Escalera-Salgado v. United States , 911 F.3d 38 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1838
SANTOS ESCALERA-SALGADO; OLGA PAGÁN-TORRES;
J.E.P., Minor; D.E.P., Minor,
Plaintiffs, Appellants,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Guillermo Ramos Luiña for appellants.
Brad Hinshelwood, Attorney, Appellate Staff, Civil Division,
U.S. Department of Justice, with whom Chad A. Readler, Acting
Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Mark B. Stern, Attorney, Appellate Staff,
Civil Division, U.S. Department of Justice, were on brief, for
appellee.
December 19, 2018
KAYATTA, Circuit Judge. Santos Escalera-Salgado, his
wife, and their two minor children sued the United States under
the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-
2680, seeking to recover damages for injuries suffered when a
Department of Homeland Security agent shot Escalera during the
execution of a search warrant at Escalera's residence. The
district court entered judgment for the United States after a bench
trial. For the following reasons, we affirm.
I.
On October 29, 2011, Puerto Rico Police Department
officers and U.S. Homeland Security Investigations (HSI) agents
convened to execute a search warrant at Escalera's residence.1
Puerto Rico Police Department officers informed the HSI agents
that Escalera was a drug trafficker and a gang leader, and that he
had large amounts of drugs, firearms, and cash stashed at his
residence. Because of these risk factors, HSI was tapped to
"clear" the residence before local police conducted the search.
Before daylight, an HSI agent knocked on Escalera's door, announced
police presence, and -- after receiving no response -- forcibly
entered the apartment. There were no lights on in the apartment
1 In recounting the facts, our task is greatly simplified by
the district court's findings of fact crediting the government's
version of events leading up to the shooting. Presumably in view
of the applicable standard of review, Escalera does not challenge
this finding, so we relate the facts as reported by the government.
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other than the powerful flashlights held by the agents. HSI agent
Menéndez saw Escalera's silhouette emerging from a bedroom. In
Spanish, Menéndez yelled "police," and ordered Escalera to show
his hands and stay still. Ignoring these commands, Escalera lifted
his shirt, reached for his waistband, and moved for cover behind
a bedroom wall. His waistband contained no discernible "bulge."
Before Escalera drew his hand from his waistband area, both
Menéndez and another HSI agent shot at Escalera's center mass.
One of the two rounds lodged in Escalera's elbow. A subsequent
search revealed no weapon either on Escalera or in the apartment.
The search did, however, turn up three kilograms of cocaine, $4,000
in U.S. currency, and a gun cleaning kit.
Escalera, together with his wife and minor children,
filed an FTCA claim for damages stemming from his gunshot injury.
The parties consented to have the case adjudicated by a magistrate
judge ("the district court"). Following a bench trial, the
district court ruled for the United States. In so doing, the
district court assumed that Escalera had proven a claim of common-
law battery under Puerto Rico law. It rested its decision,
instead, upon two conclusions: First, that even if the HSI
officers' conduct constituted common-law battery, the United
States could not be held liable unless the unlawfulness of the
officers' conduct was clearly established at the time they acted;
and second, that at the time the officers acted, no precedent
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clearly established that the officers' conduct was unlawful.
Escalera timely appealed.
II.
In passing the FTCA, Congress provided "a limited
congressional waiver of the sovereign immunity of the United States
for tortious acts and omissions committed by federal employees
acting within the scope of their employment." Díaz-Nieves v.
United States, 858 F.3d 678, 683 (1st Cir. 2017); see also 28
U.S.C. § 1346(b)(1). In general, the FTCA does not waive sovereign
immunity for intentional torts, but it does allow claims against
the United States for "assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution" arising from
"acts or omissions of investigative or law enforcement officers of
the United States Government." 28 U.S.C. § 2680. To assess
liability under the FTCA, we look to "the law of the place where
the act or omission occurred." Id. § 1346(b)(1). Puerto Rico law
therefore supplies the substantive rules of decision in this case.
The district court's qualified immunity analysis relied
upon our circuit's oft-repeated assumption "that Puerto Rico tort
law would not impose personal liability" in tort actions "where
the officers would be protected in Bivens claims by qualified
immunity."2 Solis-Alarcón v. United States, 662 F.3d 577, 583 (1st
2 See generally Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
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Cir. 2011); see also Soto-Cintrón v. United States, 901 F.3d 29,
35 (1st Cir. 2018) ("We also remain mindful of our precedent
holding that the scope of liability under Puerto Rico false
imprisonment mirrors liability under qualified immunity
principles."). This assumption was never based on Puerto Rican
authority expressly embracing the "clearly established" inquiry
employed in Bivens cases. Rather, the assumption was based on a
"parallel" between Puerto Rico's tort law and federal qualified
immunity principles. Soto-Cintrón, 901 F.3d at 35; see also Solis-
Alarcón, 662 F.3d at 583 (noting that Puerto Rico cases that
balance the state's law enforcement function with the right of an
injured citizen to be compensated for wrongful state action echo
the "view that animates federal qualified immunity doctrine").
Making this assumption has allowed us to bypass the "significant
question[s]" of "whether any local court could impose damage
liability on federal officers where they would be exempt in a
federal lawsuit and whether Congress under the FTCA would expect
the federal government to shoulder such liability." Díaz-Nieves,
858 F.3d at 687 (quoting Solis-Alarcón, 662 F.3d at 583–84). These
questions are significant because the "legislative history
accompanying the 1974 amendment [to the FTCA] makes clear that
Congress intended 'to make the Government independently liable in
damages for the same type of conduct that is alleged to have
occurred in Bivens (and for which that case imposes liability upon
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the individual Government officials involved).'" Rodríguez v.
United States, 54 F.3d 41, 45–46 (1st Cir. 1995) (quoting S. Rep.
No. 93-588, at 3 (1973), as reprinted in 1974 U.S.C.C.A.N. 2789,
2791).
We need not decide in this case whether our repeated
assumption concerning the availability of a qualified immunity
defense in an FTCA action arising in Puerto Rico is correct.
Escalera makes no argument that the district court erred by
assuming the defense to be applicable. Instead, Escalera argues
that the district court erred in concluding that the officers did
not violate clearly established law.3 Turning our attention to
that argument, we ask whether the officers' actions "violate[d]
clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). In assessing whether an official's conduct
violated clearly established law, we typically reason by analogy,
asking whether there is any prior case in which the use of force
was deemed unlawful under circumstances reasonably similar to
those present in the case at hand. See Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) ("We do not require a case directly on point,
3 Escalera also devotes a section of his brief to the argument
that the district court erred in its assessment of the common law
of battery in Puerto Rico. But because the district court
ultimately assumed that Escalera proved a battery, we need not
consider this issue.
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but existing precedent must have placed the statutory or
constitutional question beyond debate."); Begin v. Drouin, 908
F.3d 829, 836 (1st Cir. 2018) ("[A] case need not be identical to
clearly establish a sufficiently specific benchmark against which
one may conclude that the law also rejects the use of deadly force
in circumstances posing less of an immediate threat."). When a
defendant invokes qualified immunity, the burden is on the
plaintiff to show that the defense is inapplicable. See Rivera-
Corraliza v. Morales, 794 F.3d 208, 215 (1st Cir. 2015). Here,
then, Escalera had the burden to identify "controlling authority
or a robust consensus of persuasive authority such that any
reasonable official in the defendant's position would have known
that the challenged conduct is illegal in the particular
circumstances that he or she faced." Id. at 214–15 (internal
quotation marks omitted).
In the briefing and at oral argument, Escalera attempted
to distinguish cases in which circuit courts have held that an
officer's use of deadly force was reasonable. See Carnaby v. City
of Houston, 636 F.3d 183 (5th Cir. 2011) (use of force was
reasonable); Ontiveros v. City of Rosenberg, 564 F.3d 379 (5th
Cir. 2009) (same); Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991)
(same); Young v. City of Killeen, 775 F.2d 1349 (5th Cir. 1985)
(same); Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001) (same).
But Escalera failed to compare his shooting to the facts of a
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single case in which an officer's use of force was held to be
constitutionally excessive. Nor is this a case in which the HSI
officers' conduct was self-evidently unlawful. The officers had
ample reason to suspect danger: (1) They had been warned that
Escalera was a gang leader and had guns in the apartment; (2) No
one answered the door when beckoned; (3) Escalera did not comply
with police commands to show his hands and to remain still; and
(4) Escalera "lifted his shirt, reached for his waistband, and
moved for cover behind a bedroom wall." Escalera's best point is
that the officers did not actually see a weapon or the "bulge" of
an apparent weapon. But he cites no case law clearly establishing
that actually seeing a weapon is the sine qua non of reasonableness
in circumstances such as those presented here -- where the officers
were forewarned that Escalera might well be armed and dangerous,
and where Escalera's behavior would lead almost anyone to believe
he was reaching for a weapon. The district court therefore did
not err in dismissing Escalera's claim on the clearly-established
step of qualified immunity analysis.4
III.
For the foregoing reasons, we affirm the district
court's judgment.
4The district court also properly dismissed Escalera's wife's
and children's claims because they are "wholly derivative and
depend[] on the viability of the underlying claim of the relative
or loved one." Díaz-Nieves, 858 F.3d at 689.
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