“From Silence to Liability” – The First Circuit’s Expansion of Affirmative-Act Liability under the State-Created Danger Doctrine in Doe v. City of Boston

1. Introduction

In Doe v. City of Boston, the United States Court of Appeals for the First Circuit revisited the contours of the state-created danger doctrine, a substantive due-process pathway for holding state actors liable when their conduct enhances the risk of harm inflicted by private parties. The decision—issued on 25 July 2025—arose from the harrowing facts of Patrick Rose, Sr., a Boston Police Department (BPD) officer who sexually abused his stepchildren throughout the 1990s. When the victims, now adults, sued numerous actors (the City, BPD officials, police-union actors, and state child-protection employees), the district court dismissed their federal claims in entirety. The First Circuit vacated in substantial part, holding that plaintiffs plausibly pled that several affirmative acts by officials enhanced the danger to the children, thereby satisfying the first prong of the four-part Irish v. Fowler test, and remanded for further analysis.

2. Summary of the Judgment

• Vacated – dismissal of § 1983 substantive due-process claims against BPD officers, certain Department of Children and Families (DCF) employees, and the City of Boston (Monell liability).
• Affirmed – dismissal of § 1985 conspiracy claims against all defendants and of § 1983 claims based on the Commissioner’s 1998 reinstatement of Rose.
• Remanded – for the district court to analyze remaining prongs of the state-created danger test and to revisit Monell liability.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• DeShaney v. Winnebago County (1989) – Established the no-duty-to-protect rule for private violence, but left an opening where the state “creates or enhances” danger.
• Irish v. Fowler (1st Cir. 2020) – First Circuit adoption of the four-part state-created danger test. Doe extends Irish by illustrating what counts as an affirmative act and “enhancement.”
• Rivera v. Rhode Island (1st Cir. 2005) – Distinguished in Doe; Rivera’s promise-of-protection scenario lacked causation, whereas the immediate presence of the abuser in Doe made enhancement plausible.
• Johnson & Welch v. City of Biddeford (1st Cir. 2021-24) – Clarified that failures to act are insufficient; Doe builds on Welch by delineating borderline investigative conduct that is affirmative.
• Monell v. DSS (1978) – Municipal liability hinge; remains to be decided on remand once underlying constitutional breach is established.
• Griffin v. Breckenridge / Harrison v. Brooks – Drove the court's rejection of plaintiffs’ § 1985 class-based claim.

3.2 The Court’s Legal Reasoning

A. Identifying Affirmative Acts
The First Circuit isolated four candidate acts, finding three plausibly affirmative and danger-enhancing:

1. Interviewing John Doe in front of Rose – tipped Rose off, reasonably foreseeably provoking retaliation.
2. Directive to DCF not to re-interview John or visit the home – violated investigative protocol, arguably impeded protective action.
3. Approval of vacating the restraining order – emboldened Rose and removed a layer of protection.
4. (Rejected for causation) 1998 reinstatement of Rose – court found no pleaded escalation traceable to reinstatement.

B. Enhancement and Causation
Relying on Irish, the panel reiterated that “greatly” enhancing danger is not required; it is enough that plaintiffs are more vulnerable. The complaint linked each act to Rose’s escalating abuse, satisfying prong 1; prong 3 caused difficulty only for the reinstatement claim.

C. Monell Considerations
Because employee misconduct may now constitute a constitutional violation, the City’s liability under Monell revives. Plaintiffs argue a “custom of shielding officers accused of abuse.” The district court must now weigh whether that custom was moving force behind the harm.

D. § 1985 Analysis
The panel reaffirmed narrow construction of “class-based animus.” Victims of a police cover-up are not a protected class. Consequently, conspiracy claims fail, avoiding expansion of § 1985 into general tort law.

3.3 Potential Impact

• Broader exposure for law-enforcement defendants – Routine investigative decisions (e.g., how and where to interview a child) may create liability if they foreseeably heighten risk.
• Child-protection coordination – Law-enforcement directives to child-welfare agencies now scrutinised under federal constitutional standards.
• Restraining-order management – Vacating protective orders can constitute an “affirmative act,” encouraging agencies to maintain or justify modifications with caution.
• Municipal policy review – Boston and similarly situated municipalities may revisit internal-affairs and union-grievance protocols to avoid Monell exposure.
• Circuit alignment – The First Circuit now aligns with the Sixth and Ninth Circuits in recognising seemingly investigative steps (interviews, contact directives) as potential danger-enhancing acts.

4. Complex Concepts Simplified

• State-Created Danger Doctrine – An exception to the rule that government has no duty to protect individuals from private violence. Liability arises when the state’s own actions make things worse.
• Affirmative vs. Omission – Doing something (interviewing in front of the abuser, lifting a restraining order) contrasts with merely failing to act (not patrolling).
• Monell Liability – Cities are not vicariously liable; plaintiffs must show a policy, custom, or practice that caused the constitutional wrong.
• Deliberate Indifference – Conscious or reckless disregard of a known substantial risk; used at prong 4 to decide whether conduct “shocks the conscience.”
• § 1985(3) Class-Based Animus – Requires discrimination directed at a protected class (traditionally race). Self-defining groups of victims generally do not qualify.

5. Conclusion

Doe v. City of Boston is a watershed for New England litigation involving child abuse and police misconduct. By characterising certain investigative decisions as affirmative danger-enhancing acts, the First Circuit lowers the pleading barrier for victims seeking redress under § 1983. The opinion simultaneously reaffirms the statutes’ limits—narrowly construing § 1985 and requiring robust causation analysis. On remand, discovery may reveal whether the City’s customs indeed fostered a culture of impunity. Nationally, agencies should heed Doe’s lesson: procedural shortcuts, especially in sensitive contexts like child abuse, may translate into constitutional liability when they predictably place victims in greater peril.