Maine Drowning Suit to Proceed

A federal court judge has refused to dismiss a wrongful death – civil rights lawsuit against the City of Portland and a firefighter, brought by the family of a man who drowned in 2020. Eric Cohen died on April 12, 2020 after he fled from police and jumped into the frigid bay waters.

The lawsuit alleges that police and firefighters watched Cohen succumb to hypothermia and drown without taking appropriate steps to rescue him. The allegations contained in the complaint appear to come largely from police body cam footage from the incident.

The suit named the city, two police officers and one firefighter, accusing them of depriving Cohen of his life in violation of the Maine and federal constitutions due to their “deliberate indifference” which was “so extreme and egregious” as to “shock the conscience.” The city and responders counter that they had no duty to rescue Cohen, and even if they did, their behavior fell short of that necessary to violate Cohen’s civil rights.

In granting in part, and denying in part, the motion to dismiss, US District Court Judge Nancy Torresen ruled (citations and quotations removed to facilitate reading:

  • The Defendants contend that the Plaintiff fails to state a plausible substantive due process claim against any of the individual Defendants.
  • Specifically, the Defendants contend that the state-created danger claims fail against the individual Defendants because the Plaintiff voluntarily assumed the risks posed by entering the frigid waters, and because the Complaint fails to allege affirmative acts by the individual Defendants, as required under the state-created danger doctrine.
  • I begin with the concept that Cohen voluntarily assumed the risk of drowning by entering the frigid waters of the Back Cove.
  • Under the state-created danger doctrine, a government official must actually have created or escalated the danger to the plaintiff and the plaintiff cannot have voluntarily assumed those risks.
  • Neither party addresses whether an individual in a psychotic state could have acted voluntarily, and this is an area that would benefit from further factual and legal development.
  • At the motion to dismiss stage, I decline to state as a matter of law that, on the facts alleged, no viable state-created danger claim is presented based on Cohen’s assumption of risks.
  • While the Defendants are correct that mere state inaction is not cognizable as a substantive due process violation, viewed in total and with all inferences drawn for the Plaintiff, the Complaint plausibly alleges a series of affirmative actions that created or enhanced the danger to Cohen sufficient to assert a state-created danger claim against the City.
  • But in asserting a § 1983 claim against individual officers, a plaintiff must show that each officer’s own actions, could give rise to a state-created danger claim.
  • I agree with the Defendants that the facts alleged in the Complaint do not support a state-created danger claim as to [either police officer].
  • The facts alleged in the Complaint are minimally sufficient to support the due process claim against [Firefighter Ronald] Giroux.
  • According to the Complaint, Giroux shouted from the shore, “I will kick his ass if he comes out of the water.”
  • The Defendants levy two attacks on the due process claim against Giroux, but I do not find either convincing. First, the Defendants argue that “[t]here is no allegation that Mr. Cohen even heard [Giroux’s] comment.”
  • While the Complaint does not specifically allege that Mr. Cohen heard this comment, at the motion to dismiss stage, I must make all reasonable inferences in the Plaintiff’s favor.
  • Here, I can infer that Cohen heard Giroux’s comment.
  • Second, the Defendants assert that “Mr. Giroux cannot be held liable for simply being present.” But the Plaintiff is not seeking to hold Giroux liable for simply being present; rather, he has alleged facts demonstrating that Giroux’s affirmative act, yelling a threat, enhanced the danger to Cohen.
  • Moreover, this affirmative act is at least arguably conscience-shocking, particularly since it was made when Cohen was about to drown.
  • Although “[f]ear or emotional injury which results solely from verbal harassment or idle threats is generally not sufficient to constitute an invasion of an identified liberty interest,” this “does not mean that under no circumstances will verbal threats or harassment rise to the level of a constitutional violation.”
  • Conduct that is “intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”
  • Thus, while this is a close call given the limited involvement of Giroux, the Plaintiff has plausibly alleged a state-created danger claim as to Giroux.
  • [The court held the police officers were entitled to tort immunity on the wrongful death counts, but declined to extend the protection to Giroux stating] “[a] governmental official will not be shielded from liability . . . for actions that so clearly exceed the scope of the official’s authority that the official cannot be said to be acting in an official capacity.”
  • Here, the Defendants have not explained how Giroux’s conduct- i.e., his decision to yell “I will kick his ass if he comes out of the water” – falls within the scope of his employment or within the scope of the discretion he possessed as a firefighter.
  • Because it is not clear to me whether Giroux can be said to have been acting in an official capacity when he made this statement.
  • I decline to find at this stage that Giroux is entitled to immunity.

Here is a copy of the decision:

Here is the original complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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