callahanto be murdered on or about August 1, 1982.
E. The Murder of McIntyre in 1984 as Alleged in the Complaint
In mid-October 1984, John McIntyre, the engineer on a shipcalled the Valhalla, began to cooperate with the local police inthe investigation of criminal activities in which Bulger wasinvolved. He revealed that Bulger participated in an attempt touse the Valhalla to smuggle weapons from Massachusetts to theIrish Republican Army ("IRA") in Ireland The local policearranged for agents from the United States Customs Service andthe FBI, including defendant Kennedy, to participate in thequestioning of McIntyre. During the interview with Kennedy,McIntyre repeated his allegations about Bulger's involvement inthe arms shipments. At the time of this interview, Kennedy wasaware of at least some of the ongoing criminal activities ofBulger and Flemmi. Kennedy reported the information he receivedfrom McIntyre to Greenleaf; Connolly was present when these FBIagents discussed McIntyre's cooperation with law enforcementagencies. In October or November 1984, Bulger and his associateslearned from Connolly that McIntyre was informing authoritiesabout illegal activities carried out by Bulger and his associates.6 As a result of this disclosure, Bulger,Flemmi7 and Weeks kidnapped, tortured, and murderedMcIntyre on or about November 30, 1984.
After the disappearance of McIntyre, the FBI Boston Office toldhis family that he was a fugitive and failed to undertake anyeffort to investigate McIntyre's disappearance. Moreover, in theyears following the murder of McIntyre, all of the agentscontinued to protect Bulger and Flemmi from investigation andprosecution with respect to any of their criminal activities.See generally id. ¶¶ 298-365, 472, 473.
F. The Alleged Liability of the Agents
In addition to the allegations set out above, the plaintiffsallege that the conduct of all the agents, except Ahearn,resulted in the death of McIntyre because the agents
continued to utilize Bulger and Flemmi as top echelon informants; failed to control the criminal activities of Bulger and Flemmi; failed to enforce the [Guidelines] governing high echelon informants, including Bulger and Flemmi; . . . failed to inform the appropriate law enforcement or prosecutive authorities of the criminal activities of Bulger and Flemmi; continued to allow Connolly to remain Bulger and Flemmi's "handler" when it was known or should have been known that he should have been removed from that position; failed to warn and protect McIntyre after he agreed to cooperate with federal law enforcement agencies; and failed to warn and protect McIntyre after it became known to the Bulger Group that McIntyre was cooperating with law enforcement officials concerning the illegal activities of the Bulger Group.Id. ¶ 421, 427. The plaintiffs further assert that Ring and Greenleaf areliable for the murder of McIntyre because they failed tosupervise Connolly in his role as the "handler" of Bulger andFlemmi. Likewise, the plaintiffs claim that Ring and Greenleafallegedly failed to supervise Kennedy in his duty to warn andprotect McIntyre.
A. Standard for Consideration of the Motions
As explained above, when ruling on motions brought underFed.R. Civ. P. 12(c), I must accept as true the factual allegationsof the complaint and draw all reasonable inferences therefrom infavor of the plaintiff; I may not grant the motion unless "itappears beyond a doubt that the plaintiff[s] can prove no set offacts in support of [their] claim[s] which would entitle [them]to relief." United States Currency, $81,000.00, 189 F.3d at 33.
B. Qualified Immunity
Under the qualified immunity doctrine, "government officialsperforming discretionary functions generally are shielded fromliability for civil damages insofar as their conduct does notviolate clearly established . . . constitutional rights of whicha reasonable person would have known." Harlow v. Fitzgerald,457 U.S. 800, 818 (1982). Indeed, qualified immunity is meant toprotect government officials not just from ultimate liability,but from the burdens of litigation itself. Mitchell v. Forsyth,472 U.S. 511, 526 (1985). Whether a government actor enjoys theprotection of qualified immunity in a given case is an issue thatshould be decided, as a matter of law, at the earliest possiblestage of a case. Anderson v. Creighton, 483 U.S. 635, 646, n. 6(1987). Nonetheless, "pre-trial resolution [of the question ofqualified immunity] sometimes will be impossible because of adispute as to material facts. In such a case, the factual issuesmust be decided by the trier of fact. . . ." Kelley v. LaForce,288 F.3d 1, 7 (1st Cir. 2002) (citation omitted).8
In determining whether qualified immunity applies in a specificcase, a court must "first determine whether the plaintiff hasalleged the deprivation of an actual constitutional right at all,and if so, proceed to determine whether that right was clearlyestablished at the time of the alleged violation." Wilson v.Layne, 526 U.S. 603, 609 (1999) (quoting Conn v. Gabbert,526 U.S. 286, 290 (1999)); see also Soto v. Flores, 103 F.3d 1056,1064 (1st Cir. 1997). "[T]he inquiry whether the right at issuewas clearly established properly focuses `not upon the right atits most general or abstract level, but at the level of itsapplication to the specific conduct being challenged.'" Singerv. Maine, 49 F.3d 837, 845 (1st Cir. 1995) (quoting Wiley v.Doory, 14 F.3d 993, 995 (4th Cir. 1994)). Where a plaintiffseeks to hold a defendant liable by virtue of the defendant'ssupervisory authority over a subordinate, who violated aconstitutional right of the plaintiff, "the `clearly established'prong of the qualified immunity inquiry is satisfied when (1) thesubordinate's actions violated a clearly establishedconstitutional right, and (2) it was clearly established that a supervisor would be liable for constitutionalviolations perpetrated by his subordinates in that context."Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998); seealso Poe v. Leonard, 282 F.3d 123, 134 (2d Cir. 2002) (agreeingwith the two-prong test in Camilo-Robles and characterizing thesecond prong as requiring the plaintiff to show that the"supervisory liability doctrine under which the [plaintiff]wishes to hold [the supervisor] liable" was clearly established).Finally, if a defendant has violated a clearly established right,a court must then consider "whether a reasonable official,similarly situated would understand that the challenged conductviolated a constitutional norm." Rivera-Jiménez,362 F.3d at 93.
C. Fourth Amendment
The plaintiffs allege that the murder of McIntyre deprivedMcIntyre of his right under the Fourth Amendment to be free fromunreasonable governmental seizure and his Fifth Amendment rightto substantive due process. The plaintiffs, however, cannotmaintain claims for the violation of both of these rights,because "where a particular Amendment `provides an explicittextual source of constitutional protection' against a particularsort of government behavior, `that Amendment, not the moregeneralized notion of `substantive due process,' must be theguide for analyzing these claims.'" Albright v. Oliver,510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386,395 (1989)).9 It is therefore important that I considerthe Fourth Amendment claims as a threshold matter. The agents argue that the murder of McIntyre was not a FourthAmendment seizure because a seizure requires "governmentaltermination of freedom of movement through means intentionallyapplied," Brower v. County of Inyo, 489 U.S. 593, 597 (1989),and the plaintiffs have failed "to assert that the individualdefendants intended to bring about a particular result [i.e.,death] with regard to a particular decedent," Def.s' Cons. Mem.at 26. The agents also maintain that a seizure only occurs whenthere is "direct police action intended to cause a particularresult," and that, in this case, the claimed seizures were not"effectuated by Government personnel such as the individualdefendants." Id. at 25, 26. In contrast, the plaintiffs arguethat the murder of McIntyre was "intended and [was] for thepurpose of furthering [a] criminal enterprise" comprisingConnolly, Morris, and others, and that Bulger and Flemmi wereacting as "representative[s] of the government" when theymurdered McIntyre. Pl.s' Cons. Br. Opp. at 19, 20.
Neither the argument of the agents nor that of the plaintiffscompletely resolves the question of whether the plaintiffs havealleged a seizure within the meaning of the Fourth Amendment.While I cannot glean from the agents' memorandum how they woulddefine "direct police action,"10 it is "well establishedthat unlawful acts performed by informants at the instance ofGovernment officials may, for Fourth Amendment purposes, betreated as acts of the Government itself." United States v. Bennett, 729 F.2d 923, 925(2d Cir. 1984).11 Here, the plaintiffs have adequatelypleaded government action by alleging that the agents acted inconcert with Bulger and Flemmi and/or improperly supervised otherFBI employees who did. Moreover, the plaintiffs have explicitlyor implicitly alleged that the agents either intended the deathof McIntyre and/or improperly supervised other defendants who sointended, thus satisfying the state of mind requirement for aFourth Amendment seizure.
Despite the problems with the agents' position and asuperficial appearance of soundness in the plaintiffs' position,the plaintiffs' argument nevertheless fails to carry the day forthem. Apparently the plaintiffs interpret Brower as holdingthat a Fourth Amendment seizure occurs whenever "there is agovernmental termination of freedom of movement through meansintentionally applied." 489 U.S. at 597; Brower does not,however, stand for that proposition. In Brower, the issuefacing the Court was whether a Fourth Amendment seizure occurredwhen a suspect, leading police in a high-speed pursuit, was killed bycrashing into a police roadblock, when he could have voluntarilystopped earlier. The Court explained that, where a suspect beingpursued by police unexpectedly loses control of his car andcrashes, no seizure occurs because the mechanism that terminatedthe suspect's freedom of movement (his unexpected loss of controlof the car) was not same mechanism the officers employed in aneffort to seize the suspect (show of authority through flashinglights and siren). The Court held, however, that in the casebefore it, a seizure had occurred because, by setting up aroadblock, the defendants intended to terminate the suspect'sfreedom of movement in the very manner that it happened: It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.Id. at 596-97 (second emphasis added).
Contrary to the implication the plaintiffs find in theforegoing language, the passage indicates that "governmentaltermination of freedom of movement through means intentionallyapplied" is merely one element of a Fourth Amendment seizure —not the entire definition of such a seizure. While allseizures are governmental terminations of freedom of movementthrough means intentionally applied, the reverse is not true: notall governmental terminations of freedom of movement throughmeans intentionally applied are seizures. "[G]overnmental conductwhich is not actuated by an investigative or administrativepurpose will not be considered a `search' or `seizure' forpurposes of the Fourth Amendment." Heinrich ex rel. Heinrich v.Sweet, 62 F. Supp. 2d 282, 317 (D. Mass. 1999) (quoting UnitedStates v. Attson, 900 F.2d 1427, 1430 (9th Cir. 1990) (dismissing claim that federal defendants "seized"patients by conducting unproven and dangerous medical experimentswithout their knowledge; complaint stated claim, however, forviolation of the patients' substantive due process rights)). TheBrower decision was necessarily limited, by the factualcircumstances of the case, to a discussion of the means by whichthe government effected the seizure. Because the relevance of theFourth Amendment to a police pursuit of a fleeing suspect ispatent, the Brower court did not need to consider whether theofficer's conduct in question was actuated by an administrativeor investigative purpose.
In other cases, however, the distinction between police conductactuated by an administrative or investigative purpose and policeconduct actuated by some other purpose must be made. The SecondCircuit's analysis in Hemphill v. Schott, 141 F.3d 412 (2d Cir.1998), is helpful on this point.12 In Hemphill, thecourt held that the alleged conduct of police officers inassisting a private citizen to shoot the plaintiff in the courseof the officers' arrest of the plaintiff was not a seizure within the meaning of the Fourth Amendment, butthat the conduct did deprive the plaintiff of his substantive dueprocess rights. According to the plaintiff in that case, when thedefendant officers arrived at the scene of an armed robbery, theyfound that the victim, a store owner and retired police officer,had been shot in the leg by the plaintiff. The officers asked thestore owner if he wanted to go directly to the hospital, and hereplied that he wanted to accompany the officers in their pursuitof the plaintiff — who had fled in a jeep — because the storeowner wanted to "get them." Id. at 414. The officers permittedthe store owner to ride in their patrol car and at some pointgave him one of their guns. The officers learned that the jeephad stopped at a parking lot and proceeded to that site where,during the plaintiff's standoff with the police, the store ownerand an on-duty police officer shot the plaintiff.
The plaintiff, acting pro se, brought a claim under § 1983against the officers, claiming the defendants had used "excessiveforce" and "unlawful action" to deprive him of life and liberty.Id. at 414. Without addressing the plaintiff's allegationsabout the role the officers allegedly played in "aiding andabetting" the private citizen's shooting of the plaintiff, thedistrict court granted the defendants' motions for summaryjudgment, holding that the force used by the police officer whoshot the plaintiff was reasonable for purposes of the FourthAmendment.
On appeal, the officers argued that their conduct with respectto the private citizen "must be analyzed exclusively under therequirements of the Fourth Amendment" because it "occurred in thecontext of [the plaintiff's] arrest." Id. at 418. The SecondCircuit disagreed, and, in reversing the decision of the trialcourt, explained that while some of the facts that comprise [the plaintiff]'s allegations with respect to the Officers' aiding and abetting [the private citizen] occurred in the "context" of his arrest in a physical sense, the Officers' alleged actions with respect to [the private citizen] form a different kind of claim from excessive force in effecting an arrest. Graham's holding that excessive force claims in the context of an arrest are to be analyzed under the Fourth Amendment's objective standards does not extend to this unusual situation in which the police officers allegedly engaged in a deprivation of rights coincident with, but distinct from, their arrest of the suspect.Id. at 418-419.
When compared to the more subtle circumstances in Hemphill,where the substantive due process violation was "coincident" to,yet distinctive from, the police's arrest of the victim, theinapplicability of the Fourth Amendment to the allegations of thepresent plaintiffs is obvious. The plaintiffs have not allegedfacts suggesting that the murder of McIntyre was "governmentalconduct . . . actuated by an investigative or administrativepurpose." Indeed, the plaintiffs have argued that the murderswere "for the purpose of furthering the criminal enterprise"among Bulger, Flemmi, Connolly, Morris, and others. Pl.s' Cons.Br. Opp. at 19. Moreover, the FBI was not investigating McIntyre.On the contrary, the plaintiffs allege that McIntyre was murderedto shut down or prevent investigations of criminal activity ofBulger and Flemmi.
Because the Fourth Amendment is not the source of aconstitutional right the agents may have violated when theyallegedly caused the murder of McIntyre, the plaintiffs have notstated a claim against the agents under that Amendment. Thus, themotions of the agents for judgment on the pleadings on the FourthAmendment claims (counts IX, XA, and XI, to the extent the lattertwo concern the Fourth Amendment), are GRANTED.
D. Substantive Due Process Rights of McIntyre
The plaintiffs have alleged in counts X, XA, and XI of theircomplaint that the agents violated the substantive due processright of McIntyre to life and liberty by acts and omissions thatled to his murder. In their qualified immunity defense as tothese claims, the agents argue that (1) the murder of McIntyre was not "government action," and(2) McIntyre did not have clearly established substantive dueprocess rights that would have required the agents to protect himfrom private violence. For the reasons set forth below, I deny inpart and grant in part the motions of the agents.
1. Conspiracy Claims
Before embarking on an analysis of whether the conduct of theagents regarding the murder of McIntyre violated his substantivedue process rights, I will apply two principles that willeliminate one of the conspiracy claims in this case. In count XIthe plaintiffs allege that Ahearn violated McIntyre's substantivedue process rights by joining a conspiracy whose members hadpreviously caused McIntyre's murder in furtherance of theconspiratorial object of protecting Bulger and Flemmi. Thecomplaint, however, does not contain any reference to conduct byAhearn occurring prior to the death of McIntyre. It is thereforea legal and factual impossibility that Ahearn violated thesubstantive due process rights of McIntyre, because those rightsterminated at the time of McIntyre's death. See Judge v.Lowell, 160 F.3d 67, 76 n. 15 (1st Cir. 1998), overruled onother grounds by Educadores Puertorriqueños en Acción v.Hernández, 367 F.3d 61 (1st Cir. 2004). The claims againstAhearn cannot stand even if the murder of McIntyre and Ahearn'sconcealment of the circumstances of that murder were infurtherance of a single conspiratorial object. Id.; Estate ofHalloran v. United States, 268 F. Supp. 2d 91, 96 (D.Page23 Mass. 2003).13 Thus, I grant defendant Ahearn's motionfor judgment on the pleadings as to count XI of the complaint.
There is a second reason that impels me to grant the motions ofMorris, Connolly, Kennedy, Fitzpatrick, Ring, and Greenleaf as tocount XI of the McIntyre complaint. The stated object of theconspiracy described in count XI was to protect Bulger and Flemmifrom investigation and prosecution. In a Bivens claim based ona theory of conspiratorial liability, however, the plaintiffsmust allege that the agents "act[ed] in concert" to (1) deprivethe decedents of their civil rights; or to (2) "commit a lawfulact," "the principal element of which is an agreement between the[agents] to inflict an [unconstitutional injury] upon the[decedents]." Earle v. Benoit, 850 F.2d 836, 844 (1st Cir.1988) (internal quotation marks omitted). In other words, theplaintiffs must allege that the underlying purpose of the agentsin conspiring was to commit the constitutional violation. InEstate of Halloran, for example, I held that a claim virtuallyidentical to count XI of the present complaint failed to state aclaim for a Bivens conspiracy claim, because the plaintiff had not alleged that theobject of the conspiracy was to deprive the decedent hisconstitutional rights. 268 F. Supp. 2d at 96. I pointed out that"the [plaintiff] is not able to show that the goal of protectinglaw enforcement informants is wrongful or unlawful," and Isuggested that "law enforcement agents regularly form commonplans to protect their sources as a matter of good investigativepractice." Id. at 95.14 Count XI suffers the sameinfirmity as the claim I dismissed in Halloran. Even if theagents foresaw or should have foreseen that the acts furtheringtheir conspiratorial object would deprive McIntyre of hissubstantive due process rights, the claim cannot go forwardbecause the plaintiffs have not alleged that the deprivation wasthe object or "principal element" of the agents' agreement.Cf. Lowden v. William M. Mercer, Inc., 903 F. Supp. 212, 220(D. Mass. 1995) (dismissing civil rights conspiracy claim broughtunder 42 U.S.C. § 1985(3) to deprive plaintiff of her right tointerstate travel where complaint alleged a conspiracy to preventplaintiff from meeting with out-of-state corporate officials todiscuss plaintiff's allegations of employment discrimination;statute provided protection against conspiracies for the purposeof depriving persons of constitutional rights, whereasdefendants' purpose was to prevent plaintiff from meeting withcorporate officials regardless of their location; interferencewith plaintiff's interstate travel was "incidental"). Permittinga Bivens conspiracy claim to go forward where theconstitutional deprivations were merely "foreseeable" contravenesthe principle that "the Constitution does not guarantee due careon the part of state officials; liability for negligentlyinflicted harm is categorically beneath the threshold ofconstitutional due process." County of Sacramento v. Lewis,523 U.S. 833, 848 (1998). Accordingly, the motions of all of the agents forjudgment on the pleadings are hereby GRANTED as to count XI ofthe complaint.15
2. The Substantive Due Process Claim Against Connolly
Although, all of the agents allegedly protected Bulger andFlemmi from investigation and prosecution, Connolly's allegedmisconduct is at the heart of the plaintiff's allegations.Connolly was the agent whose alleged misconduct had the closestnexus to the murder of McIntyre: Connolly allegedly revealedMcIntyre's informant status to Bulger and Flemmi, knowing thatthe disclosure would result in injury to McIntyre. The allegedmisconduct of the other agents consists primarily of acts orfailures to act in matters concerning Connolly's "handling" ofBulger and Flemmi. Thus, a necessary condition to the liabilityof these agents for a violation of the clearly establishedsubstantive due process rights of McIntyre is that Connolly isliable for such a violation. If Connolly did not violate theclearly established substantive due process rights of McIntyre,then any misconduct by the other agents with respect to themurder of McIntyre will not rise to the level of a constitutionalviolation. I therefore first examine whether the plaintiffs havesufficiently alleged that Connolly violated the clearlyestablished substantive due process rights of McIntyre.
a. General Principles of Substantive Due Process
The Fifth Amendment of the Constitution of the United Statesmandates that "[n]o person shall . . . be deprived of life,liberty, or property without due process of law." U.S. Const.amend. V. The "touchstone of due process is protection of the individualagainst arbitrary action of the government." County ofSacramento, 523 U.S. at 845 (quoting Wolff v. McDonnell,418 U.S. 539, 558 (1974)). The Fifth Amendment guarantees two typesof due process — procedural and substantive. Collins v. City ofHarker Heights, 503 U.S. 115, 125 (1992). Whereas procedural dueprocess "provide[s] a guarantee of fair procedure in connectionwith any deprivation of life, liberty, or property" by thegovernment, due process, in the substantive sense, "protectsindividual liberty against `certain government actions regardlessof the fairness of the procedures used to implement them.'" Id.(quoting Daniels v. Williams, 474 U.S. 327, 331(1986)).16 The "individual libert[ies]" protected by theguarantee of substantive due process are "those fundamentalrights and liberties which are, objectively, `deeply rooted inthis Nation's history and tradition,'" Washington v.Glucksberg, 521 U.S. 702, 720-21 (1997) (quoting Collins,503 U.S. at 125), and so "`implicit in the concept of orderedliberty' that `neither liberty nor justice would exist if theywere sacrificed,'" id. at 721 (quoting Palko v. Connecticut,302 U.S. 319, 325 (1937)).
b. Conscience-Shocking Conduct: The Touchstone of ArbitraryExecutive Conduct
The guarantee of substantive due process "limits what thegovernment may do in both its legislative . . . and its executivecapacities," and the "criteria to identify what is fatallyarbitrary differ depending on whether it is legislation or aspecific act of a governmental officer that is at issue."Country of Sacramento, 523 U.S. at 846. Legislation infringinga litigant's fundamental rights is arbitrary in the constitutional sense unless the mannerof "the infringement is narrowly tailored to serve a compellingstate interest." Glucksberg, 521 U.S. at 721 (quoting Flores,507 U.S. at 302).
The touchstone of arbitrariness of executive conduct is ofnecessity different from that of legislation. Because "only themost egregious official conduct can be said to be `arbitrary inthe constitutional sense,'" County of Sacramento,523 U.S. at 846 (quoting Collins, 503 U.S. at 129), "the substantivecomponent of the Due Process Clause is violated by executiveaction only when it `can properly be characterized as . . .conscience shocking,'" id. at 847 (quoting Collins,503 U.S. at 128). The conscience-shocking standard provides relief wheregovernment officials have "abus[ed] [their] power, or employ[ed]it as an instrument of oppression," id. at 846 (quotingCollins, 503 U.S. at 126)), while it "preserv[es] theconstitutional proportions of constitutional claims," andprevents the demotion of the Constitution "to a font of tortlaw," id. at 848 n. 8. Thus, "[o]utside of a few narrowcategories, like the safeguarding of prisoners who have beenwholly disabled from self-protection, this means conduct that istruly outrageous, uncivilized, and intolerable." Hasenfus v.LaJeunesse, 175 F.3d, 68, 72 (1st Cir. 1999) (citing Countyof Sacramento, 523 U.S. at 847). It is only where "the necessarycondition of egregious behavior [is] satisfied" that there is "apossibility of recognizing a substantive due process right to befree of such executive action." County of Sacramento,523 U.S. at 847 n. 8.
Admittedly, the term "conscience-shocking" is far fromself-defining. The Supreme Court has observed that "the measureof what is conscience shocking is no calibrated yard stick,[although] it does . . . `poin[t] the way.'" County ofSacramento, 523 U.S. at 847 (quoting Johnson v. Glick,481 F.2d 1028, 1033 (2d Cir. 1973)). There are, however, some clearmarkers on the measuring stick: "liability for negligently inflicted harmis categorically beneath the threshold of constitutional dueprocess" while "conduct intended to injure in some wayunjustifiable by any government interest is the sort of officialaction most likely to rise to the conscience-shocking level."Id. at 849.17 Official acts falling somewhere betweenthese two benchmarks "may be actionable" depending on thecircumstances. Id.
As alleged in the complaint the conduct of Connolly in relationto the murder of McIntyre is conscience-shocking because it was"conduct intended to injure [McIntyre] in some way unjustifiableby any government interest." According to the plaintiffs'allegations and reasonable inferences from those allegations,Connolly purposefully revealed McIntyre's cooperation with theDEA to Bulger and Flemmi. At the time of disclosure, Connollyknew that, under any circumstance, revealing the identity of aconfidential informant could result in the informant's death. Healso fully appreciated that the danger was especially high inrevealing to Bulger and Flemmi the identity of informants whoprovided information about them to law enforcement agencies.Connolly knew that Bulger and Flemmi had committed murders, andthat they had murdered other informants whose identities had beenrevealed to them. Thus, the plaintiffs have alleged that thedisclosure by Connolly of McIntyre's confidential informantstatus to Bulger and Flemmi was not only "conduct intended toinjure" McIntyre, but also conduct intended to injure himfatally. Moreover, the conduct was "unjustifiable by anygovernment interest." It is true that the government had alegitimate interest in investigating and prosecuting members ofLCN for their criminal activities, and, in a most perverse sense, thedeath of McIntyre furthered that lawful goal. With good reason,however, neither Connolly nor any of the other agents hasadvanced a Swiftian proposal18 that the government'sinterest in prosecuting LCN warranted offering up McIntyre as asacrificial lamb. Indeed, it is a fundamental tenet of theConstitution that the ends of law enforcement do not justify allmeans used to fight crime. See, e.g., Olmstead v. UnitedStates, 277 U.S. 438, 485 (1928) ("To declare that in theadministration of the criminal law the end justifies the means —to declare that the government may commit crimes in order tosecure the conviction of a private criminal — would bringterrible retribution.") (Brandeis, J., dissenting).19Because the plaintiffs have alleged that the conduct of Connollywas "intended to injure [McIntyre] in some way unjustifiable byany government interest," the plaintiffs have unquestionablypleaded conscience-shocking conduct on the part of Connolly.
c. Violation of a Fundamental Right
I must next determine whether the plaintiffs have adequatelyalleged that the conscienceshocking conduct of Connolly violateda fundamental right of McIntyre. A key question in determiningwhether Connolly violated the substantive due process rights ofMcIntyre is whether the plaintiffs' allegations support theinference that the murder of McIntyre at the hands of Bulger, Flemmi, or their associates, was sufficiently connectedto the government to take the crimes out of the category ofpurely private violence. While "[t]he Due Process Clause isintended to prevent government officials `from abusing [their]power or employing it as an instrument of oppression,'"Cummings, 271 F.3d at 346 (quoting County of Sacramento,523 U.S. at 846 (alteration in original)), the "Clause is phrased inthe negative. It says that a state shall not `deprive' residentsof life, liberty, or property, save with due process. It does notrequire the state to furnish residents with property they lack,or ensure that they do not suffer loss at private hands," Archiev. City of Racine, 847 F.2d 1211, 1220 (7th Cir. 1988).
As discussed below, there are, however, limited circumstancesunder which the government may have a duty to protect individualsfrom the wrongful acts of third parties. Here, Connolly and theother agents contend that the murder of McIntyre was an act ofprivate violence, and that the narrow exceptions to the generalrule that government agents do not have a duty under theConstitution to protect citizens from the acts of privateviolence do not apply. In contrast, the plaintiffs argue boththat the murder of McIntyre implicates these exceptions and that,moreover, the murder was not purely private conduct, butgovernment action. For the reasons explained below, I hold thatthe plaintiffs have adequately alleged that the murder ofMcIntyre was government action.
i. Murder of McIntyre as Private Violence
There are two exceptions to the general rule that the guaranteeof substantive due process does not require the government toprotect citizens from acts of private violence: (1) when thegovernment has restrained a citizen's ability to care forhimself, as in the case of incarcerated persons or persons in afoster care setting, see DeShaney v. Winnebago County Dept. ofSocial Servs., 489 U.S. 189, 198-200 (1989); and (2) when thegovernment, through its affirmative acts, renders an individualmore vulnerable to third-party violence, see Soto,103 F.3d at 1064. Not surprisingly, the parties on the present motionsdisagree sharply as to the scope of these duties and theirapplicability to the present case.
(a) Governmental Restraint of Victim
In DeShaney, the Supreme Court observed that, absent anyclaim that the state created the danger, a citizen does not havea constitutional right to be free from the violent acts of thirdparties, unless the state has restrained the citizen's liberty.In that case, state officials had taken temporary custody of asmall child, Joshua, after receiving reports that his father hadphysically abused him. After the father voluntarily committed totaking certain steps to improve the child's welfare, theofficials returned Joshua to his father's custody. Although theofficials later became aware that the father was not adhering tothe promises he made prior to Joshua's return, and that Joshuawas showing signs of physical abuse, the state took no actionuntil the father beat Joshua so severely that the child fell intoa life-threatening coma and became profoundly retarded. Joshuaand his mother brought a § 1983 action against the stateDepartment of Social Services, certain of its employees, and thecounty, alleging that the defendants violated Joshua'ssubstantive due process rights "by failing to intervene toprotect him against a risk of violence at his father's hands ofwhich they knew or should have known." Id. at 193. The districtcourt granted the defendants' motion for summary judgment, andthe court of appeals affirmed.
Affirming the lower courts, the Supreme Court reiterated theprinciple that there is no general constitutional right to befree from private violence: [N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. . . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other.
Id. at 195-196. The plaintiffs nonetheless argued that "even ifthe Due Process Clause imposes no affirmative obligation on theState to provide the general public with adequate protectiveservices, such a duty may arise out of certain `specialrelationships' created or assumed by the State with respect toparticular individuals." Id. at 197. The plaintiffs maintainedthat "such `special relationship' existed [in that case] becausethe State knew that Joshua faced a special danger of abuse at hisfather's hands, and specifically proclaimed, . . . its intentionto protect him against that danger." Id. The plaintiffsconceded that the state did not play a part in creating thedanger Joshua faced. Id.
The Court rejected the plaintiffs' "special relationship"argument. Id. at 198. Acknowledging that in some instances "theConstitution imposes upon the State affirmative duties of careand protection with respect to particular individuals," id.,the Court held that such circumstances were limited to where thestate performed an "affirmative act of restraining theindividual's freedom to act on his own behalf — throughincarceration, institutionalization, or other similar restraintof personal liberty," id. at 200. In those situations, "it isthe State's affirmative act of restraining the individual'sfreedom to act on his own behalf . . . which is the `deprivationof liberty' triggering the protections of the Due Process Clause,not its failure to act to protect his liberty interests againstharms inflicted by other means." Id.; see also Davis v. Rennie, 264 F.3d 86, 98 (1st Cir. 2001) ("Once the staterestrains an individual's liberty, rendering that individualunable to act for himself . . . the state does acquire anaffirmative duty to protect." (quoting Shaw v. Strackhouse,920 F.2d 1135, 1144 (3d Cir. 1990)) (alteration in original)). Inother words, the underlying relationship giving rise to aconcomitant constitutional duty on the part of the government toprotect an individual from private violence is one in which thegovernment has restrained someone against his/her will. FirstCircuit cases decided after DeShaney unequivocally demonstratethat this "governmental restraint of freedom" exception20to the general rule that the Constitution does not protectagainst private violence is limited to situations wheregovernment officials have forcibly restrained an individual in aphysical rather than in a figurative sense. In Souza v. Pina,53 F.3d 423 (1st Cir. 1995), for example, the First Circuitrejected the argument of a § 1983 claimant that prosecutors hadallegedly driven the plaintiff's decedent to commit suicide. The court discerned noconstitutional duty to protect the decedent because theprosecutors had not restrained him within the meaning ofDeShaney. The plaintiff had maintained that, in light of thefact that the prosecutors knew or should have known that thedecedent had posed a risk of suicide, their alleged misconductlimited the decedent's freedom "as greatly as if he were lockedin maximum security." Id. at 426. In reversing the districtcourt's denial of the prosecutors' motion to dismiss based onqualified immunity, the First Circuit explained that "the SupremeCourt has made clear that the state has a duty to protect onlywhen it affirmatively acts to restrain the `individual's freedomto act on his own behalf — through incarceration,institutionalization, or other restraint of personal liberty.'"Id. (quoting DeShaney, 489 U.S. at 200).21 Similarly,in Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987(1st Cir. 1992), the court affirmed the dismissal of § 1983 claimin a case where a voluntarily committed mental health patientalleged he was injured when he jumped out of a van driven bystate employee. At the time, the plaintiff was being transportedfrom a state mental health treatment center to a state-run group home. The court reasonedthat the DeShaney governmental restraint exception did notapply because the state had not committed the plaintiffinvoluntarily and therefore had not taken an "affirmative act" ofrestraining the plaintiff's liberty. Id. at 991.
Despite this case law, the plaintiffs argue that, becauseMcIntyre was a government informant, he was "owed aconstitutionally protected duty of care arising out of arecognized `special relationship.'" Pl.s' Cons. Br. Opp. at 11.The plaintiffs label the "`defendants' reliance on theproposition "that this only occurs `through incarceration,institutionalization, or other similar restraint of personalliberty''" as "misplaced and incomplete," id. (quoting Def.s'Cons. Mem. at 18), and maintain that "serving as a confidentialinformant for law enforcement significantly compromises one'sability to protect oneself, quite in the same fashion as if onewere in a prison setting," id.
The plaintiffs' argument fails because, unlike an inmate orinvoluntarily institutionalized patient, the informant/governmentrelationship is voluntary and does not involve physical restraintby government agents. The plaintiffs have not suggested that thegovernment physically forced McIntyre to become an informant. Tobe sure, because McIntyre was suspected of criminal activity, hisdecision to cooperate might have been based on persuasiveargument by the government that it was in his interest to assistthe government's investigation and prosecution of the criminalactivities of others. It is also safe to say that confidentialinformants are generally more at risk than persons who are notinformants. But neither the government's leverage in recruitingcriminal suspects to become informants nor the danger inherent inone's acceptance of that role amounts to "incarceration,institutionalization, or other similar restraint of personalliberty." DeShaney, 489 U.S. at 200. Whatever metaphoricalshackles may be inherent in becoming an informant, or to whatever degree being an informant"significantly compromises one's ability to protect oneself," issimply insufficient to cloth the informant with substantive dueprocess rights to protection from the harm he might suffer as aconsequence of being an informant. Like the patient in Monahan,who voluntarily committed himself to a mental institution,McIntyre chose to be an informant. His freedom to choosewhether to cooperate with the government bears no resemblance tothe situation of one who, by action of the government, is forcedbehind locked hospital or prison doors.22
(b) State-Created Danger
Another exception to the general rule that there is not aconstitutional right to be free from private violence is theso-called "state-created danger" theory. In DeShaney, the Courtimplicitly acknowledged that, where the government's affirmativeacts render a citizen more vulnerable to private violence, thecitizen has a corresponding constitutional right to be protectedfrom that violence: While the state may have been aware of the dangers Joshua 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. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua. 489 U.S. at 201 (emphasis added). Although this so-called state-created danger theory existed in one form or another prior to DeShaney, see, e.g., Soto, 103 F.3d at 1064-65 (providing an overview of the development of the state-created danger theory of substantive due process rights), many courts have read DeShaney as recognizing a constitutional requirement that the government protect a citizen only when the government's affirmative acts place a person in a "worse position than . . . had it not acted at all." See, e.g., Hasenfus, 175 F.3d at 73 (citing DeShaney, and explaining that "[w]here a state official acts so as to create or even markedly increase a risk, due process constraints may exist, even if inaction alone would raise no constitutional concern").23
The agents argue that the plaintiffs cannot rely on thestate-created danger theory because, at the time of the agents'alleged misconduct, a substantive due process right based on thistheory was not "clearly established." The threshold question fora court to consider in assessing the qualified immunity defensein a given case, however, is whether "the facts alleged show the[defendants'] conduct violated a constitutional right." Saucierv. Katz, 533 U.S. 194, 201 (2001). Thus, before considering thequestion of whether the right of a citizen to be protected fromstatecreated dangers was clearly established at the time ofMcIntyre's murder, I must first determine whether the allegedconduct of Connolly violated that right as to McIntyre. This isnot a difficult analysis: revealing to known murderers that oneof their associates is an informant, cooperating with the government, unquestionably endangers the safety of thatinformant. Therefore when plaintiffs allege that, in disclosingthe informant status of McIntyre to Bulger and Flemmi, Connollyacted affirmatively to put the life of McIntyre in jeopardy, theyhave sufficiently alleged a violation by Connolly of McIntyre'ssubstantive due process right to be protected from the danger ofthe government's own creation.
But the plaintiffs argue in vain when they assert that the"state-created danger" theory, or the "constitutional duty not toaffirmatively abuse governmental power so as to create danger toindividuals and render them more vulnerable to harm," Soto,103 F.3d at 1064, was clearly established at the time Bulger andFlemmi are alleged to have murdered McIntyre. Soto v. Floresforecloses this argument. In Soto, the plaintiff had reportedher husband's emotional and physical abuse of her to policeofficers. At the time of the report, the plaintiff bore thevisible marks of recent physical abuse; she also expressed herfear that her husband would murder her if he learned she hadreported his abuse. Despite the plaintiff's voiced concern, thepolice officers did not take the husband into custody and in factalerted the husband to the plaintiff's allegations. Afterlearning of the report, the husband killed the couple's twochildren and then himself, leaving a note indicating he hadlearned of the mother's domestic abuse report. Advancing astate-created danger theory of liability, the plaintiff claimedthe officers had violated, among other things, her substantivedue process rights and those of her children. The First Circuitheld, however, that, "in 1991 `the contours of [a substantive dueprocess right under state-created danger theory] were [not]sufficiently plain that a reasonably prudent state actor wouldhave realized not merely that his conduct might be wrong, butthat it violated a particular constitutional right.'" Id. at1065 (quoting Martinez, 54 F.3d at 988 (second alteration inoriginal)). Citing White v. Rochford, 592 F.2d 381, 383 (7th Cir. 1979), the First Circuit did acknowledge,however, that the "`state-created danger theory,' has beenrecognized by some federal courts as a viable mechanism forestablishing a constitutional claim at least since 1979."103 F.3d at 1064 (quoting Kneipp v. Tedder, 95 F.3d 1199, 1201 (3dCir. 1996)). Nonetheless, the court concluded that the history ofthe theory was "an uneven one," and that the court could not"extract a clearly established right from a somewhat confusingbody of caselaw through the use of hindsight." Id. at 1065.
In light of the First Circuit's unambiguous holding in Sotothat a substantive due process right under the state-createddanger theory was not clearly established in 1991, the plaintiffsface a formidable obstacle. The plaintiffs contend, however, thatSoto is inapplicable to their case because Soto failed to"distinguish [between] materially distinct theories of statecreated danger," and because the harm to which the agents exposedMcIntyre was a more likely and more dangerous harm than thatimplicated in the cases cited by the First Circuit in Soto.Pl.s' Cons. Br. Opp. at 16 The plaintiffs also maintain thatSoto is inapposite, because, in Soto, there was no evidencethat the children (rather than the plaintiff) were at risk ofbeing killed by the husband Contrasting their case with Soto,the plaintiffs point out that McIntyre was both the anticipatedand actual victim of the danger created by the agents. Pl.s'Cons. Br. Opp. at 15-16.
While there may be factual distinctions between Soto and thepresent case, these differences are immaterial insofar as theplaintiffs rely on a state-created danger theory for theircontention that the agents violated a clearly established right.The decision in Soto was not premised on the degree of harm thevictims faced or the fact that the father had only threatened tokill the plaintiff, rather than the couple's children. Suchfactors might be material to an inquiry into whether a right under the state-created theory was violated,but not whether the right existed in the first place.
Finally, the plaintiffs seek to avoid the result required bySoto by arguing that, even if the First Circuit had notrecognized the state-created danger theory at the time of themurder of McIntyre, "a factual question still exists whether thedefendants . . . had special knowledge through FBI legaltraining, regarding the emerging `state created danger' theoryprior to [the alleged misconduct by the defendants]." Pl.s' Cons.Br. Opp. at 3 (emphasis added). The mere statement of thisproposition undermines the viability of the argument that thetheory of liability based on state-created danger was clearlyestablished at the time McIntyre's murder. If the state-createddanger is only "emerging," perforce it is not clearlyestablished. Furthermore the question of whether a constitutionalright is "clearly established" is a legal question, not a factquestion. Elder v. Holloway, 510 U.S. 510, 516 (1994) ("Whetheran asserted federal right was clearly established at a particulartime, so that a public official who allegedly violated the righthas no qualified immunity from suit, presents a question of law,not one of `legal facts.'").
ii. Murder of McIntyre as Government Action
The question of whether the agents violated the substantive dueprocess rights of McIntyre need not be cast only in terms of thepossible obligation of the agents to protect McIntyre fromprivate violence, however. Not all action by non-governmentalemployees is private action. Here, the plaintiffs have allegedthat Connolly gave Bulger and Flemmi information, opportunity,encouragement, and protection to murder McIntyre. It is alsoreasonable to infer from such allegations that the murder ofMcIntyre was the intended result of Connolly's disclosure. Underthe circumstances as alleged, I hold that the involvement of Connolly in the murder of McIntyre transformed what ordinarilywould have been a crime committed by private individuals intogovernment action.
(a) Attributing Conduct of the Informants to the Government
As a prelude to the discussion of whether the murder ofMcIntyre is to be considered government action, it is worthnoting that the federal courts have long held that the governmentmay not categorically absolve itself of responsibility for theactions of its informants simply by disclaiming any formal agencyrelationship with them. Almost half a century ago, in Sherman v.United States, 356 U.S. 369 (1958), the Supreme Court held thatan unpaid informant was acting as an agent of the government whenhe persuaded a criminal defendant to procure narcotics. Becausethe informant had repeatedly attempted to have the defendantobtain drugs, including by appealing to the defendant's sympathyand by inducing the defendant to return to his narcotics habit,the Court held that the defendant was not criminally liablebecause the government, through the informant, had entrapped thedefendant. In so ruling, the Court explicitly stated that theinformant had acted as an agent of the government, even if thegovernment, by turning a blind eye to the informant's tactics,was not aware of all of the informant's activities: [The] Government cannot disown [the informant] and insist it is not responsible for his actions. Although he was not being paid, [the informant] was an active government informer who had but recently been the instigatory [sic] of at least two other prosecutions. . . . In his testimony the federal agent in charge of the case admitted that he never bothered to question [the informant] about the way he had made contact with [defendant]. The Government cannot make such use of an informer and then claim disassociation through ignorance.Id. at 373-75. Similarly, in Hoffa v. United States,385 U.S. 293 (1966), the Court warned that although the use of secretinformants to investigate criminal suspects is not per se unconstitutional, an informant is not "to the slightest degreemore free from all relevant constitutional restrictions than isany other government agent." Id. at 311.24 Lower courtshave likewise held that an informant's misconduct ininvestigating a criminal suspect may constitute "outrageousconduct," violative of the suspect's due process rights,requiring that an indictment against the suspect/defendant bedismissed.25 (b) Governmental Participation in Private Conduct
With that backdrop, I turn to the question of when the conductof a private citizen — who may or may not be and informant — is"government action" for purposes of holding government officialsand the private citizen himself liable for the deprivation ofconstitutional rights. The notion that the action of a privateparty can be government action for purposes of determiningwhether a constitutional violation has occurred was widelydiscussed in cases arising from the Civil Rights Movement of the1960's and 1970's. In those cases, claimants alleged that thegovernment's imprimatur on the discriminatory acts of privatecitizens violated their rights under the Equal Protection Clauseof the Fourteenth Amendment. U.S. Const. amend. XIV.26 InBurton v. Wilmington Parking Authority, 365 U.S. 715 (1961),one of the first of these cases, the Court held that theplaintiff had sufficiently alleged that a municipal agency and aprivately-owned restaurant located on property owned and managedby the agency violated the equal protection rights of a blackrestaurant customer who was refused service at the restaurant onthe basis of his race. Explaining that "the concept of stateresponsibility [is] interpreted as necessarily following upon`state participation through any arrangement, management, fundsor property,'" id. at 721 (quoting Cooper v. Aaron,358 U.S. 1, 4 (1958)), the Court held that, because of the state's failureto prohibit its lessee from discriminating against patrons on thebasis of race, the state had violated the equal protection rightsof the customer who was refused service: By its inaction, . . . the State  has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of interdependence with [the private business] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so "purely private" as to fall without the scope of the Fourteenth Amendment.365 U.S. at 725.27 The Court warned, however, that "tofashion and apply a precise formula for recognition of stateresponsibility under the Equal Protection Clause is an impossibletask. . . . Only by sifting facts and weighing circumstances canthe nonobvious involvement of the State in private conduct beattributed its true significance." Id. at 722 (internalquotation marks omitted).28 Courts have addressed several kinds of government involvementin private conduct in determining whether that private conductmay be treated as government action in the context of a claimedconstitutional violation. Because the calculus involves "siftingfacts and weighing circumstances," the descriptions and tests forliability of government actors for constitutional violations,based on government involvement in private conduct, havemultiplied29 since Burton was issued. There is norubric that is the single expression of the circumstances inwhich government action will be found in the conduct of privateactors.30 Still, the cases have a common theme: when agovernment actor participates in the conduct of private actorsthat would violate the constitution if the conduct were solelythat of the government actor, the conduct is government actionfor purposes of analyzing whether a constitutional violation hasoccurred. I need only discuss a sampling of cases that may befairly analogized to the cases presently before me to make thepoint.
In the well-known case, Adickes v. S.H. Kress & Co.,398 U.S. 144 (1970), the Court held that a store employee's act ofrefusing service to the plaintiff, allegedly because theplaintiff was a white woman in the company of black persons,might have been under "color of law" if the employer hadconspired or "somehow reached an understanding" with local policeto refuse the plaintiff service on that ground: "The involvementof a state official in such a conspiracy plainly provides thestate action essential to show a direct violation of [theplaintiff]'s Fourteenth Amendment equal protection rights,whether or not the actions of the police were officiallyauthorized, or lawful." Id. at 152. While the trial court hadheld that the plaintiff had "failed to allege any facts fromwhich a conspiracy might be inferred," id. at 148, the Courtheld that the undisputed facts did not foreclose the propositionthat if a police officer were present at the store, "it would beopen to a jury . . . to infer from the circumstances that thepoliceman and a Kress employee had a `meeting of the minds' andthus reached an understanding that petitioner should be refusedservice," id. at 158. In Fries v. Barnes, 618 F.2d 988 (2d Cir. 1980), the SecondCircuit used a similar mode of analysis to hold that a plaintiff,who alleged that police officers and private physicians had acted"in concert, cooperation and conspiracy with each other" toconduct a warrantless search and seizure, had stated a valid §1983 claim against the officer and the physicians. Id. at 990.The district court had dismissed the plaintiff's claims suasponte as frivolous, concluding that there was no indicationthat the physicians had acted under color of law when they turnedover to authorities items the doctors obtained while treating theplaintiff for a gunshot wound. Reversing the district court'sorder, the Second Circuit cited Adickes and explained that a"police officer or government agent may not escape responsibilityby claiming that the violation of the plaintiff's rights wascommitted by the private person involved in such a collaborativeundertaking." Id. at 990. Because the plaintiff had allegedthat the police had "aided and abetted the other Defendants, and. . . directed the concerted action that Plaintiff contendsdeprived him of his constitutional rights," the allegations met"the test laid down by Adickes, and are inconsistent with thedistrict court's mistaken impression that there was no allegationof a conspiracy between the police and doctor." Id. at 991(alteration in original).
Over a decade after the Fries decision, the Second Circuit,in Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993) heldthat police officers who allegedly aided and abetted a privateactor's assault on the plaintiff could be liable to the victim ina § 1983 claim. The plaintiff alleged that, prior to a rallyduring which the assault occurred, the police officers toldcertain "skinheads" that unless the skinheads' conduct at therally got completely out of control, the police would neitherinterfere with their assaults nor arrest the perpetrators. Duringthe rally, the skinheads attacked the plaintiff; police officerswitnessed the ten-minute attack, but did not make an attempt to intervene. Citing Fries and Adickes, the Second Circuitvacated the district court's dismissal of the claim, explainingthat "a state actor may be subject to liability for an actionphysically undertaken by private actors in violation of theplaintiff's liberty or property rights if the state actordirected or aided and abetted the violation." Id. at 98. Notingthat, by alleging that the officers had agreed not to interferewith skinheads' conduct, the plaintiff had alleged that "theofficers in effect aided and abetted" the assault." The courtconcluded that "[s]uch a prearranged official sanction ofprivately inflicted injury would surely have violated thevictim's rights under the Due Process Clause." Id. at99.31
The Second Circuit's analysis in Hemphill v. Schott,141 F.3d 412 (2d Cir. 1998), discussed supra, is similar to that inDwares. Relying on allegations that the officers "conspiredwith another" by giving a gun to the store owner who then shotthe plaintiff, the Second Circuit concluded that the plaintiff inHemphill had sufficiently "ple[aded] a violation of hisFourteenth Amendment right not to be subjected to the excessiveforce of a third party who is aided and abetted by a stateactor." 141 F.3d at 419.32 One of the factors the courtpointed to in arriving at this conclusion was the fact that knowing that, the store ownerwanted to "get" the plaintiff, the officers provided the storeowner with a gun and allowed him to accompany the officers to thescene of the arrest. Id. Because a jury could infer from thesecircumstances that the officers "acted for the very purpose ofcausing [the plaintiff] harm," the factual dispute over theofficers' intentions foreclosed summary judgment. Id. at 420. In the four cases discussed above, the courts used a variety ofexpressions to describe the relationship between the private andpublic actors in finding government action where a private partydelivered the final blow. The store clerk and the policeman inAdickes might have "reached an understanding" or had a "meetingof the minds" to refuse service to the plaintiff.398 U.S. at 152, 158. The jury could infer this "understanding" simply fromthe police officer's presence in the store. Id. at 158. InFries, the plaintiff's claim of a conspiracy was supported byallegations that the police officers and the physicians were"involved" in a "collaborative undertaking" and that the officers"aided and abetted" the physicians and "directed" theobjectionable conduct. 618 F.2d at 990. In Dwares, the courtcharacterized the police officers' promise that they would notarrest or even interfere with the skinheads as a "prearrangedofficial sanction of privately inflicted injury." 985 F.2d at 99.The officers "aided and abetted" the assault with their promiseof inaction. Id. In Hemphill, a conspiracy for the "verypurpose of causing" the harm inflicted on the plaintiff could beinferred from the allegations that the officers armed a vengefulcitizen and delivered him to a volatile arrest situation.141 F.3d at 420. The officers' actions "aided and abetted" theassault. Id. at 419.33 In each one of these cases, thegovernment's participation in the conduct complained of was sofar removed from the realm of "purely private" actions that itwas deemed to have been government action.
The relationship between Connolly, on the one hand and, Bulgerand Flemmi, on the other, with respect to the murder of McIntyre,may be characterized by any of the nomenclature used in Adickes, Fries, Dwares, and Hemphill. As I have notedabove, the allegations and the reasonable inferences from themare that Connolly not only knew the dire consequences ofrevealing to Bulger and Flemmi the identity of McIntyre as aninformant, but intended that Bulger and Flemmi would killMcIntyre following the disclosure of his identity. The plaintiffsallege that Connolly had an incentive to quiet McIntyre. Becausethe hallmark of a successful FBI agent was handling a "topechelon" informant, it was necessary to protect Bulger and Flemmifrom prosecution in order for Connolly to continue benefittingfrom the prestige of that relationship. Moreover, Bulger andFlemmi were a repository of information not only about LCN, butalso about the malefactions of the FBI generally, and of Connollyin particular. Criminal prosecution of Bulger and Flemmi mightexpose the corrupt relationship Connolly maintained with Bulgerand Flemmi. Thus, Connolly, Bulger, and Flemmi might be said tohave "reached an understanding;" that they had a "meeting of theminds;" that they engaged in a "collaborative undertaking;" orthat they conspired to kill the McIntyre. The disclosure byConnolly of the informant status of McIntyre may have been a"prearranged official sanction of privately inflicted injury." Itcan also be said that, by disclosing McIntyre's identity as aninformant and communicating in word or in deed that the FBI woulddeflect efforts by other law enforcement agencies to investigateand prosecute Bulger and Flemmi for murdering McIntyre, Connolly"aided and abetted" the homicide. Regardless of the descriptorused, the plaintiffs have alleged that Connolly, in his role as agovernment official, participated in the murder of McIntyre, andthe constitutionality of his conduct and that of all of theagents must be analyzed on the premise that the murder ofMcIntyre was government action. 3. Violation by Connolly of the Clearly EstablishedSubstantive Due Process Rights of McIntyre
The Fifth Amendment explicitly states that the government maynot deprive a citizen of life without due process of law. Indeed,"[o]ne of the less controversial aspects of the due processclause is its implicit prohibition against a public officer'sintentionally killing a person, or seriously impairing theperson's health, without any justification." K.H. ex rel Murphyv. Morgan, 914 F.2d 846, 848 (7th Cir. 1990); see also Souza,53 F.3d at 426 ("There is a constitutional right not to bedeprived of life without due process of law. Thus, a state actorcannot murder a citizen.").34 The cases discussed in thepreceding section of this memorandum and order establish thatthis right may be implicated even where the murder is physicallycarried out by a private actor.
The defense of qualified immunity applies unless the law isclearly established either by materially similar precedent or bygeneral legal principles that apply with obvious clarity to thefacts of the case. Hope v. Pelzer, 536 U.S. 730, 741 (2002).Under the facts as alleged by the plaintiffs, it cannot bedoubted that Connolly violated the substantive due process rightsof McIntyre. In fact, because Connolly allegedly participated inand/or aided and abetted the murder of McIntyre, the right inquestion might be characterized as the right not to be murderedby the government. As so characterized, the right is clearlyestablished by the words of the Fifth Amendment itself. See,e.g., Heinrich, 62 F. Supp. 2d at 319 (holding that theplaintiffs' decedents had a clearly established right in 1946 tobe free from being injected with plutonium by the governmentwithout her consent "[e]ven absent the abundant case law that hasdeveloped on this point since the passage of the Bill of Rights"). But, evenif the right is characterized as a right not to be murdered by aprivate actor where a government actor aided, abetted,collaborated or conspired with the private actor to accomplishthe murder, the right was clearly established before McIntyre wasmurdered. The fact that there is no case proclaiming theexistence of the right under factual circumstances like thosepresented by the case before me does not preclude a determinationthat the right was clearly established. The Supreme Court hasrejected the notion that the determination of whether aconstitutional right is clearly established requires that a courtfind that the facts before it are fundamentally similar to aprevious case declaring the right. The Court instead hasexplained that general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.Hope, 536 U.S. at 741 (quoting Lanier, 520 U.S. at 270-71)(internal citation marks omitted). Thus, "officials can still beon notice that their conduct violates established law even innovel factual circumstances." Id. Indeed, "the easiest casesdon't even arise." Lanier, 520 U.S. at 271 (quoting UnitedStates v. Lanier, 73 F.3d 1380, 1410 (7th Cir. 1996) (Daughtrey,J., dissenting)). For example, "[t]here has never been . . . asection 1983 case accusing welfare officials of selling fosterchildren into slavery; it does not follow that if such a casearose, the officials would be immune from damages [or criminal]liability." Id. (quoting Lanier, 73 F.3d at 1410 (Daughtrey,J., dissenting));35 see also Anderson, 483 U.S. at 640(explaining that it is not required that the "very action in question has previously been held unlawful, butit is to say that in the light of preexisting law theunlawfulness must be apparent").36
Cases in which "general statements of the law" gave "fair andclear ruling" applied "with obvious clarity" to the conduct inquestion include Drummond v. City of Anaheim, 343 F.3d 1052, 1061-62 (9th Cir. 2003) (holding that officer's allegedconduct in subduing mentally ill citizen violated "clearlyestablished" law because the court "need[ed] no federal casedirectly on point to establish that kneeling on the back and neckof a compliant detainee, and pressing the weight of two officers'bodies on him even after he complained that he was choking and inneed of air violates clearly established law, and that reasonableofficers would have been aware of the same"); and Polk v.District of Columbia, 121 F. Supp. 2d 56, 70-71 (D.D.C. 2000)(holding that, where police officer allegedly directed ride-alongcivilian to detain someone for whom there was no probable cause,the absence of any reported cases addressing that precise conductdid not foreclose a determination that the right to be free fromsuch detentions was clearly established; there was no "openquestion" whether the Constitution outlawed the officer's conductand "there can be little doubt that the Constitution forbidspolice officers to share their authority to conduct searches andseizures with unauthorized civilians").37 Based on these principles, I hold that in 1984, the substantivedue process right to not be murdered by a private actor where agovernment actor aided, abetted, collaborated or conspired withthe private actor to accomplish the murder was clearlyestablished. Although in 1984 the courts had not addressedfactual circumstances "fundamentally similar" to those alleged bythe plaintiffs in this case, "in the light of pre-existing law,the unlawfulness" of Connolly's conduct was "apparent."Anderson, 483 U.S. at 640. The text of the Fifth Amendmentprovided the general prohibition against the government'sdepriving citizens of life. It was also clearly established in1984 that constitutional violations can be effectuated by privateactors acting in concert with government actors. See Sherman v.United States, 356 U.S. at 373 (1958) ("[The] Government cannotdisown [the informant] and insist it is not responsible for hisactions."); Burton, 365 U.S. at 725 (1961) ("The State has sofar insinuated itself into a position of interdependence with[the private business] that it must be recognized as a jointparticipant in the challenged activity, which, on that account,cannot be considered to have been so `purely private' as to fallwithout the scope of the Fourteenth Amendment."); Hoffa v.United States, 385 U.S. at 311 (1966) (an informant is not "tothe slightest degree more free from all relevant constitutionalrestrictions than is any other government agent"); Adickes,398 U.S. at 151 (1970) (private actor's "understanding" with policeofficer to refuse service to a customer was state action subject to constitutional scrutiny), discussed supra. I "needno federal case directly on point," Drummond, 343 F.3d at 1061,to conclude that it was clearly established in 1984 that an FBIagent violates the substantive due process right of an individualto be free from government-sponsored, incited, or provoked murderif the individual is murdered as a result of the disclosure bythe agent to violent criminals that the individual is cooperatingwith the government in investigations of the unlawful activitiesof the criminals, and the agent knows or should know that thecriminals will kill the individual, reasonably believing that theagent will protect them from prosecution for that murder.
Although none of the parties have addressed the issue, I alsohold that, based on the plaintiff's allegations, it wasreasonable for Connolly to have been aware that his conductviolated McIntyre's clearly established right to be free fromgovernment-involved murder. There are no allegations supporting aconclusion that Connolly made a reasonable mistake as to what thelaw required, see Saucier, 533 U.S. at 205, that he wasreasonably ignorant of crucial facts, see Suboh v. DistrictAttorney's Office of Suffolk Dist., 298 F.3d 81, 95 (1st Cir.2002), or that any other circumstance existed that would havemade it unreasonable for Connolly to appreciate that his conductwas unconstitutional. Moreover, while regulations do notestablish constitutional rights, they may provide fair warningthat conduct violates the Constitution. Groh v. Ramirez,540 U.S. 551, 124 S.Ct. 1284, 1293-94 & n. 7 (2004) (explaining thatfederal agency directive that its agents had to be sure a searchwarrant was sufficient on its face before executing it"underscore[d] that [an agent] should have known that he shouldnot execute a patently defective warrant"); Hope,536 U.S. at 744 (state department of corrections regulations concerningpermitted of uses of hitching post provided fair warning thatprison guards' conduct was unconstitutional, when the guards, in violation of theregulations, handcuffed an inmate to the hitching post for sevenhours without water or bathroom breaks). Here, the Guidelinesrequired FBI agents to "ensure that individual rights are notinfringed and that the government itself does not become aviolator of the law." Compl. ¶ 110.
I therefore hold that Connolly is not entitled to qualifiedimmunity on count X of the complaint on this present motion forjudgment on the pleadings under Rule 12(c), and I DENY his motionas to count X.
4. Violation by Other Agents of the Clearly EstablishedSubstantive Due Process Rights of McIntyre
Having found that Connolly violated the clearly established dueprocess right of McIntyre not to be murdered by the government orwith government participation, I turn to the question of whetherthe alleged misconduct of Fitzpatrick, Greenleaf, Kennedy,Morris, or Ring also violated that right. For purposes of thisdiscussion, I will treat Fitzpatrick, Greenleaf, Kennedy, Morris,and Ring as "supervisors." Although the pleadings only identifyGreenleaf, Fitzpatrick, and Ring as formal supervisors at thetime of the murder of McIntyre, the term "supervisor" may be"defined loosely to encompass a wide range of officials who arethemselves removed from the perpetration of the rights-violatingbehavior." Camilo-Robles, 151 F.3d at 6-7.38 Supervisors are not vicariously liable for the constitutionalviolations perpetrated by "subordinates." Carmona v. Toledo,215 F.3d 124, 132 (1st Cir. 2000). Nonetheless, supervisors mayviolate the constitutional rights of a third party by"formulat[ing] a policy or engag[ing] in a practice that leads toa civil rights violation [of the third party] committed byanother." Camilo Robles, 151 F.3d at 7. To be actionable as aconstitutional violation, the offending conduct of the supervisormust manifest, at a minimum, a deliberate indifference to theconstitutional rights of the third party. Id. To pleaddeliberate indifference, a plaintiff must allege "(1) a graverisk of harm; (2) the defendant's actual or constructiveknowledge of that risk, and (3) his failure to take easilyavailable measures to address the risk." Id. A supervisorcannot be faulted for having failed to "take easily availablemeasures to address the risk" of harm posed by the subordinateunless the supervisor actually "had the power and authority toalleviate'" the underlying constitutional violation. Id.(quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,582 (1st Cir. 1994)). In other words, "the plaintiff must`affirmatively connect the supervisor's conduct to thesubordinate's violative act or omission.'" Id. (quotingMaldonado-Denis, 23 F.3d at 582). The affirmative connectionincludes a "knowing sanction" of the rightsviolating conduct, butmay also encompass "tacit approval of, acquiescence in, orpurposeful disregard of" such conduct. Id.39
A supervisor's deliberate indifference to the rights of thirdparties may occur in a variety of circumstances. InCamilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999), forexample, the First Circuit explained that "liability [for violation ofconstitutional rights] attaches if a responsible officialsupervises, trains, or hires a subordinate with deliberateindifference toward the possibility that deficient performance ofthe task eventually may contribute to a civil rightsdeprivation." Other courts have found conduct on the part ofsupervisory law enforcement officials to be deliberatelyindifferent to the constitutional rights of citizens where asupervisor permitted a reinstated officer to carry a weaponwithout reviewing the officer's record,40 failed toexercise his discretion to keep a violent police officer assignedto a desk job to ensure that the violent officer would not comeinto contact with the public,41 formulated rules likelyto result in a subordinate's unjustifiably shooting acitizen,42 and knowingly failed to remedy subordinates'pattern of dangerous or unconstitutional conduct.43 With the foregoing principles in mind, I turn now to thequestion of whether Fitzpatrick, Greenleaf, Kennedy, Morris, andRing were deliberately indifferent to the substantive due processright of McIntyre not to be murdered by the government. Asexplained above, the allegations in this case support theconclusion that the murder of McIntyre was government actionbecause Connolly participated in the murder by disclosingMcIntyre's informant status to Bulger and Flemmi.
Kennedy. Despite the enumeration of wrongs that Kennedy andthe other defendants allegedly committed, see, e.g., Compl. ¶427, the plaintiffs have not alleged conduct by Kennedy thatwould support a conclusion that he was deliberately indifferentto the substantive due process rights of McIntyre. Theallegations concerning Kennedy's conduct, prior to McIntyre'sdeath, essentially amount to the following. Kennedy knew thatBulger and Flemmi were informants for the FBI, and that Connollywas their handler. As early as 1983, Kennedy had some knowledgeof the criminal activities of Bulger and Flemmi. In violation ofthe Guidelines, Kennedy did not share this information with theDEA or attorneys prosecuting cases involving crimes committed byBulger and Flemmi. Kennedy also knew that McIntyre wascooperating with law enforcement agencies investigating Bulger'srole in illegal arms shipments to the IRA. In October 1984,Kennedy interviewed McIntyre and discovered that McIntyre hadinformation incriminating Bulger and Flemmi in the Valhalla arms shipments. Kennedyreported McIntyre's revelations to Greenleaf.
There are no allegations to support an inference that Kennedyknew or should have known of the risk Connolly posed to thesafety of McIntyre. To be sure, one may infer that Kennedy knewthat Bulger and Flemmi were violent criminals, and that McIntyrefaced danger by agreeing to cooperate. The danger that McIntyreassumed, however, inheres in the role of an informant. Indeed,according to the complaint, McIntyre knew the implications ofcooperating — in fact, he was "petrified" of Bulger and Flemmi.Compl. ¶ 247. The danger in incriminating Bulger and Flemmi was arisk McIntyre faced regardless of whether Bulger and Flemmi wereinformants for the FBI. McIntyre did not have a constitutionalright to be free from this risk; so there was no right, based onthe risk alone, to which Kennedy could have been deliberatelyindifferent.
Further, even assuming that Kennedy did have knowledge ofConnolly's rights-violating conduct, the plaintiffs have notalleged that Kennedy failed to take measures easily available tohim to prevent that conduct. The complaint is devoid of anyindication that Kennedy had formal or informal authority overConnolly. The plaintiffs group Kennedy together with all of theother agents in alleging that the agents failed properly tosupervise Connolly (i.e., failed to train him in therequirements of the Guidelines, failed to enforce the Guidelines,permitted Connolly to be the handler of Bulger and Flemmi when itwas apparent he should have been removed from that position). Imust, however, read the complaint in its entirety, and the morespecific allegations concerning Kennedy belie any allegation thathis conduct amounted to a "failure" to change the course of Connolly's conduct or even that he had the "power andauthority," Camilo-Robles, 151 F.3d at 7, to do so.44
Because the plaintiffs have failed to plead deliberateindifference on the part of Kennedy, Kennedy is entitled to thedefense of qualified immunity as to the plaintiffs' allegationsthat he violated the substantive due process rights of McIntyre.
Some additional comments words about the plaintiff'sallegations concerning the conduct of Kennedy are in orderhere.45 As stated above, I premise my analysis of theliability of the agents on the notion that Connolly's act ofrevealing McIntyre's informant status to Bulger and Flemmitransformed the murder of McIntyre from private violence intogovernment action subject to the strictures of the Due ProcessClause. The plaintiffs' claims point to another theory ofgovernment action, the viability of which I do not consider inthis memorandum and order. This theory, in substance, is that themurder of McIntyre was government action because the acts andomission of the agents with respect to Bulger and Flemmi enabledand emboldened Bulger and Flemmi to murder McIntyre.46Under this theory, a determination of whether an agent violatedthe substantive due process rights of McIntyre would not belimited to an analysis of his acts and omissions with respect to Connolly's disclosure of confidentiallaw enforcement information. Instead, each agent would be deemedto have violated McIntyre's substantive due process rights to theextent that the conduct of the agent enabled and emboldenedBulger and Flemmi to murder McIntyre.
Even if I were to apply this theory here, I would still findthat the plaintiffs have not alleged that Kennedy violated thesubstantive due process rights of McIntyre. Regardless of thetheory of government action advanced by the plaintiffs, theobjectionable conduct must meet the conscience-shocking test. Theplaintiffs do not allege facts that support an inference thatKennedy acted with an intent to injure McIntyre. I noted earlierthat the allegations also do not support an inference thatKennedy acted with deliberate indifference with respect toConnolly's violation of McIntyre's rights. Likewise, theallegations are insufficient to support an inference that Kennedyacted with deliberate indifference by extending his ownprotection to Bulger and Flemmi, thereby violating thesubstantive due process rights of McIntyre. The plaintiffs merelyallege that, in 1983, Kennedy allegedly violated the Guidelineswhen he did not inform the DEA that he had obtained informationregarding Bulger's criminal activities in a matter of concern tothe DEA. See Comp. ¶ 251. Any causal connection between thissingle act and the murder of McIntyre is simply too attenuatedreasonably to support an inference of deliberate indifference byreason of Kennedy's protection of Bulger and Flemmi. Finally,Kennedy's ability to assist McIntyre directly was limited.Kennedy did not need to warn McIntyre that he assumed a danger inagreeing to incriminate Bulger and Flemmi. As noted above,McIntyre knew there was a risk in informing on Bulger and Flemmi.Kennedy was not at liberty to reveal the informant status ofBulger and Flemmi to McIntyre, and there is nothing in thecomplaint to support an inference that Kennedy knew or should have known that Connolly would reveal orhad revealed McIntyre's informant status to Bulger and Flemmi.
In sum, neither of the plaintiffs' theories of governmentaction are sufficient to pierce Kennedy's shield of qualifiedimmunity. The alleged misconduct of Kennedy was not conductintended to injure McIntyre; nor do the allegations suggestdeliberate indifference. With "liability for negligentlyinflicted harm" being "categorically beneath the threshold ofconstitutional due process," County of Sacramento,523 U.S. at 848, (and I express no opinion here as to whether the plaintiffshave alleged negligence by Kennedy), the conduct of Kennedy doesnot "shock the judicial conscience," Cruz-Erazo v.Rivera-Montanez, 212 F.3d 617, 623 (1st Cir. 2000).
Fitzpatrick, Greenleaf, and Ring. At the time that McIntyrewas murdered, Greenleaf was the SAC of the FBI Boston Office andFitzpatrick was the ASAC. Ring was the chief of the OrganizedCrime Squad. Thus, all three agents had formal supervisoryresponsibility for Connolly. The plaintiffs have adequatelyalleged that Fitzpatrick, Greenleaf, and Ring knew or should haveknown that Bulger and Flemmi committed acts of violence afterbecoming FBI informants, and that Bulger and Flemmi had a historyof murdering persons — including persons providing information tolaw enforcement agencies concerning the criminal activities ofthe Winter Hill Gang. The plaintiffs also have adequately allegedthat Fitzpatrick, Greenleaf, and Ring knew or should have knownthat Connolly did not observe the Guidelines, that therelationship between Connolly, Bulger, and Flemmi was corrupt,and that Connolly was sharing confidential law enforcementinformation with Bulger and Flemmi. In light of these allegationsand reasonable inferences from them, I conclude that Fitzpatrick,Greenleaf, and Ring had actual or constructive knowledge of therisk Connolly posed to the constitutional rights of informants who incriminated Bulger or Flemmi, including McIntyre. By virtueof the formal supervisory authority of Fitzpatrick, Greenleaf,and Ring over Connolly, their alleged failure adequately tosupervise Connolly — including failing to train Connolly, failingto enforce to the Guidelines, and permitting Connolly to continueas the handler of Bulger and Flemmi — adequately identifies afailure to take easily available measures to alleviate that risk.Thus, the plaintiffs have alleged deliberate indifference thatviolated McIntyre's substantive due process rights on the part ofFitzpatrick, Greenleaf, and Ring.
Morris. The plaintiffs have adequately alleged that Morriswas deliberately indifferent to the rights of McIntyre. Duringthe time that Morris was the direct supervisor of Connolly, heparticipated in, or had actual or constructive knowledge of,Connolly's disclosure to Bulger and Flemmi of the informantstatus of certain persons who were subsequently murdered byBulger or Flemmi, including McIntyre. Although Morris ceased tobe Connolly's formal supervisor in December 1982, Morrismaintained his corrupt relationship with Connolly, Bulger, andFlemmi. The same year that McIntyre was murdered, for example,Morris provided Connolly with confidential law enforcementinformation to pass on to Bulger and Flemmi. See Comp. ¶¶ 239,241. From (1) Morris's role in and/or knowledge of the manner inwhich Connolly, Bulger and Flemmi had responded in the past tothreats of exposure posed by the cooperation with law enforcementagencies of associates of Bulger and Flemmi; and (2) Morris'scontinued involvement with Bulger and Flemmi, including thesharing of confidential law enforcement information with them,one may reasonably infer that Morris knew of and had the power toprevent the unconstitutional conduct of Connolly. I conclude,then, that the plaintiffs have adequately alleged that Morris acted with deliberate indifferenceto the substantive due process rights of McIntyre.
A conclusion that the plaintiffs have alleged deliberateindifference to the rights of McIntyre on the part ofFitzpatrick, Greenleaf, Morris, and Ring does not, however,completely preclude a qualified immunity defense. As with theconduct of Connolly, the alleged misconduct of Fitzpatrick,Greenleaf, Morris, and Ring cannot have violated the substantivedue process rights of McIntyre unless it shocks the conscience.In determining whether the alleged misconduct of Connolly wasconscience-shocking, I considered whether his conduct was"intended to injure in some way unjustifiable by any governmentinterest," which is "the sort of official action most likely torise to the conscience-shocking level." County of Sacramento,523 U.S. at 849. While it is clearly reasonable to infer from theplaintiffs' allegations that Connolly acted with an intent toinjure McIntyre, that same inference is not as obvious withrespect to the allegations against Morris, and even less obviouswith respect to Fitzpatrick, Greenleaf, and Ring.
Nonetheless, something less than conduct intended to injure cansatisfy the conscience-shocking test. Executive conduct taken in"deliberate indifference" may shock the conscience when it was"practical" for the government official to have actuallydeliberated prior to taking the offending course of action. Id.at 851; see also id. at 853 ("When . . . opportunities to dobetter are teamed with protracted failure even to care,indifference is truly shocking."); cf. id. at 854 (holding the"deliberate indifference" standard inapplicable to a high-speedpolice pursuit). The alleged misconduct of Fitzpatrick,Greenleaf, Morris, and Ring consists generally of a failure tosupervise Connolly; this conduct is of the sort where "actualdeliberation is practical." See id. at 850 n. 10 (noting that the Court "ha[d] employed deliberateindifference as a standard of culpability sufficient to identifya dereliction as reflective of municipal policy and to sustain aclaim of municipal liability for failure to train an employee whocauses harm by unconstitutional conduct for which he would beindividually liable"); Shrum ex rel. v. Kluck, 249 F.3d 773,779 (8th Cir. 2001) ("[I]n some circumstances, official policythat is deliberately indifferent to unconstitutional conduct maysatisfy the `shocks the conscience' standard required by [Countyof Sacramento v.] Lewis."). Thus, I may gauge whether theconduct of Fitzpatrick, Greenleaf, Morris, and Ring wasconscience-shocking by applying a test of deliberateindifference. Because this is the very standard I employed aboveto determine whether the conduct of these agents violated afundamental right of McIntyre, I need not consider the questionanew for the purpose of determining whether their conduct wasconscience-shocking. Thus the conclusion: the alleged misconductof Fitzpatrick, Greenleaf, Morris, and Ring was deliberatelyindifferent and therefore conscience-shocking.47
One more step remains before I may conclude that Fitzpatrick,Greenleaf, Morris, and Ring are not entitled to qualifiedimmunity on their motions for judgment on the pleadings. BecauseI am analyzing the conduct of these agents under a theory ofsupervisory liability, I must consider whether the theory ofsupervisory liability on which the plaintiffs rely was clearlyestablished at the time of the relevant conduct. Camilo-Robles,151 F.3d at 6. This is not a difficult analysis. It was clearlyestablished in 1984 that an official can violate the rights of aprivate citizen by failing to supervise his subordinatesadequately. See, e.g., Rizzo v. Goode, 423 U.S. 362, 373-74 (1976) (discussing Hague v. CIO, 307 US 496(1939), and pointing out that in Hague "the pattern of policemisconduct upon which liability and injunctive relief weregrounded was the adoption and enforcement of deliberate policiesby . . . defendants . . . including the Mayor and the Chief ofPolice"); Davis v. Zahradnick, 600 F.2d 458, 459 n. 1 (4th Cir.1979) ("By alleging and swearing that [the prison warden] hadneglected his duty to supervise and control the prison guards,[the plaintiff] proceeded upon a proper theory of § 1983liability, and not upon the discredited [r]espondeat superiordoctrine."); Demarzo v. Cahill, 575 F.2d 15, 17-18 & n. 2 (1stCir. 1978); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)("[A] police officer may not ignore the duty imposed by hisoffice and fail to stop other officers who summarily punish athird person in his presence or otherwise within his knowledge.That responsibility obviously obtains when the nonfeasor is asupervisory officer to whose direction misfeasor officers arecommitted." (emphasis added)); Delaney v. Dias,415 F. Supp. 1351, 1354 (D. Mass. 1976).
The allegations against Fitzpatrick, Greenleaf, Morris, andRing reasonably permit the inference that, through their conductvis-à-vis Connolly's violation of McIntyre's clearly establishedsubstantive due process right not to be murdered by or with theaid of government agents, Fitzpatrick, Greenleaf, Morris, andRing themselves were deliberately indifferent to the substantivedue process rights of McIntyre, and that this deliberateindifference was conscience-shocking. Moreover, it was clearlyestablished at the time of the murder that the agents could beheld liable to the plaintiffs based on the agents' dereliction oftheir supervisory responsibilities. Thus, Fitzpatrick, Greenleaf,Morris, and Ring are not entitled to the defense of qualifiedimmunity with respect to allegations that they violated thesubstantive due process rights of McIntyre. E. Access to the Courts
The agents have moved to dismiss the plaintiffs' Bivensclaims that the agents conspired to deprive them of their rightunder the First and Fifth amendments to access to the courts.Compl. Count XII. The agents argue that these claims fail to meetthe pleading requirements for a claim of denial of access to thecourts, as set forth in the Supreme Court's decision inChristopher v. Harbury, 536 U.S. 403 (2002). Specifically, theagents argue that the denial of access conspiracy claims areinsufficiently pleaded because the complaint fails to allege (1)a valid underlying claim upon which the Estate was denied accessto the courts; (2) that the object of the agents' conspiracy wasto deprive the Estate of its right of access to the courts; and(3) a remedy unique to the denial of access claim and unavailableon any other claim.
In Harbury, the Supreme Court set forth the elements of abackward-looking denial of access claim of the kind involvedhere. 536 U.S. at 415-16. First, the allegations of the complaintmust be sufficient to identify a "nonfrivolous," and "arguable"underlying claim that the plaintiffs would have brought had itnot been for the alleged denial of access. Id. at 415. Thecomplaint must also describe the official acts that deniedaccess. Id. Next, the complaint must identify a remedy that maybe awarded that is unique to the denial of access claim. Id.That is to say, the remedy must be unavailable in any suit thatmay yet be brought. Id. Both the underlying claim and theunique remedy must be set out in the complaint in a mannersufficient to give fair notice to the defendant. Id. at 416. Inaddition to meeting the Harbury requirements, plaintiffsasserting a conspiracy to deny access to the courts must alsoallege that the object of the conspiracy was either (1)unlawfully to deprive the plaintiffs of their right of access tothe courts; or (2) to achieve some lawful aim by depriving the plaintiffs of access tothe courts. See Earle, 850 F.2d at 844.
In count XII of the complaint, the plaintiffs allege thatAhearn, Connolly, Fitzpatrick, Greenleaf, Kennedy, Morris andRing "conspired and confederated together to deny the[plaintiffs'] Estate its clearly established right to seekredress of grievances." Compl. ¶ 467. The plaintiffs claim thatthe conspiracy "result[ed] in lost damages." Id. The plaintiffsdo not make any other allegations concerning the damagesresulting from the alleged conspiracy. As I explained in Estateof Halloran v. United States, 268 F. Supp. 2d 91, 97 (D. Mass.2003), this vague claim for damages does not meet the Harburyrequirement of pleading damages unique to the access to thecourts claim in a manner "sufficient to give fair notice to" theagents. 546 U.S. at 416. This alone vitiates the plaintiffs'claim based on denial of access to the courts. Therefore, I neednot address whether the plaintiffs have otherwise stated a claimfor denial of access to the courts or whether the right wasclearly established at relevant times. Accordingly, the motionsof Ahearn, Connolly, Fitzpatrick, Greenleaf, Kennedy, Morris, andRing for judgment on the pleadings are hereby GRANTED as to countXII of the complaint.
For the reasons discussed above, I hereby order that themotions listed below be disposed of as follows: Ahearn's motion for judgment with prejudice on the pleadings (docket entry 293) is GRANTED; Connolly's motion to dismiss or for judgment on the pleadings on all counts of the complaints asserted against him (docket entry 306) is DENIED as to count X and GRANTED as to counts IX, XI, and XII; Fitzpatrick's motion to dismiss for lack of jurisdiction by reason of failure to state a constitutional claim which defeats defendant's defense of qualified immunity (docket entry 299) is DENIED as to count X and GRANTED as to counts IX, XI, and XII; Greenleaf's motion for judgment with prejudice on the pleadings (docket entry 296) is DENIED as to counts X and XA and GRANTED as to counts IX, XI, and XII; Kennedy's motion for judgment on the pleadings (docket entry 303) is GRANTED; and, Ring's motion for judgment on the pleadings on the basis of qualified immunity (docket entry 297) is DENIED as to counts X and XA and GRANTED as to counts IX, XI, and XII.
I also rule that Morris is entitled to judgment on thepleadings as to counts IX, XI, and XII.
1. Two of these counts are labeled "count X"; I will refer tothe second of the two as "count XA." Because count XIII is arequest for attorneys' fees, I consider it to be a prayer forrelief rather than the assertion of a cause of action.
2. Richard F. Bates, Dennis F. Creedon, Thomas J. Daly, andLawrence Sarhatt.
3. In March 2004, by docket orders in this case, I grantedMorris's motion to join the motion of the individual defendants,but did not issue an order with regard to whether he was entitledto qualified immunity.
4. In his motion for judgment on the pleadings, based onqualified immunity, Connolly also moved for judgment on theground that the plaintiffs' claims are time-barred. On March 24,2004, I denied the motions of Ahearn, Fitzpatrick, Greenleaf,Kennedy, and Morris for judgment on the pleadings based on thestatute of limitations (docket entry 334). I did not dispose ofConnolly's motion in that order, because he had moved forjudgment on the pleadings based on more than one ground.Nonetheless, my ruling set forth in the March 24, 2004 order,that the Bivens claims in this action survive a statute oflimitations defense, on a motion under Rule 12(c), applies toConnolly's motion as well. Thus, to the extent Connolly moves forjudgment on the pleadings, on the ground that the plaintiffs'claims are time-barred, his motion is DENIED.
5. The plaintiffs identify Fitzpatrick simply as a "specialagent" rather than as a special agent in the supervisory role ofan ASAC. In his answer, however, Fitzpatrick admits byimplication that he was an ASAC in the FBI Boston Office, andthat he had some supervisory responsibility over the McIntyrematter at the time of McIntyre's murder. See Fitz. Answer ¶257(c) ("Fitzpatrick says that after McIntyre's disappearance theentire matter was taken away from him by Greenleaf and assignedto a different ASAC." (emphasis added)); Fitzpatrick's admissionis consistent with the findings in United States v. Salemme,91 F. Supp. 2d 141, 225 (D. Mass. 1999) (Wolf, J.) (identifyingFitzpatrick as the FBI Boston Office ASAC in 1984 "withresponsibility for relations with the DEA"), rev'd in part onother grounds by United States v. Flemmi, 225 F.3d 78 (1st Cir.2000), cert. denied, 531 U.S. 1170 (2001). It is appropriatefor me to consider the information from Salemme in ruling onthese motions for judgment on the pleadings. See, e.g.,Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) ("Ordinarily. . . any consideration of documents not attached to thecomplaint, or not expressly incorporated therein, is forbidden[in connection with deciding a motion under Rule 12(b(6)], unlessthe proceeding is properly converted into one for summaryjudgment under Rule 56. However, courts have made narrowexceptions for documents the authenticity of which are [sic] notdisputed by the parties; for official public records; fordocuments central to [the] plaintiffs' claim; or for documentssufficiently referred to in the complaint." (citation omitted));Edwards v. John Hancock Mut. Life Ins. Co., 973 F.2d 1027, 1030n. 1 (1st Cir. 1992) (recognizing that certain items in therecord and in the public record may be considered in a Rule12(b)(6) motion without converting it to a motion for summaryjudgment) (citation omitted); In re American Cont'lCorp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9thCir. 1996) ("[M]atters of public record, including court recordsin related or underlying cases which have a direct relation tothe matters at issue, may be looked to when ruling on a 12(b)(6)motion to dismiss."), rev'd on other grounds sub. nom. LexeconInc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26(1998).
6. The plaintiffs allege that "associates of the Bulger Grouplearned that John McIntrye was cooperating with law enforcementofficials," Compl. ¶ 255, instead of explicitly alleging thatConnolly disclosed McIntyre's informant status to Bulger andFlemmi. All the same, from Connolly's knowledge of McIntyre'scooperation, id. ¶ 254, and general allegations that Connollydisclosed the identity of informants to Bulger and Flemmi, e.g.,id. ¶¶ 88, 103, one may reasonably infer that Connolly revealedMcIntyre's informant status to Bulger and Flemmi.
7. At the time of the murder of McIntyre, Morris had not beenConnolly's direct supervisor for over a year. Nonetheless, Morriswas still mired in his corrupt relationship with Connolly,Bulger, and Flemmi.
8. See also Johnson v. Jones, 515 U.S. 304, 316 (1995)("Many constitutional tort cases . . . involve factualcontroversies about, for example, intent — controversies that,before trial, may seem nebulous."); Rivera-Jimenez v.Pierluisi, 362 F.3d 87, 93 (1st Cir. 2004) (summary judgmentbased on qualified immunity inappropriate where parties disputedgovernment actor's purpose in terminating plaintiff's employment,and termination, if retaliatory, deprived the plaintiff of herrights under the First Amendment); Prokey v. Watkins,942 F.2d 67, 73 (1st Cir. 1991) (summary judgment based on qualifiedimmunity inappropriate where plaintiffs alleged that reasonablelaw enforcement officer would have known warrant was not lawfullyprocured and parties disputed law enforcement officer'sknowledge); Polk v. District of Columbia, 121 F. Supp. 2d 56,65 (D.D.C. 2000) ("Where . . . the applicability of qualifiedimmunity turns on the facts known by public officials at the timeof the challenged conduct and there is a genuine issue withrespect to the existence of such facts or the defendants'knowledge thereof, the issue of qualified immunity is subject todetermination by the factfinder at trial." (internal quotationmarks omitted)).
9. The distinction between claims under the Fourth and Fifthamendments is more than a matter of mere words. As discussedfurther in Part III.D.2, infra, in order to state a claim for aviolation of substantive due process rights, the executiveconduct in question must "shock the conscience." County ofSacramento v. Lewis, 523 U.S. 833 (1998). In contrast, conductsubject to Fourth Amendment scrutiny is unconstitutional merelyif it is "unreasonable." Anderson, 483 U.S. at 640-41.
10. The defendants cite Brower, 489 U.S. 593 at 596-97, insupport of their assertion that a seizure requires "direct policeaction," Def.s' Cons. Mem. at 25, and the plaintiffs haveattributed the quotation "direct police action" to Brower aswell as to the defendants' memorandum, Pl.s' Cons. Br. Opp. at19. Brower, however, does not contain the phrase "direct policeaction" and the level of police participation in the conductcomplained of was not at issue in that case.
11. For additional authority on the application of the FourthAmendment to the conduct of private parties, see Skinner v.Railway Labor Executives' Ass'n, 489 U.S. 602, 614 (1989)(Fourth Amendment does not apply to private action unless theprivate party "acted as an instrument or agent of theGovernment"); United States v. Jacobsen, 466 U.S. 109, 113(1984) (Fourth Amendment inapplicable where private party is "notacting as an agent of the Government or with the participation orknowledge of any governmental official." (quoting Walter v.United States, 447 U.S. 649 (1980) (Blackmun, J., dissenting)));Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971) (where aprivate party acts as an "instrument or agent" of the state ineffecting a search or seizure, Fourth Amendment interests areimplicated); United States v. Pervaz, 118 F.3d 1, 6 (1st Cir.1997) (no single test determines whether action by a privateparty may be imputed to the government for purposes of the FourthAmendment; relevant factors may include the "the government'srole in instigating or participating" in the conduct, "its intentand the degree of control it exercises over . . . the privateparty, and the extent to which the private party aims primarilyto help the government or to serve its own interests"); UnitedStates v. Mendez-de Jesus, 85 F.3d 1, 2-3 (1st Cir. 1996) (wheretwo private citizens brought the defendant to a police station,and there was "no suggestion that the government initiated orparticipated in the citizen action," the Fourth Amendment did notapply and the actions of the citizens did not constitute aseizure under the Fourth Amendment).
12. See also United States v. Lanier, 520 U.S. 259, 272 n. 7(1997) (explaining, in case where jury found state judgecriminally liable for violating the substantive due processrights of an employee and a job applicant by sexually assaultingthem, that Graham "does not hold that all constitutional claimsrelating to physically abusive government conduct must ariseunder either the Fourth or Eighth Amendments."); Poe,282 F.3d at 137 (holding that the Due Process Clause, instead of theFourth Amendment, was "proper source" of constitutional rightviolated when male police officer secretly videotaped plaintiffas she was changing clothes in order to appear in a policetraining video; the objectionable conduct "occurred outside of acriminal investigation or other form of governmentalinvestigation or activity."); Rogers v. City of Little Rock,152 F.3d 790 (8th Cir. 1998) (holding that plaintiff's claim thatpolice officer stopped her for traffic violation, followed herhome, entered her residence and raped her was properly analyzedas substantive due process violation); Jones v. Wellham,104 F.3d 620, 628 (4th Cir. 1997) (holding that plaintiff's claimthat uniformed officer raped plaintiff after he insisted ongiving the allegedly intoxicated plaintiff a ride home wassubstantive due process claim; "[b]ecause the harm inflicted didnot occur in the course of an attempted arrest or apprehension ofone suspected of criminal conduct, the claim was not one of aFourth Amendment violation but of the violation of thesubstantive due process right"); cf. Cummings v. McIntire,271 F.3d 341, 344 (1st Cir. 2001) ("Claims of excessive force by apolice officer arising outside the context of a seizure, and thusoutside the Fourth Amendment, are analyzed under substantive dueprocess principles.").
13. See also Ford v. Moore, 237 F.3d 156, 165 (2d Cir. 2001)(reversing the denial of an officer's motion for summary judgmenton the basis of qualified immunity where plaintiff had allegedthat the officer violated the decedent's rights by conspiring tocover up the fact that his subordinates had shot and killed thedecedent: "Even if there were a viable claim [against theofficer] for conduct after [the decedent's] death, the deathwould have extinguished claim of [the decedent]."); Silkwood v.Kerr-McGee Corp., 637 F.2d 743, 749 (10th Cir. 1980) (affirminggrant of FBI agents' motion to dismiss Bivens claim that theagents were part of a conspiracy to kill the decedent whereplaintiff alleged that agents joined conspiracy after decedent'sdeath: "[W]ith the death of [the decedent], the conspiracy toviolate her rights terminated. Thus, the FBI defendants could notbe held liable for the prior violations of [the decedent]'sconstitutional rights even if a Bivens claim encompasses arelation back theory of conspiracy."); Guyton v. Phillips,606 F.2d 248, 251 (9th Cir. 1979) (affirming dismissal of claim forthe violation of the decedent's civil rights against officialswhose alleged misconduct consisted of covering up thecircumstances of the decedent's death; "[I]nasmuch as [thedecendent]'s civil rights must terminate with his death, so mustany conspiracy to deprive him of those rights.").
14. Indeed, the agents' alleged failure to form or execute aplan to protect McIntyre is the very conduct at the heart of theclaim of the plaintiffs.
15. As demonstrated below in Part III.D.2.C(ii), infra, myholding regarding count XI does not preclude a substantive dueprocess claim where a plaintiff has alleged facts supporting aninference that the agents agreed to violate McIntyre'ssubstantive due process right, even if the plaintiff has notexplicitly based the claim on a conspiracy theory.
16. Substantive due process analyses under the Fifth andFourteenth amendments are identical. See, e.g., Reno v. Flores,507 U.S. 292, 301-02 (1993).
17. See, e.g., Hemphill, 141 F.3d at 419; Dwares v. City ofNew York, 985 F.2d 94, 96 (2d Cir. 1993) (police officers'conduct in encouraging a group of skinheads physically to attackflagburning demonstrators was conscience-shocking).
18. In Jonathan Swift's 1729 satirical work A ModestProposal: For Preventing the Children of Poor People in Irelandfrom Being a Burden to Their Parents or Country, and for MakingThem Beneficial to the Public, the author proposes that thewhole population of faminestricken Ireland would benefit fromeating the babies of Irish parents too poor to provide for them.
19. See also, e.g., Berger v. United States, 295 U.S. 78, 88(1935) (explaining that in prosecuting crime, while thegovernment "may strike hard blows, [it] is not at liberty tostrike foul ones"); Olmstead, 277 U.S. at 470 ("It is a lessevil that some criminal should escape than that the governmentshould play an ignoble role.") (Holmes, J., dissenting).
20. I recognize that many federal courts refer to thisexception as the "special relationship" exception, but theSupreme Court never has adopted the term in discussing whether anindividual has a right to protection from third-party violence.Instead, in DeShaney, the Court rejected the plaintiffs'argument that a supposed "special relationship" between the stateand Joshua gave rise to a governmental duty to protect the child,and the Court used the term only in characterizing theplaintiff's argument and in referring in a parenthetical to a"special relationship" as possibly giving rise to a common lawaffirmative duty to act. Id. at 202. Thus, use of the phrase "special relationship" to refer to thegovernment's constitutional duty to protect those whom it hasphysically restrained by incarceration, institutionalization, orsimilar methods is overly broad and possibly misleading. Thegovernmental restraints of freedom described in DeShaney mightbe characterized as a "special relationship," but, because a"special relationship" is also a basis for tort liability, thedanger in transporting the term to the narrower field ofconstitutional liability is that plaintiffs may point to casesdefining the government/plaintiff relationship as "special" undertort law, see, e.g., McIntyre v. United States, 367 F.3d 38,54 (1st Cir. 2004) (reversing my dismissal of tort claimsagainst the United States on the basis of the statute oflimitations, and acknowledging that the tort claims "arise outof a special duty that the government has to confidentialinformants who would be endangered if their informant status wererevealed to others" (emphasis added)), to bolster arguments thatthe governmental restraint of freedom exception of DeShaneyapplies to their substantive due process claims.
21. See also Hasenfus, 175 F.3d at 71 (affirming dismissalof § 1983 claim in which parents alleged that the board ofeducation, a gym teacher, and others had violated the substantivedue process rights of their daughter who had attempted suicide atschool; explaining that "[t]he main exceptions to [the generalDeShaney rule] are incarcerated prisoners or involuntarilycommitted mental patients for whom a set of unique rules hasdeveloped" and that this custodial relationship did not existbetween the daughter and school officials); Frances-Colón v.Ramirez, 107 F.3d 62, 63-64 (1st Cir. 1997) (affirming summaryjudgment in favor of government-employed doctors in § 1983 actionby parents alleging that the doctors who delivered the parents'baby violated the baby's substantive due process rights byfailing to perform a cesarean delivery; "A substantive dueprocess interest in `bodily integrity' . . . cannot support apersonal injury claim under section 1983 against the provider ofa governmental service unless: (a) the government has taken theclaimant into custody or otherwise coerced the claimant into asituation where he cannot attend to his own well-being . . .; or(b) the government employee, in rare and exceptional case[s],affirmatively acts to increase the threat of harm to the claimantof affirmatively prevents the individual from receivingassistance.").
22. Further, the plaintiffs' characterization of thegovernment's obligation to the informants as a "duty of care"betrays the argument that the agents' failure to protect McIntyrefrom private violence was a wrong of constitutional dimension.The existence of a "duty of care" is an element of a negligenceclaim, see Magarian v. Hawkins, 321 F.3d 235, 238 (1st Cir.2003), but "liability for negligently inflicted harm iscategorically beneath the threshold of constitutional dueprocess," County of Sacramento, 523 U.S. at 849.
23. See also Martinez v. Colon, 54 F.3d 980, 984-85 (1stCir. 1995) (citing Deshaney and noting that the plaintiff hadnot sought to avoid the general rule of DeShaney by allegingthat "the state made him more vulnerable to [the harassingofficer]'s actions"); Doe v. Town of Bourne, 2004 WL 1212075,at *7 (D. Mass. May 28, 2004) (Woodlock, J.) (acknowledgingviability of theory); Coyne v. United States,270 F. Supp. 2d 104, 120 (D. Mass. 2003) (same); Willhauck v. Mansfield,164 F. Supp. 2d 127, 134-135 (D. Mass. 2001) (same).
24. See also United States v. Groll, 992 F.2d 755, 759 n. 3(7th Cir. 1993) ("A confidential informant is an agent of thegovernment for entrapment purposes."); United States v.Campbell, 874 F.2d 838, 843-45 (1st Cir. 1989) (holding that ajury was adequately charged on the entrapment defense when thedistrict court's instruction permitted a finding that theinformant's conduct could be imputed to the government); UnitedStates v. Bueno, 447 F.2d 903, 905 (5th Cir. 1971) (reversingdefendant's conviction on the basis of entrapment: "There is noevidence from which to infer that the [government official] knewof this activity of the Informer, who was employed only on atemporary basis. However, we believe that the facts must beviewed in their entirety for the purpose of considering theireffect on this prosecution. Both the [government official] andthe Informer must be treated as acting in concert, each with fullknowledge of the actions of the other.").
25. See, e.g., United States v. Bogart, 783 F.2d 1428,1432-34 (9th Cir. 1986) (holding that criminal defendant had madea sufficient showing of government "outrageous conduct" torequire the district court to make finding of facts on whetherprosecution would violate the defendant's due process rights),vacated in part as to other defendant in United States v.Wingender, 790 F.2d 802 (9th Cir. 1986); United States v.Sabri, 973 F. Supp. 134, 139 (W.D.N.Y. 1996) (granting motion todismiss indictment where government had used defendant's attorneyin informant-like role to investigate defendant's possiblecriminal activity; as government agent, attorney's conduct wasattributable to the government); United States v. Gardner,658 F. Supp. 1573, 1574, (W.D. Pa. 1987) (dismissing indictmentbecause government informant's "outrageous conduct" inmanipulating criminal defendant into acquiring cocaine for theinformant violated defendant's due process rights and barred thegovernment from seeking a conviction; citing Sherman in findingthat the informant was an agent of the government, and citingUnited States v. Twigg, 588 F.2d 373 (3d Cir. 1978), findingthat "the government initiated and was actively involved in thecriminal enterprise itself"); United States v.Batres-Santolino, 521 F. Supp. 744, 751 n. 4 (N.D. Ca. 1981)(dismissing indictment based on government informant's outrageousconduct; noting that government "wisely" did not argue thatinformant's conduct could not be attributed to government); cf.United States v. Merlino, 2000 WL 294880, at *2 (D. Mass. Mar.10, 2000) (recognizing that government's outrageous conduct inusing informant to investigate criminal activity can violate adefendants due process rights and bar the government from seekinga conviction) (Stearns, J.); United States v. Ayyub,998 F. Supp. 81, 83-84 (D. Mass. 1998) (same).
26. "The standards used for determining the existence offederal government action under the Fifth Amendment are identicalto those used for finding state action under the FourteenthAmendment." Gerena v. Puerto Rico Legal Servs., Inc.,697 F.2d 447, 449 (1st Cir. 1983).
27. The obvious corollary to the Burton rule is that privateactors may also be held liable for constitutional deprivationswhen the government is sufficiently involved in the conduct inquestion. Courts considering whether a government actor violatedthe Constitution through conduct partly attributable to a privateparty have relied on cases addressing this corollary, and viceversa, and I follow the same path in this memorandum and order.E.g., compare Blum v. Yaretsky, 457 U.S. 991 (1982) (explainingthat the state can be held liable for constitutional wrongsresulting from a private decision) with Lebron v. Nat'l R.R.Passenger Corp., 513 U.S. 374, 378 (1995) (citing Blum inanalyzing whether Amtrak violated artist's rights under the FirstAmendment by rejecting the artist's lease of billboard space);compare Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)(holding that private party could be held liable for an allegedviolation of constitutional rights based on the private entity'salleged conspiracy with local police) with Fries v. Barnes,618 F.2d 988, 990 (2d Cir. 1980) (citing Adickes in holding thatthe plaintiff had adequately alleged a § 1983 claim againstpolice officers and private physicians for violating his rightsunder the Fourth Amendment by claiming that the officers and thephysicians conspired to gather evidence from the plaintiff'sperson and effects while he was unconscious and undergoingtreatment for a gunshot wound); see also Lugar v. Edmondson OilCo., Inc., 457 U.S. 922, 939 (1982) (citing Burton asproviding a basis for analyzing whether private entity may beliable for constitutional violations); McQueen v. Druker,438 F.2d 781, 784 (1st Cir. 1971) (citing Burton as providing abasis for analyzing whether private entity could be liable forconstitutional violations).
28. See also id. at 725 ("Because readily applicableformulae may not be fashioned, the conclusions drawn from thefacts and circumstances of this record are by no means declaredas universal truths on the basis of which every state leasingagreement is to be tested."). Subsequent Supreme Court decisions reiterated the twoprinciples of Burton: that private action that has a sufficientnexus to state authority can be "state action" for purposes ofholding the public and private parties liable for violating equalprotection and other constitutional rights, and that there is nouniversal test for determining whether that nexus exists. InReitman v. Mulkey, 387 U.S. 369 (1967), the Court upheld aruling by the highest court of California that a state lawallowing persons to decline to sell real estate interests towhomever they chose violated the Equal Protection Clause becausethe law "invalidly involved the State in racial discriminationsin the housing market." Id. at 375. The Court reiterated boththe "necessity for a court to assess the potential impact ofofficial action in determining whether the State hassignificantly involved itself with invidious discriminations,"id. at 380, and, citing Burton, that "formulating aninfallible test" for making such a determination was an"impossible task," id. at 378; see also, e.g., Evans v.Newton, 382 U.S. 296, 299 (1966) (concluding that "[c]onductthat is formally `private' may become so entwined withgovernmental policies or so impregnated with a governmentalcharacter as to become subject to the constitutional limitationsplaced upon state action" and acknowledging that "[w]hat is`private' action and what is `state' action is not always easy todetermine").
29. Burton used the expressions "joint participant" and"position of interdependence" to describe the requisite level ofgovernment involvement. In Reitman, the Court employed the term"significantly involved," 387 U.S. at 380, but latercharacterized Reitman as being "based on a theory that . . .the State was abetting a refusal to rent apartments on racialgrounds," Palmer v. Thompson, 403 U.S. 217, 224 (1971)(emphasis added). The Evans court spoke of private conduct"entwined with governmental policies." 382 U.S. at 299. InBlum, the Court stated that the government could be responsiblefor a private decision "only when it has exercised coercive poweror had provided such significant encouragement, either overt orcovert, that the choice must in law be deemed to be that of theState." 457 U.S. at 1004; see also Edmondson Oil Co.,457 U.S. at 939, (pointing out that the Court has articulated the "publicfunction," "state compulsion," "nexus," and "joint action" testsfor determining whether private conduct was under "color of law"and observing that the tests might be "different in operation orsimply different ways of characterizing the necessarilyfact-bound inquiry").
30. Gerena, 697 F.2d at 449 n. 2 ("We note that the variousformulae established in the many Supreme Court opinions examiningthe existence of state action are not tests in the traditionalsense. More precisely, they are different methods of analyzingand appraising the facts and circumstances of a particularcase.").
31. The court also found that the plaintiff had alleged aviolation of his due process rights under a state-created dangertheory. Id. at 99. Reasoning that "it requires no stretch toinfer that [the officers'] prior assurances would have increasedthe likelihood that the `skinheads' would assault thedemonstrators," the court concluded that the complaint "assertedthat the defendant officers indeed had made the demonstratorsmore vulnerable to assaults." Id. The court's analyses underthe state-created danger and the "aiding and abetting" theorieswere nonetheless distinct. Id. at 99; see also Hemphill,141 F.3d at 419 ("We held in Dwares, that where the state actorsactually contributed to the vulnerability of the plaintiff, orwhere the state actors aided and abetted a private party in thedeprivation of a plaintiff's civil rights, a violation of the DueProcess Clause does occur." (emphasis added)).
32. In Cummings, the First Circuit cited Hemphill as anexample of police misconduct of "constitutional dimension" thatcould give rise to a claim of violation of due process rights.271 F.3d at 346. The court characterized Hemphill as a case of"police officers aiding a third-party in shooting the plaintiff."Id. See also Burton v. Stergue, 1998 WL 893151 (D. Conn. Sept.29, 1998). In that case, the plaintiff brought a § 1983 claimagainst private citizens as well as state and local officials,alleging, inter alia, that the defendants conspired to and didviolate her constitutional right to be free from bodilypunishment and her right to attend a public meeting. When theplaintiff (an attorney) attempted to attend a municipalconservation commission meeting on the property of a landowneragainst whom a client of the plaintiff had filed suit, thelandowner physically assaulted the plaintiff. The plaintiffclaimed that some commission members prevented others from comingto the plaintiff's assistance and let the assault continue. On amotion to dismiss, some of the defendants argued that theplaintiff's § 1983 claim was "fatally flawed" because it was"based upon an alleged assault by two private individuals withoutgovernmental involvement" and the government's failure to protectcitizens from private violence did not violate the plaintiff'sdue process rights. Id. at *5. The court, however, agreed withthe plaintiff that, as to the commissioner's act of restrainingthose attempting to assist the plaintiff, the plaintiff hadalleged a conspiracy to violate her constitutional rights ratherthan a failure to protect her from private violence; preventingothers from helping the plaintiff was an overt act in furtheranceof that conspiracy. The court concluded that the commissioner"`aided and abetted' action `physically undertaken by privateactors in violation of the plaintiff's [constitutional] rights.'"Id. at *7 (quoting Dwares, 985 F.2d at 98 (alteration inoriginal)); cf. Ghandi v. Police Dept. of the City of Detroit,747 F.2d 338, 352 (6th Cir. 1984) (FBI agents who worked closelywith informant not entitled to summary judgment on Bivens claimthat FBI agents had instructed informant to violate plaintiffs'First Amendment rights; characterizing the FBI agents as the"supervisors" of the informant, the court explained that"[s]upervisory personnel are subject to liability where evidenceestablishes that they authorized [or] approved . . .unconstitutional conduct of the offending officers" (quotingHays v. Jefferson County, 668 F.2d 869, 874 (4th Cir.1982))) (second and third alternations in original), judgmentfor defendants after trial aff'd, 823 F.2d 959 (6th Cir. 1987);Blake v. Doyle, 1999 WL 1044211 (N.D. Ill. Nov. 9, 1999) (wherethe plaintiff alleged "there were many other state and localemployees aiding and abetting" burglary of plaintiff's residenceby non-state actor, the plaintiff's allegations arguablysatisfied the state action requirement of a § 1983 claim; theplaintiff's claim nonetheless failed because she had not allegedfacts such as who the state and local employees were, for whatagencies they worked, and the nature of the challenged conduct).
33. Cf. Kadar Corp. v. Milbury, 549 F.2d 230, 233-34 (1stCir. 1977) (reversing dismissal of claim under § 1983 or §1985(3) that defendant conspired with municipal officials toadopt discriminatory rules and regulations that prevented theplaintiff from developing residential housing; claim ofconspiracy survived dismissal at the pleading stage whereplaintiff alleged that the defendant "aided and abetted" certainabuses).
34. As I explained in Part III.D.2.b, supra, thegovernment's interest in prosecuting the LCN did not justifytaking the life of the decedents.
35. The quotations the Court cited from Judge Daughtrey'sdissent in the Seventh Circuit's Lanier opinion originated inK.H. ex. rel. Murphy v. Morgan, 914 F.2d 846, 850-52 (7th Cir.1990), a case in which the Seventh Circuit, in affirming thedistrict court's denial of motion to dismiss based on qualifiedimmunity, held that a child's due process right "not to be placedwith and shuffled among foster parents known to be incompetentand indeed dangerous" was clearly established. The court reliedon a Supreme Court decision that the Constitution requires thestate to take steps to prevent children in state institutionsfrom deteriorating physically or psychologically, and on acircuit decision that a state cannot avoid certainresponsibilities merely by delegating custodial responsibility toan irresponsible private person, in finding that the due processright of the child was "clearly established."
36. See also Drummond v. City of Anaheim, 343 F.3d 1052,1061 (9th Cir. 2003) ("[N]otwithstanding the absence of directprecedent, the law may be, as it was here, clearly established.Otherwise, officers would escape responsibility for the mostegregious forms of conduct simply because there was no case onall fours prohibiting that particular manifestation ofunconstitutional conduct." (quoting Deorle v. Rutherford,272 F.3d 1272, 1285-86 (9th Cir. 2001))); Clem v. Corbeau,284 F.3d 543, 553 (4th Cir. 2002) ("When `the defendants' conduct is sopatently violative of the constitutional right that reasonableofficials would know without guidance from the courts that theaction was unconstitutional, closely analogous pre-existing caselaw is not required to show that the law is clearly established.'To hold otherwise would allow an officer who understood theunlawfulness of his actions to escape liability simply becausethe instant case could be distinguished on some immaterial fact,or worse, because the illegality of the action was so clear thatit had seldom been litigated." (quoting Mendoza v. Block,27 F.3d 1357, 1361 (9th Cir. 1994)) (additional citation omitted));id. at 554 ("The lack of more cases with similar facts is dueto the clarity, rather than the ambiguity, of the [case lawprecedent]."); Johnson v. Newburgh Enlarged Sch. Dist.,239 F.3d 246, 253 (2d Cir. 2001) ("To the extent that no caseapplying this right [to be free from excessive force] in theeducational setting has previously arisen in our circuit . . .[is] a strong indication that the right to be free from excessiveforce is so well-recognized and widely observed by educators inpublic schools as to have eluded the necessity of judicialpronouncement."); Eberhardt v. O'Malley, 17 F.3d 1023, 1028(7th Cir. 1994) ("This is such an elementary violation of theFirst Amendment that the absence of a reported case with similarfacts demonstrates nothing more than widespread compliance withwell-recognized constitutional principles."); McDonald v.Haskins, 966 F.2d at 295 (7th Cir. 1992) ("In sum, that noprecisely analogous case exists does not defeat [plaintiff]'sclaim. It would create perverse incentives indeed if a qualifiedimmunity defense could succeed against those types of claims thathave not previously arisen because the behavior alleged is soegregious that no like case is on the books. As we recognized inK.H. ex rel. Murphy . . . the easiest cases don't even arise."(internal quotation marks omitted)).
37. See also Clem, 284 F.3d at 553-54 (holding that, whereSupreme Court had held that deadly force cannot be used by apolice officer to seize an unarmed nondangerous suspect, officerswho, in response to a call from a woman requesting assistancewith her mentally ill husband who had not taken his medications,subjected the husband to pepper spray and shot him three times,violated the husband's clearly established Fourth Amendmentrights); Skrtich v. Thornton, 280 F.3d 1295, 1304 (11th Cir.2002) (holding that, where Supreme Court cases held thatprisoners cannot be subjected to gratuitous disproportionateforce that has no object but to inflict pain, guards who severelybeat a prisoner during a cell extraction after they had renderedthe prisoner completely inert by an electric shock, violated theclearly established Eighth Amendment rights of the prisoner; theabsence of cases concerning gratuitous force in the context of acell extraction did not preclude a determination that the rightin question was clearly established); Newburgh Enlarged Sch.Dist., 239 F.3d at 253; (holding that absence of precedentialcase law expressly holding that students have a substantive dueprocess right not to be struck by a teacher did not preclude adetermination that gym teacher who grabbed student by the throat,lifted him off the ground by his neck, dragged him across the gymfloor to the bleachers, choked him and slammed the back of hishead against the bleachers four times, rammed his forehead into ametal fuse box and punched him in the face, violated the clearlyestablished substantive due process rights of the student);McBridge v. Village of Michiana, 100 F.3d 457, 461 (6th Cir.1996) (holding that "[a]lthough no Supreme Court or Sixth Circuitdecisions had, at that time, applied time-honored First Amendmentprinciples to a situation specifically involving governmentalretaliation against a news reporter," town officials who hadallegedly retaliated against reporter after she published reportscriticizing the local government violated the clearly establishedFirst Amendment rights of the reporter); McDonald,966 F.2d at 295 (holding that police officer who held a gun to the head of a9-year old boy and threatened to pull the trigger violated therights of the boy even though no closely analogous case existed;explaining that "[i]t should have been obvious . . . that histhreat of deadly force . . . was objectively unreasonable giventhe alleged absence of any danger").
38. Although the plaintiffs allege that all of the agents areliable for the violation of McIntyre's substantive due processrights, the plaintiffs explicitly seek to hold Ring and Greenleafliable for the murder of McIntyre under a theory of supervisoryliability. See Compl. Count XA. At the time of the murder ofMcIntyre, Ring and Greenleaf were indeed the formal supervisorsof Connolly. As chief of the OCS, Ring was the direct supervisorof Connolly. Greenleaf, as SAC of the FBI Boston Office, hadsupervisory authority over all the agents in the office. However,in light of the loose definition of the term "supervisor" and ofmy duty to determine whether the plaintiffs' complaint "setsforth facts sufficient to justify recovery on any cognizabletheory," Soto-Negron v. Taber Partners I, 339 F.3d 35, 38 (1stCir. 2003) (emphasis added) (quoting Martin v. Applied CellularTech., Inc., 284 F.3d 1, 6 (1st Cir. 2002)), I do not limit theapplication of supervisory liability to Ring and Greenleaf.
39. "[S]upervisory liability does not require a showing thatthe supervisor had actual knowledge of the offending behavior; he`may be liable for the foreseeable consequences of such conductif he would have known of it but for his deliberate indifferenceor willful blindness.'" Camilo-Robles, 151 F.3d at 7 (quotingMaldonado-Denis, 23 F.3d at 582).
40. Diaz v. Martinez, 112 F.3d 1 (1st Cir. 1997) (affirmingdenial of police supervisor's motion for summary judgment basedon qualified immunity where supervisor permitted reinstatedsubordinate officer to carry a firearm without restrictions andsubordinate subsequently shot plaintiff in a small scuffle; hadthe supervisor fulfilled his duty to review the subordinate'sbackground before permitting him to carry a gun, supervisor wouldhave discovered that four years earlier the subordinate had beeninvoluntarily committed after capturing the police station andgun point and holding several fellow police officers hostage).
41. Camilo-Robles, 151 F.3d at 13-14.
42. Harris v. Roderick, 126 F.3d 1189, 1202-04 (9th Cir.1997) (affirming the denial of FBI officials' motion fordismissal based on qualified immunity where FBI sharpshooter,adhering to the officials' special rules of engagement requiringthe sharpshooter to shoot at any male carrying a weapon,regardless of the absence of any immediate danger, fatally shotthe plaintiff's decedent).
43. See, e.g., Maldonado-Denis, 23 F.3d at 582 ("A causallink [between the conduct of the supervisor and theunconstitutional act of the subordinate] may also be forged ifthere exists a known history of widespread abuse sufficient toalert a supervisor to ongoing violations. When the supervisor ison notice and fails to take corrective action, say, by bettertraining or closer oversight, liability may attach."); Smith v.Rowe, 761 F.2d 360, 369 (7th Cir. 1985) (upholding judgmentunder § 1983 claim against director of state department ofcorrections where subordinates' segregation of inmate fortwenty-two months violated the inmate's clearly establishedconstitutional rights, and the director "knew of the actions ofhis subordinates which resulted in a constitutional violation"and "failed to take any preventive action"); see also Jensen v.City of Oxnard, 145 F.3d 1078, 1086-87 (9th Cir. 1998) ("[I]fpolice officials knew [the subordinate police officer] was likelyto inflict a constitutional injury or if their practices andpolicies showed a `deliberate indifference' to the danger such anindividual posed, they should be liable under § 1983. Because,under [the plaintiff]'s version of the shooting, [the subordinatepolice officer] `could not have reasonably believed the use ofdeadly force was lawful,' none of the individual [supervisory]defendants are entitled to qualified immunity at this stage.").
44. Cf. Treadway v. Gateway Chevrolet Oldsmobile Inc.,362 F.3d 971, 983 n. 10 (7th Cir. 2004) (explaining that where a"general allegation might be enough to sustain a complaint underthe liberal pleading requirements of [Fed.R. Civ. P. 8], . . .`if a plaintiff does plead particulars, and they show he has noclaim, then he is out of luck — he has pleaded himself out ofcourt'" (quoting Thomas v. Farley, 31 F.3d 557, 558-59 (7thCir. 1994)))
45. These comments apply also to the allegations concerningFitzpatrick, Greenleaf, Morris, and Ring.
46. Cf. McIntyre v. United States, 367 F.3d 38, 53-54 (1stCir. 2004) (recognizing that the plaintiffs' claims against theUnited States "are based on two interrelated theories of how theFBI caused McIntyre's death: (1) by leaking his confidentialinformant status to Bulger and Flemmi, in violation of a specialduty of non-disclosure owed to him by the government, and (2) byprotecting Bulger and Flemmi from investigation and prosecution,thus enabling and emboldening them to murder him").
47. The allegations supporting a conclusion that the conductof Connolly was conscience-shocking because it was conduct"intended to injure" also support a finding that his conduct wasconscience-shocking under the less exacting "deliberateindifference" standard.