Did the First Circuit err in denying qualified immunity to Petitioners?

QUESTION PRESENTED In DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs. , 489 U.S. 189 (1989), this Court held that a state actor generally has no duty to protect against private danger. Based on dicta in DeShaney, some circuits have recognized an exception and imposed a duty to protect when a state actor takes an affirmative act that creates or exacerbates the private danger. Until now, the First Circuit had never recognized this “state-created danger doctrine” and, in one case, held that “necessary law enforcement tools” did not trigger a duty to protect. Here, the First Circuit recognized the state-created doctrine for the first time and held that it applied when Petitioners, two police detectives, left a voicemail message seeking to interview a sexual assault suspect and then failed to protect Respondents from the suspect. The question presented is: Did the First Circuit err in denying qualified immunity to Petitioners where neither this Court nor the First Circuit had ever before recognized the state-created danger doctrine, the First Circuit had previously held that use of necessary law enforcement tools could not provide the requisite affirmative act for application of the doctrine, there is a split among the circuits regarding both the existence and necessary elements of the doctrine, and in no identified case did a court apply the state-created danger doctrine in sufficiently analogous factual circumstances to have put Petitioners on notice that they assumed a constitutional duty to protect by leaving a voicemail for a suspect or that such an act was so egregious as to “shock the conscience?”