Justiniano v. Walker ( 2021 )

United States Court of Appeals
For the First Circuit
No. 18-2015
DAMARIS JUSTINIANO,
as the personal representative of the Estate of Wilfredo
Justiniano, Jr.,
Plaintiff, Appellant,
v.
STEPHEN V. WALKER; TIMOTHY P. ALBEN,
Defendants, Appellees.
No. 20-1063
DAMARIS JUSTINIANO,
as the personal representative of the Estate of Wilfredo
Justiniano, Jr.,
Plaintiff, Appellant,
v.
STEPHEN V. WALKER,
Defendant, Appellee,
TIMOTHY P. ALBEN,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
[Hon. Donald L. Cabell, U.S. Magistrate Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Jin-Ho King, with whom Ilyas J. Rona and Milligan Rona Duran
& King LLC were on brief, for appellant.
David J. Officer, with whom David J. Officer, P.C. was on
brief, for appellee Stephen V. Walker.
Joseph P. Lucia, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief, for
appellee Timothy P. Alben.
January 19, 2021
THOMPSON, Circuit Judge. The case we now confront
presents a sad and recurring scenario, one we see play out on the
national stage all too often. While the facts among these cases
may differ in varying degrees, the legal outcome is often the
same: enter stage right, the legal principles of supervisory
liability, failure to train, and yes, unsurprisingly, qualified
immunity,1 too.
On June 14, 2013, Massachusetts State Trooper Stephen
Walker ("Walker") pepper-sprayed, shot, and killed Wilfredo
Justiniano, Jr. on the side of a highway. Damaris Justiniano,2
Justiniano's sister and the personal representative of his estate,
brought a wrongful death and civil rights suit against both Walker
and the Superintendent of the Massachusetts State Police, Colonel
Timothy Alben ("Alben"), alleging that Walker used excessive force
against Justiniano in violation of his constitutional rights, and
that Alben should be brought to bear for that violation as well
via supervisory liability (specifically, failure to train). The
district court dismissed the claims against Alben for failure to
state a claim, and later, the magistrate judge granted summary
1
See Jamison v. McClendon, 2020 WL 4497723, at *1-2 (S.D.
Miss. Aug. 4, 2020) (collecting qualified immunity cases).
2
For ease of exposition, we will refer to Damaris Justiniano,
as personal representative, and Wilfredo Justiniano, Jr. each as
"Justiniano."
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judgment for Walker based on the qualified immunity doctrine.3
Justiniano appealed.
In the wake of the oral argument we heard on that appeal,
a new issue bubbled up: Justiniano's motion to vacate the summary-
judgment grant based on newly discovered evidence that, in
Justiniano's view, further supported the argument that summary
judgment for Walker was inappropriate and he was not entitled to
qualified immunity. The magistrate judge declined Justiniano's
invitation to set aside the judgment, and Justiniano appealed that,
too.
Having scoured the record and carefully reviewed the
issues in this consolidated appeal, we affirm each of the lower
court's judgments.
BACKGROUND
We start with the facts, which we present in the light
most favorable to Justiniano; as we do so, we draw all supportable
inferences in his favor. See, e.g., Rivera-Corraliza v. Morales,
794 F.3d 208, 210 (1st Cir. 2015) (citing Soto–Padró v. Pub. Bldgs.
Auth., 675 F.3d 1, 2, 5 (1st Cir. 2012)). We'll first recount the
3As a heads-up, note that the district court judge entered
judgment on the motion to dismiss and the magistrate judge -- who,
by agreement of the parties and in accordance with 28 U.S.C.
§ 636(c) and Rule 73(b) of the Federal Rules of Civil Procedure,
thereafter handled the case on his own -- entered judgment on the
summary-judgment motion, as well as the subsequent motion to vacate
that judgment.
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facts of the incident itself -- the unfortunate turn of events
that sparked this litigation in the first place -- before shifting
to all of the procedural history. As is usually the case in the
summary-judgment context, the parties dispute a number of facts,
particularly those regarding what happened after Walker
encountered Justiniano on the side of the highway. But what
brought Walker to the scene is undisputed, and that's where we
begin.
On that morning in June 2013, Justiniano, a forty-one-
year-old Hispanic man who had been diagnosed with paranoid
schizophrenia, was driving north on Route 28 near the Milton/Quincy
line in Massachusetts. A driver behind him, Karen Kyriakides
("Kyriakides"), noticed that he was driving erratically. When
Justiniano pulled over, Kyriakides (a good Samaritan indeed)
stopped as well and, concerned about Justiniano's well-being, went
over to his car to check on him. Noticing that Justiniano was out
of sorts -- confused, distraught, and not speaking intelligibly -
- she returned to her car and called 911. The record does not
include a transcript of the 911 call, but Kyriakides remembers
telling the dispatcher a man "needed help" but she "didn't know
what was going on with [him], so they needed to come out and see
what was going on." Kyriakides indicated that, because of
Justiniano's erratic behavior, she was scared for Justiniano,
herself, and anyone else driving by.
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Meanwhile, at the nearby state police barracks in
Milton, Walker's 7:00 a.m. day shift was getting underway when
Kyriakides' 911 call came in. The desk officer who took the call
told Walker about "a possible medical emergency" on Route 28;
around 8:00 a.m., Walker set out for the scene. When Walker
arrived, he saw Justiniano standing near his car. Walker radioed
for backup, then parked behind Justiniano's car and left his
emergency lights flashing before exiting his vehicle to see what
was going on.
The details of what followed are hotly contested.
According to Walker, Justiniano told Walker that he
(Justiniano) was an undercover cop and Walker was going to have to
kill Justiniano.4 Justiniano, moving toward Walker, next told
Walker that if Walker didn't kill him (Justiniano), he would kill
Walker -- and he repeated this throughout the encounter. At
various points during their standoff, Walker attempted to calm
Justiniano down verbally and through gestures. Three civilian
witnesses on or near the scene -- Kyriakides, Jo-Ann Silva-Winbush,
and Shannon MacKeen -- testified that they saw Walker using hand
gestures meant to stop Justiniano from moving towards Walker and/or
to calm Justiniano down; none of the witnesses indicated that
Justiniano complied. Throughout this part of their encounter,
4 None of the other witnesses could hear what was being said
by Justiniano or Walker.
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Walker and Justiniano stood about fourteen to twenty feet apart
from one another. Walker says Justiniano, while approaching
Walker, was holding a ballpoint pen much like someone would hold
a knife, still talking about killing Walker.5 In response, Walker
began to retreat -- Kyriakides testified she saw Walker taking
steps backward toward the highway; Silva-Winbush said Walker
"jumped in front of her car" so she came to a stop, then watched
him back up into the road further. Walker also told Justiniano to
stop advancing toward him. Silva-Winbush explained that
Justiniano was "coming after" or "lunging for" Walker at this
point, and Walker "put his hand up" to indicate "stop" and "[s]tay
there" to Justiniano with his hand palm-out towards Justiniano.
Kyriakides testified that she saw Justiniano "getting closer to
the trooper," and "look[ing] like he was ready to jump on [Walker]"
and, eventually, "lung[ing]" at him.
Asserting that "it was immediately apparent that
Wilfredo Justiniano was having a mental health crisis," Justiniano
urges a different version of these events, disputing in particular
that Justiniano was holding a pen and threatening to kill Walker.
Specifically, Justiniano highlights that Silva-Winbush and MacKeen
stated they could not see anything in Justiniano's hands, while
Kyriakides said she noticed Justiniano placed an object (she didn't
5
No other witness testified to seeing Justiniano holding a
pen (though a pen was found at the scene).
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see what it was) on the ground before Walker arrived, and, when he
moved towards Walker, it was with his arms out and palms open. As
for the threats Walker said Justiniano made, Justiniano asserts
that the idea that Justiniano was uttering comprehensible
communications does not jibe with Kyriakides' testimony that, when
she spoke with Justiniano moments before Walker's arrival, he was
not speaking an intelligible language.
In any event, whether Justiniano was unarmed and
speaking incoherently, or wielding a pen like a knife and
threatening Walker, it is undisputed that Justiniano kept moving
forward (though the nature of this precise movement is very
debated, as we'll discuss later), so Walker, keeping a distance of
about fourteen feet between them, next resorted to his pepper
spray, spraying Justiniano twice in the face. Kyriakides explained
that Walker appeared to spray Justiniano after Justiniano lunged
at him, but she didn't actually see either spraying take place.
Silva-Winbush, however, did see Walker spray Justiniano, and
observed that neither spraying seemed to "bother [Justiniano],"
who "shook it off."
According to Walker, the wind blew some of the second
spray back into Walker's eyes, compromising his vision. After
being sprayed that second time, Justiniano moved towards Walker
and closed the distance between them. Kyriakides testified that
Justiniano was "charg[ing] at" Walker, and Silva-Winbush testified
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that Justiniano "came after" Walker at that point, "really mad"
and "ready to fight," despite Walker again holding up his hand,
gesturing for Justiniano to stop, and continuing to back up into
the highway.
As best we can tell from the excerpts of her deposition
in the record, MacKeen was driving by the scene around this time,
"stopp[ing] a little bit when [she] realized what was going on."
She noted seeing Walker's hand on his gun and Justiniano dipping
his shoulder, leading to Walker "pull[ing] the weapon" -- the
weapon being his gun, which she saw, before driving away; then she
heard the shot. She explained that, while they'd been "basically
stationary" when she first saw Walker and Justiniano, Justiniano
was swaying and pacing before taking some steps towards Walker,
then dipping his shoulder down "like he might attack" Walker.
MacKeen also indicated that Walker had put his hands in front of
him, gesturing "to make [Justiniano] stand down, stop moving[,]"
and Walker took "one big step back" before Justiniano had dipped
his shoulder. At no point does MacKeen mention pepper spray.
When Justiniano was about four to seven feet away from
Walker, Walker unholstered his firearm and fired two shots from
his hip. One shot hit Justiniano in his left forearm, the other
in his chest. Walker says that Justiniano, after being shot, tried
to get up, so Walker pushed him back to the ground with his foot.
A backup officer, (Joseph Durning) arrived, and he and Walker
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struggled to handcuff Justiniano; Durning, concerned Justiniano
might have a weapon, pepper-sprayed Justiniano. Eventually,
Walker, Durning, other officers, and firefighters were able to
subdue and handcuff Justiniano, who was then placed on a stretcher.
From there, he was transported to Milton Hospital, where he was
later pronounced dead.
On April 14, 2015, Justiniano filed suit against Walker
and Alben in the United States District Court for the District of
Massachusetts.6 Relevant to this appeal, under 42 U.S.C. § 1983,
the complaint alleged that Walker's actions violated Justiniano's
right to be free from excessive force (Count 1), and that Alben,
as Walker's supervisor, was deliberately indifferent in failing to
train Massachusetts State Troopers on how to interact with mentally
ill individuals (thus, he alleged, putting Alben on the liability
hook for Walker's actions) (Count 3).7 More on the details of
6
The complaint alleged four counts, but, on appeal,
Justiniano is pursuing the dismissal of Counts 1 and 3 only. The
curious reader can note that the counts not being chased down in
today's appeal were wrongful death claims against Walker (Count 2)
and Alben (Count 4).
7
Quick pause to observe that both the complaint and summary-
judgment phase focused on the shooting as the excessive force, but
in the motion to vacate (which we'll discuss in a bit) and now
before us on appeal, Justiniano switched gears and advances the
first use of the pepper spray as the excessive force. It's unclear
why. Because of the analytical route we'll be taking on our way
to resolving this case, we can assume (without deciding) that this
switch-up does not constitute waiver. Thus it is not necessary
for us to comment or consider this further.
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these allegations down the line.
As we already previewed, these claims were dismissed,
albeit at different stages of the litigation timeline. First, on
September 22, 2016, the district court, adopting a magistrate
judge's report and recommendation ("R&R") over Justiniano's
objection, dismissed the claim against Alben -- regardless of
whether Walker's actions may have violated Justiniano's rights --
because Justiniano had not plausibly alleged deliberate
indifference or causation.
The claims against Walker cleared the pleadings-stage
hurdle, but stumbled when Walker moved for summary judgment on the
ground that he acted reasonably and, regardless, was entitled to
qualified immunity. Indeed, in September 2018, the magistrate
judge entered an order granting summary judgment in favor of Walker
on the ground that his actions were not a constitutional violation
as a matter of law. Taking a belt-and-suspenders approach, the
magistrate judge went on to say that even if Walker had committed
a constitutional violation, summary judgment still was proper
because he would be entitled to qualified immunity. Justiniano
appealed both dispositions of his case.
That appeal was argued before this panel in July 2019.
Soon thereafter, in late September, a new dimension to the case
developed when, in connection with a separate but related matter
pending in Massachusetts state court, Justiniano discovered new
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evidence (specifically, evidence from Walker's personnel file that
Justiniano says demonstrates Walker's propensity to be untruthful
when disciplinary action arising from his incidents of misconduct
is on the line -- more detail to follow) that prompted Justiniano
to ask the magistrate judge to vacate the dismissal of the case
against Walker.8 The magistrate judge denied the motion,
explaining that Justiniano could (and should) have obtained the
at-issue evidence in the first instance by exercising the due
diligence required under Rule 60(b)(2) of the Federal Rules of
Civil Procedure; but even if that was not so, the new evidence
still would not have changed the magistrate judge's take on the
motion for summary judgment. Justiniano again appealed. That
appeal, consolidated with the original appeal, was argued to us on
September 10, 2020.
This brings us up to date, up to speed, and ready to
tackle our analysis.
8 Actually, the procedural history is a touch more labored:
Justiniano moved pursuant to Rule 60 of the Federal Rules of Civil
Procedure to have the magistrate judge set aside the judgment based
on the newly discovered evidence, and the magistrate judge denied
that motion for lack of jurisdiction. That ruling was appealed
and ultimately vacated by an order of this court instructing that
the Rule 60 motion be construed as a motion under Rule 62.1
instead. See Fed. R. Civ. P. 62.1(a) (directing that, "[i]f a
timely motion is made for relief that the court lacks authority to
grant because of an appeal that has been docketed and is pending,
the court may" do one of these things: "(1) defer considering the
motion; (2) deny the motion; or (3) state either that it would
grant the motion if the court of appeals remands for that purpose
or that the motion raises a substantial issue").
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DISCUSSION
We begin making our way through the issues presented by
reviewing the dismissal of the claim against Alben, then we'll
pivot to our discussion of the interwoven questions centering on
the denial of Justiniano's motion to vacate and the summary
disposition of the claim against Walker.
A. Alben and the Motion to Dismiss
As always, "we give de novo review to a Rule 12(b)(6)
failure to state a claim dismissal, using the same criteria as the
district judge." Zell v. Ricci, 957 F.3d 1, 7 (1st Cir. 2020)
(alterations omitted) (citations omitted). Recall, too, that "we
take as true the allegations of the complaint, as well as any
inferences we can draw from them in [Justiniano]'s favor." Id.(citing Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st
Cir. 2011)). As we assess the adequacy of a complaint, we are
mindful that
our circuit has instructed that the review should be
handled like this: first, "isolate and ignore
statements in the complaint that simply offer legal
labels and conclusions or merely rehash cause-of-action
elements[,]" then "take the complaint's well-pled (i.e.,
non-conclusory, non-speculative) facts as true, drawing
all reasonable inferences in the pleader's favor, and
see if they plausibly narrate a claim for relief."
Id. (quoting Zenon v. Guzman, 924 F.3d 611, 615–16 (1st Cir.
2019)); see also Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012) (discussing, among other cases,
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Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)). "Plausible, of course, means
something more than merely possible, and gauging a pleaded
situation's plausibility is a context-specific job that compels us
to draw on our judicial experience and common sense." Zell, 957
F.3d at 7 (internal quotations omitted) (quoting Schatz, 669 F.3d
at 55). The plausibility standard is not a "probability
requirement," but instead "asks for more than a sheer possibility
that a defendant has acted unlawfully," Iqbal, 556 U.S. at 678 --
so if we can't infer from the well-pleaded facts "more than the
mere possibility of misconduct," id. at 679, then the complaint
has not shown "that the pleader is entitled to relief," id.(quoting Fed. R. Civ. P. 8(a)(2)).
We start off by noting that Alben argued -- to the
district court and before us -- a qualified immunity defense.
However, we will not dive head first into that argument because,
even if we were to assume that he was not entitled to such immunity,
we would still affirm the dismissal of the count against him. See
Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (advising
courts to separate the "qualified immunity" analysis from the
"merits" supervisory liability analysis "whenever practicable"
because each inquiry is "distinct").
At the heart of the Alben motion-to-dismiss issue then
is whether the complaint's Count 3 plausibly alleged not only that
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Alben's failure to implement training to teach troopers how to
deal with mentally ill individuals caused a violation of
Justiniano's constitutional rights, but also that Alben was
deliberately indifferent to the risk that not providing that
training would result in a trooper committing that kind of
constitutional violation. Justiniano, of course, says the
complaint accomplished all of this, while Alben takes the opposite
stance. Before we get into those arguments, let's first canvass
these legal principles (deliberate indifference, causation in
failure-to-train cases) -- they're the backdrop against which
we'll assess the complaint's sufficiency, after all.
Alben was not on the scene, of course, so Justiniano
relies on supervisory liability and a failure-to-train theory to
put him on the hook. We've cautioned that "[t]he liability
criteria for 'failure to train' claims are exceptionally
stringent." Hayden v. Grayson, 134 F.3d 449, 456 (1st Cir. 1998)
(citations omitted). Generally, a supervisor cannot be held liable
under § 1983 on a respondeat superior theory -- a "supervisor's
liability must be premised on his [or her] own acts or omissions"
and does not attach automatically even if a subordinate is found
liable. Guadalupe-Báez v. Pesquera, 819 F.3d 509, 515 (1st Cir.
2016). To connect the liability dots successfully between
supervisor and subordinate in this context, a plaintiff must show
"that one of the supervisor's subordinates abridged the
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plaintiff's constitutional rights" and that the supervisor's
(in)action "was affirmative[ly] link[ed] to that behavior in the
sense that it could be characterized as . . . gross negligence
amounting to deliberate indifference."9 Id. at 514-15 (alterations
omitted) (first citing then quoting Pineda v. Toomey, 533 F.3d 50,
54 (1st Cir. 2008)). And that's a critical issue here --
deliberate indifference. Deliberate indifference requires a
plaintiff to demonstrate or allege "(1) a grave risk of harm, (2)
the defendant's actual or constructive knowledge of that risk, and
(3) his failure to take easily available measures to address the
risk." Camilo-Robles, 151 F.3d at 7; see also Guadalupe-Báez, 819
F.3d at 515. Indeed, "[m]ere negligence will not suffice: the
supervisor's conduct must evince 'reckless or callous indifference
9 A brief aside: as will become apparent, because we can
resolve the appellate contentions on other requisite components of
the global legal claims advanced by Justiniano, we really don't
need to determine whether Walker's conduct constituted a violation
of Justiniano's constitutional rights. This is true later, too,
when we tackle the Walker-summary-judgment issue. We take this
approach not only because when "it is not necessary to decide more,
it is necessary not to decide more," Belsito Commc'ns, Inc. v.
Decker, 845 F.3d 13, 27 (1st Cir. 2016) (quoting PDK Labs., Inc.
v. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts,
J., concurring in part and concurring in judgment)), but also
because of the added wrinkle that the constitutional violation
pled in the complaint (the shooting) differs from the
constitutional violation argued in the Walker issue on appeal (the
pepper-spraying).
At any rate, in this section of analysis, as we're about to
explain, we can do away with the arguments based on failure to
plausibly plead deliberate indifference and causation, so we can
assume (certainly without deciding) a constitutional violation
transpired.
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to the constitutional rights of others.'" Guadalupe-Báez, 819
F.3d at 515 (quoting Febus-Rodríguez v. Betancourt-Lebrón, 14 F.3d
87, 92 (1st Cir. 1994)).
And there's more. "[D]eliberate indifference alone does
not equate with supervisory liability," id. (quoting Figueroa–
Torres v. Toledo–Dávila, 232 F.3d 270, 279 (1st Cir. 2000)
(alteration in original)), but rather "[c]ausation [is also] an
essential element, and the causal link between a supervisor's
conduct and the constitutional violation must be solid," id.(citation omitted). For causation in a failure-to-train claim, a
plaintiff must allege that the "lack of training caused [the
officer] to take actions that were objectively unreasonable and
constituted excessive force." Young v. City of Providence ex rel.
Napolitano, 404 F.3d 4, 27 (1st Cir. 2005). And the causation
requirement "contemplates proof that the supervisor's conduct led
inexorably to the constitutional violation." Guadalupe-Báez, 819
F.3d at 515 (quoting Hegarty v. Somerset Cty., 53 F.3d 1367, 1380
(1st Cir. 1995)). We've observed this "is a difficult standard to
meet," though not impossible -- for instance, a plaintiff could
"prove causation by showing inaction in the face of a 'known
history of widespread abuse sufficient to alert a supervisor to
ongoing violations.'" Id. (quoting Maldonado–Denis v. Castillo–
Rodríguez, 23 F.3d 576, 582 (1st Cir. 1994)). Alternatively,
liability might be appropriate "'in a narrow range of
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circumstances' where 'a violation . . .' is 'a highly predictable
consequence of a failure to equip law enforcement officers with
specific tools to handle recurring situations.'" Young, 404 F.3d
at 28 (quoting Bd. Of Cty. Comm'rs. of Bryan Cty., Okla. v. Brown,
520 U.S. 397, 409 (1997)).
So that's what needed to be alleged here -- deliberate
indifference and causation that fit these black-letter-law bills.
True, "[c]ausation and deliberate indifference are separate
requirements . . . [, but] they are often intertwined in these
cases." Id. at 26. So it is here -- both determinations turn on
whether Alben was aware of a risk that his subordinates (Walker,
in particular) might violate mentally ill individuals'
constitutional rights.
Justiniano says the complaint does plenty to state this
claim plausibly, and thus it should have survived the Rule 12(b)(6)
motion. Count 3 alleges that Alben, as Walker's supervisor and a
policymaker, failed to provide Walker with the proper training and
resources that would have helped to prevent a violation of
Justiniano's constitutional rights (again, the complaint leans on
the lethal force as the violation). Justiniano argues that the
complaint adequately alleges that Alben was aware of and ignored
national trends indicating a problematic rise in bad-outcome
encounters between police and mentally ill individuals but
provided no specialized training, and that failure to train
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constituted deliberate indifference to an obvious risk. And,
according to Justiniano, the complaint plausibly lays out the
requisite causal nexus by alleging that the sought-after de-
escalation training would have prevented this tragedy, meaning
Walker's lack of training by Alben was the cause of the violation
of Justiniano's rights.
Alben disagrees, asserting that the complaint falls
short of alleging facts sufficient to establish that he acted with
deliberate indifference to Justiniano's constitutional rights (or,
put differently, that Alben had notice of conduct violating
constitutional rights but failed to take steps to address it),
and, on top of that, the complaint does not adequately allege that
proper training would have prevented that violation (i.e., no
causation).
With the benefit of every possible doubt -- accepting
all of the complaint's factual allegations as true, Zell, 957 F.3d
at 7, assuming that a constitutional violation occurred, drawing
all reasonable inferences in Justiniano's favor, and "isolat[ing]
and ignor[ing]" mere legal conclusions -- this claim's "non-
conclusory, non-speculative" factual allegations do not "plausibly
narrate a claim for relief," id. (quoting Zenon, 924 F.3d at 615–
16), so Justiniano's Count 3 as pled does not pass muster.
In broad strokes, as to the alleged facts that arguably
could support the supervisory liability theory, this is what the
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complaint does accomplish: that Alben, as supervisor, did not
have specific policies in place "for dealing with mental health
crises without using lethal force" or "for troopers dealing with
mental health crises on techniques to de-escalate"; that Alben was
aware of national trends showing an increase in the number of
mental health crises and a corresponding increase in the number of
death-resulting encounters with police which have prompted some
law enforcement entities to institute training regarding these
issues, but Alben took no "affirmative action," which may have
contributed to Justiniano's death. It then asserts that Alben's
failure to act in the face of these national trends "demonstrates
a deliberate indifference" to Justiniano's civil rights, and,
"[a]s a direct result of" Alben's conduct, Justiniano died.
It is not difficult to see what Justiniano was trying to
do here. But these alleged facts don't support the essential legal
elements of "reckless or callous indifference to the
constitutional rights of others," Guadalupe-Báez, 819 F.3d at 515
(quoting Febus-Rodríguez, 14 F.3d at 92), and the "solid" "causal
link between [Alben]'s conduct and the constitutional violation,"
id. (citation omitted), that Justiniano needed to state in order
to be entitled to relief as a matter of law.
Starting with deliberate indifference, it's clear
Justiniano's aim was to highlight the absence of training when it
comes to police encounters with the mentally ill -- Alben himself
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acknowledged that shortcoming in the system, as the complaint
alleges -- and to try to link that to wrongdoing by Alben. But
there are too many pieces missing, even with the benefit of some
inferential leaps, for us to conclude deliberate indifference has
been plausibly pled.
For instance, there are no non-speculative facts in the
complaint that allege a specific "grave risk of harm" in failing
to train or that there were "easily available measures to address
the risk" that Alben could have taken but didn't. Camilo-Robles,
151 F.3d at 7; see also Guadalupe-Báez, 819 F.3d at 515. There is
no allegation that the referenced mental health training adopted
by some other jurisdictions would have been easy to implement in
Massachusetts, nor that the trainings actually have been effective
in reducing the frequency of constitutional violations of the
mentally ill. See, e.g., Rodriques v. Furtado, 950 F.2d 805, 813
(1st Cir. 1991) (explaining that arguable weaknesses with respect
to police training or supervision don't necessarily equate to
deliberate-indifference failure to train). And even if there were
such allegations, it still would not be enough to suggest plausibly
that Alben knew or should have known his troopers might violate
the rights of a mentally ill individual, particularly when there
is no known history of such constitutional trampling by
Massachusetts troopers alleged. The complaint does not plead that
Walker or the Massachusetts State Police more generally had a
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history of using excessive and constitutionally violative force
against individuals who were mentally ill such that Alben should
have been on notice of that conduct, nor is there any suggestion
that the Massachusetts State Police are otherwise specifically at
risk of violating a mentally ill individual's constitutional
rights. See Guadalupe-Báez, 819 F.3d at 516. Clearly, then, he
could not have ignored -- with deliberate indifference or otherwise
-- a non-existent history of these issues.10
Another angle would be to consider whether the complaint
plausibly alleged a national trend of constitutional violations so
prominent that Alben should have been (or was) on notice of a high
10 On the deliberate indifference/notice front, by
comparison, consider the facts and outcome in Guadalupe-Báez: a
man was shot, and although he was not able to identify his shooter,
he had reason to believe it was a local police officer. 819 F.3d
at 513. The supervisory failure alleged there centered on a
lackluster police investigation into the matter. Id. at 516. In
concluding the plaintiff barely met the pleading standard, a panel
of this court put emphasis on the particular police force's
"tarnished history" of civil rights violations and a Department of
Justice report calling out that specific police force's issues.
Id. at 512. And then there's Young, in which a friendly-fire
incident saw on-duty uniformed officers shoot an off-duty officer
who was responding to the same incident. 404 F.3d at 9. The Young
court found supervisory liability despite the absence of a history
of past violations because the police department's policy required
off-duty officers to remain armed and respond to situations they
encountered. Id. Because officials made statements suggesting
they were aware of a high risk of a friendly-fire incident in these
circumstances, and because the police force's training did not
necessarily prepare on-duty officers for the inherently dangerous
possibility of an armed and responding off-duty officer, the court
explained that a jury could have found the officers to have been
deliberately indifferent to a risk of this shooting. Id. at 18-
19, 28.
- 22 -
risk that, without this training, there was a grave risk that his
troopers would violate a mentally ill person's constitutional
rights, and he nonetheless ignored it. See Young, 404 F.3d at 28.
But the complaint does not allege such a widespread, prominent
trend of constitutional violations: in fact, the complaint does
not actually allege that the "trend" involves constitutional
violations at all, but instead states that there are more and more
"tragic encounters with police where unarmed mentally ill citizens
end up dead." While we do not purport to foreclose the possibility
that such a national trend might be enough to provide this notice,
the trend as alleged here simply does not rise to that level.
And the requisite causal link has not been plausibly
alleged either, i.e., that Alben's failure to train his troopers
"caused [Walker] to take actions that were objectively
unreasonable and constituted excessive force." Young, 404 F.3d at
27. Justiniano pleads that "[a]s a direct result of the conduct
of Defendant Alben, Wilfredo Justiniano lost his life," but none
of the pled conduct supports that legal conclusion. And while the
complaint alleges that Walker acted improperly in light of
Justiniano's mental condition, there is no allegation that
Walker's decision to shoot Justiniano was related to any mental
illness that Justiniano suffered. Yes, the complaint alleges that
Walker confronted, fired his gun at, and ultimately killed
Justiniano, who was unarmed and experiencing a mental health
- 23 -
crisis, but, even if all of that was proven, there still could be
no non-speculative inference from those facts that, had Alben
provided the training, the shooting would not have happened.
Recall, too, that we've said a plaintiff could "prove
causation [in this context] by showing inaction in the face of a
'known history of widespread abuse sufficient to alert a supervisor
to ongoing violations,'" Guadalupe-Báez, 819 F.3d at 515 (quoting
Maldonado–Denis, 23 F.3d at 582), and it could be alleged by
pleading that certain conduct "is 'a highly predictable
consequence of a failure to equip law enforcement officers with
specific tools to handle recurring situations,'" Young, 404 F.3d
at 28 (quoting Brown, 520 U.S. at 409). This is a non-exhaustive
set of examples, certainly, but nothing even approaching these
scenarios happened here (as we touched on in part in our deliberate
indifference discussion). Instead, the complaint conclusorily
alleges that Alben's refusal to change the relevant policies led
to the "inevitable outcome" of Justiniano's death, but does nothing
to allege non-speculative facts that would allow an inference that
training actually would have altered that outcome.
All told, we needed "more than a sheer possibility that
[Alben] . . . acted unlawfully[,]" but we didn't get it. Iqbal,
556 U.S. at 678. There's not enough factually alleged here to
support a conclusion that Alben acted with deliberate indifference
when he neglected to train Walker (and other troopers) on how to
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interact with the mentally ill; and, regardless of that
shortcoming, there's still a dearth of factual allegations to
bolster the conclusion that his failure to do so caused Walker to
violate Justiniano's rights. Therefore, we affirm the district
court's dismissal of the claim against Alben.
B. Walker and the Motion for Summary Judgment
We thus move on, turning our gaze to the summary judgment
granted to Walker and ensuing new-evidence litigation. Here's how
that will go: we'll first explain everything that happened below
-- the summary-judgment grant as to Count 1 followed by the denial
of the motion to vacate -- then lay out the rules of engagement
for qualified-immunity arguments before turning to the parties'
appellate contentions, all of which we'll assess under de novo
review because, as we'll explain, even if we look at all the
evidence (both old and new), a de novo review of the entire matter
still leads to an affirmance based on qualified immunity. Let's
begin.
i. Proceedings Below
Starting with Walker's motion for summary judgment,
here's the gist of how this issue went below.
Walker moved for summary judgment on the ground that he
did not violate Justiniano's rights and, in any event, was entitled
to qualified immunity. In opposition, Justiniano argued there
were genuine issues of material fact (focusing in particular on
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whether Justiniano was wielding a weapon (the pen); what, exactly,
was said between Walker and Justiniano; and, overall, whether
Walker could have reasonably felt threatened) and that qualified
immunity should not attach because Walker's conduct constituted an
unconstitutional and unreasonable use of excessive force that
violated a protected right that was clearly established at the
time, especially given that Justiniano "posed no imminent threat."
In fielding that motion, the magistrate judge considered the
evidence, including evidence from civilian witnesses and evidence
from Walker that Justiniano was brandishing a ballpoint pen as a
weapon and made threatening statements to Walker.11 Justiniano v.
Walker, 2018 WL 4696741, at *2-3 (D. Mass. Sept. 30, 2018). In
finding that, based on the entire record, Walker acted reasonably
under the circumstances, the magistrate judge concluded that
Walker therefore did not use excessive force. Id. at *5. And,
moreover, even if Walker's conduct had constituted excessive
force, the magistrate judge indicated that Walker would be
protected by the cover of qualified immunity because "a reasonable
officer would not have clearly understood Trooper Walker's conduct
to be unreasonable" since Justiniano "posed an imminent threat" -
- indeed, that reasonable officer "would not have readily
11
Recall from our earlier factual recitation that no witness
could hear anything being said by either Justiniano or Walker, nor
could any witness confirm that Justiniano was holding a pen in
this manner (though a pen was found on the road after the fact).
- 26 -
understood Trooper Walker's actions to violate Justiniano's
rights." Id. at *6. The court accordingly granted the motion for
summary judgment. Id.
As discussed, that ruling was appealed, and while the
appeal was pending, the new-evidence issue materialized. Here's
what the new evidence was and how it came to light. In the parallel
litigation taking place in the Massachusetts state court,
Justiniano's motion to compel production of certain documents
(which had been requested but not been produced in the federal
case) was granted, providing access to some of Walker's personnel
file, including disciplinary reports regarding Walker, training
reports, and some emails. Justiniano v. Walker, 2019 WL 7169785,
at *1-2, *4 (D. Mass. Dec. 24, 2019). Justiniano says this
evidence matters because it demonstrates Walker's history of lying
while under investigation in two prior misconduct matters, that he
(a) violated department policy when he failed to create a use of
force report within the required 24-hour period after Justiniano's
shooting, and (b) lied under oath in his deposition in this matter
when he represented that he had written the report when, according
to the State Police producing the compelled documents, no such
report could be found.12 In view of this new evidence showing
12 Obviously, to the extent this was indeed a lie under oath
as Justiniano asserts, we do not condone perjury. But, as we'll
explain, we do not need to get into whether that is what happened.
- 27 -
(according to Justiniano) that Walker has a spotty history when it
comes to truth-telling, Justiniano argued the summary-judgment
grant should be vacated because Walker's uncorroborated statements
regarding the incident with Justiniano are no longer credible,
meaning there are genuine issues of material fact as to whether
the incident transpired as Walker indicated and thus, whether he
acted reasonably when he pepper-sprayed Justiniano.
Back before the lower court after our remand, the
magistrate judge first concluded that, in view of our due-diligence
Rule 60 caselaw, Justiniano should have done more to obtain this
evidence in the instant litigation, i.e., pursue an order
compelling production. Id. at *5-6. Then, in an exercise of even-
if thoroughness, the magistrate judge went on to assume arguendo
that, had the due-diligence hurdle been surmounted, the relief
Justiniano sought (vacating the summary-judgment grant) still
would not be granted because the new evidence wouldn't change the
outcome: even removing Walker's uncorroborated statements from
consideration, Walker was nonetheless entitled to qualified
immunity. Id. at *6-7. The magistrate judge assessed the
qualified-immunity issue -- minus Walker's statements -- and
concluded that, on this record, Walker had not acted unreasonably:
an objectively reasonable officer in Trooper Walker's
position would not have understood that emitting a burst
of pepper spray to retard Justiniano's movements
violated his rights. On the contrary, the undisputed
facts demonstrate that Justiniano appeared agitated and
- 28 -
distraught when Trooper Walker arrived, Trooper Walker
tried to calm him down by holding up his hands,
Justiniano did not comply, and Trooper Walker used the
pepper spray only after he was forced to back up into
[the highway].
Id. at *7.13
ii. Ground Rules: Qualified-Immunity Law
We need not grapple with the front-end issue of whether
the new evidence should have been discovered in this action with
the exercise of due diligence because, even if it had been, its
existence in this record does not alter the outcome: Walker is
still protected by qualified immunity. We thus proceed under the
assumption that the new evidence can be considered, meaning we
take Walker's uncorroborated statements off the evidentiary table
as we analyze the qualified-immunity question here.
We begin with a primer on the standard of review, the
qualified-immunity test, and the guidance our caselaw provides.
We review a grant of summary judgment de novo, drawing
all reasonable inferences in the light most favorable to the
nonmoving party. Mitchell v. Miller, 790 F.3d 73, 76 (1st Cir.
2015) (citing Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir.
2014)). Our caselaw and Rule 56 of the Federal Rules of Civil
Procedure teach us to affirm the grant of summary judgment only if
13 Recall that, as we mentioned a few pages back, Justiniano's
appellate focus is on the pepper spraying only, not the lethal
force.
- 29 -
"there is no genuine dispute as to any material fact" and, as a
result, the moving party is "entitled to judgment as a matter of
law." Id. at 76-77 (quoting Bos. Prop. Exch. Transfer Co. v.
Iantosca, 720 F.3d 1, 10 (1st Cir. 2013)); see also Fed. R. Civ.
P. 56(a). Importantly, to avoid "the swing of the summary judgment
scythe," the nonmoving party must adduce specific facts showing
that a trier of fact could reasonably find in his favor, Mulvihill
v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003), the
nonmovant cannot rely on "conclusory allegations, improbable
inferences, and unsupported speculation," Medina-Muñoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
This lens of review in place, we turn to qualified
immunity -- much referenced thus far, but not yet subject to a
deep-dive, so in we go. "Qualified immunity protects an officer
from suit when a reasonable decision in the line of duty ends up
being a bad guess -- in other words, it shields from liability
'all but the plainly incompetent or those who knowingly violate
the law.'" Decker, 845 F.3d at 22 (quoting Taylor v. Barkes, 575
U.S. 822, 822 (2015)). "'[R]easonable mistakes,' the Supreme Court
tells us, 'can be made as to the legal constraints' on officers,
and when that happens, the officer is qualifiedly immune from
damages." Id. (alteration in original) (quoting Saucier v. Katz,
533 U.S. 194, 205 (2001), overruled on other grounds by Pearson v.
Callahan, 555 U.S. 223 (2009)). Here, to quash Walker's qualified-
- 30 -
immunity defense, Justiniano needed to "show (1) that [Walker]
infracted [Justiniano's] federal rights and (2) that these rights
were so clearly established that a reasonable officer should have
known how they applied to the situation at hand." Id. at 23
(citing City & Cnty. of S.F. v. Sheehan, 575 U.S. 600 (2015);
Pearson, 555 U.S. at 232; Cortés-Reyes v. Salas-Quintana, 608 F.3d
41, 51-52 (1st Cir. 2010)). In fact, we routinely break the second
prong down even more explicitly as follows: "'whether the right
was clearly established at the time of the alleged violation,' and
'whether a reasonable officer, similarly situated, would
understand that the challenged conduct violated that established
right.'" Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008)
(quoting Philip v. Cronin, 537 F.3d 26, 34 (1st Cir. 2008)
(reasoning that, even if a constitutional right has been clearly
established, a defendant may nonetheless be protected by qualified
immunity if a reasonable official in the defendant's position could
have believed (even wrongly) that the at-issue conduct was not
violative of a constitutional right)); see also Savard v. Rhode
Island, 338 F.3d 23, 27 (1st Cir. 2003) (en banc) (referring to
the qualified-immunity test as a "three-part algorithm"). And
breaking the clearly-established element down in this way makes
good sense: "a defendant cannot be said to have violated a clearly
established right unless the right's contours were sufficiently
definite that any reasonable official in the defendant's shoes
- 31 -
would have understood that he was violating it," Plumhoff v.
Rickard, 572 U.S. 765, 778–79 (2014), i.e., "'existing precedent
must have placed the statutory or constitutional question'
confronted by the official 'beyond debate,'" id. at 779 (quoting
Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)).
We can tackle these components of the qualified-immunity
test in any order we like. Pearson, 555 U.S. at 236. Here, we'll
assume without deciding the first pieces have been shown --
Walker's use of the pepper spray violated Justiniano's right to be
free from that force, and that right was clearly established and
on the books in June 2013 -- and resolve the matter on the question
of whether a reasonable, similarly situated officer would
understand that Walker's conduct violated Justiniano's
constitutional right.14 See Parker, 547 F.3d at 12-13. As we do
so, we keep in mind that, because "[c]ourts penalize officers for
violating bright lines, not for making bad guesses in gray areas,"
Rivera–Corraliza, 794 F.3d at 215 (internal quotation marks
omitted), if the pertinent "legal principles are clearly
established only at a level of generality so high that officials
cannot fairly anticipate the legal consequences of specific
14
Because we will dispose of the matter in this way, we need
not get into the constitutionality of Walker's conduct. See
Decker, 845 F.3d at 23 n.8 (taking a similar approach in a
qualified immunity matter); Barton v. Clancy, 632 F.3d 9, 12, 30
n.20 (1st Cir. 2011) (same). Remember, this is what we did in the
Alben analysis, as well.
- 32 -
actions, then the requisite notice is lacking," Savard, 338 F.3d
at 28.
We are also mindful that deciding qualified immunity at
the summary-judgment stage can be tricky. See Morelli v. Webster,
552 F.3d 12, 18-19 (1st Cir. 2009) (discussing the "inherent
tension" between qualified immunity and summary judgment). Yes,
"qualified immunity is 'an immunity from suit rather than a mere
defense to liability,'" meaning "'it is effectively lost if a case
is erroneously permitted to go to trial,'" Pearson, 555 U.S. at
231 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)), so
qualified immunity's applicability "should be resolved at the
earliest possible stage of litigation," Rocket Learning, Inc. v.
Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013) (citing Maldonado v.
Fontanes, 568 F.3d 263, 268 (1st Cir. 2009)). But, as we've
observed, "[t]he doctrinal intersection of qualified immunity
principles and summary judgment principles is not well mapped,"
and "[p]lotting that intersection can present thorny analytic
problems -- problems that are magnified because of the desire to
resolve claims of qualified immunity at the earliest practicable
stage of litigation." Morelli, 552 F.3d at 18 (citing Cox v.
Hainey, 391 F.3d 25, 29 (1st Cir. 2004)). Furthermore, in
qualified-immunity summary-judgment cases, it's a tug-of-war,
really, between who gets the benefit of the doubt: summary
judgment "requires absolute deference to the nonmovant's factual
- 33 -
assertions," while qualified immunity "demands deference to the
reasonable, if mistaken, actions of the movant." Id. at 18-19.
We aim to resolve all of this tension by framing the
factual events according to summary judgment's traditional leeway
to the nonmoving party's version of events, and then asking
whether, given that story, "a reasonable officer should have known
that his actions were unlawful." Id. at 19.
iii. Walker is Qualifiedly Immune
Justiniano contends that the record contains enough
conflicting testimony about material facts to raise a genuine
dispute over whether Walker can be shielded by qualified immunity,
i.e., whether Walker's use of pepper spray was an inappropriate
and excessive use of force in violation of Justiniano's clearly
established right to be free from that use of force. And she
argues that the new evidence in particular "leaves a universe of
facts that support [her] claims": no one but Walker saw Justiniano
yelling in the road, heard any verbal threat by Justiniano, saw
anything in Justiniano's hands, or heard Walker give Justiniano
warnings about his intent to deploy force. In Justiniano's view,
since there's no witness who testifies that Justiniano was doing
anything other than simply approaching Walker when the pepper spray
was deployed, it is valid to infer the nature of his movement was
nonthreatening, and thus it was not reasonable for Walker to use
the spray.
- 34 -
Walker, in turn, argues that none of the facts to which
Justiniano points lead to the conclusion that he is not shielded
by qualified immunity, and this is so even if all of Walker's
uncorroborated testimony is removed from consideration.
So now, as we leapfrog the initial elements of the
qualified-immunity analysis (recall that we're assuming arguendo
that the use of the pepper spray was unreasonable and Justiniano
had a clearly established right to be free from that use of force),
we confront the question of whether a reasonable officer in
Walker's shoes would have understood Walker's conduct to violate
Justiniano's constitutional right. See, e.g., Parker, 547 F.3d at
12.
Even viewing the facts in the light most favorable to
Justiniano, removing from consideration any of Walker's
uncorroborated testimony, and drawing all reasonable inferences in
Justiniano's favor, the record here does not support a finding
that a reasonable officer would have clearly understood Walker's
conduct to be an unreasonable violation of Justiniano's rights.
Our careful review of the record here leaves us with
these undisputed facts to sketch the contours of what happened.
Kyriakides observed Justiniano driving erratically, and when they
both pulled over, he was confused, distraught, and spoke
unintelligibly. She was scared for Justiniano's wellbeing, as
well as her own and that of passersby. After Walker hit the scene,
- 35 -
all three civilian witnesses (Kyriakides, Silva-Winbush, and
MacKeen) observed Walker at various points trying to calm down
and/or stop Justiniano from approaching him by using hand gestures.
They also described Justiniano as appearing distraught, even mad;
none observed Justiniano heeding Walker's hand gestures to calm
down or stop his approach. Silva-Winbush, who witnessed each
instance of pepper-spraying, indicated that the first use of the
spray (the complained-of rights-violation here) came only after
Walker had "jumped" into the highway as he continued to retreat
from Justiniano. And each of these witnesses described various
instances of Justiniano lunging or at least engaging in forward
motion towards Walker.
From an objective standpoint, a reasonable officer could
have believed Justiniano posed a threat, and thus that same
reasonable officer, in Walker's position, would not have believed
that the initial use of pepper spray (a generally non-lethal
deployment) against Justiniano constituted a violation of
Justiniano's rights. A contrary finding, even a contrary
inference, is simply not supportable on the evidence here.
True, witnesses describe Justiniano's movements
differently, and movement alone wouldn't necessarily justify the
use of pepper spray. And yes, the key here is Justiniano's
movements (or lack thereof, if that was the case) in the moments
before and as the pepper spray was used -- Justiniano being
- 36 -
stationary, or approaching Walker in a decidedly nonaggressive
fashion, for example, because that's what a jury could rely on to
make inferences that Justiniano's behavior did not warrant the use
of force he received because Walker couldn't have reasonably
thought Justiniano posed a threat. But there is no witness
testimony that Justiniano was stationary in the moment before the
pepper spray was used; rather, all the evidence points to
Justiniano steadily moving towards Walker in one fashion or
another. Yes, MacKeen indicated both men were stationary when she
first saw them, but for one thing, it's not entirely clear when
exactly she observed this (as best we can tell, it's probably after
the pepper-spraying went down, and just before the shooting --
either way, she doesn't say when Justiniano was stationary in
relation to when the pepper spray was used), and for another, she
said Justiniano did then approach Walker. And there's nothing
that would support a reasonable inference that the nature of any
of Justiniano's movements forward was anything other than
aggressive if not downright threatening (even if Justiniano's
behavior is sadly explained by his mental state). See, e.g.,
Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000) ("[A
plaintiff] cannot rely on an absence of competent evidence, but
must affirmatively point to specific facts that demonstrate the
existence of an authentic dispute." (quoting McCarthy v. Nw.
Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995))). Quite the
- 37 -
opposite: in the face of the evidence we do have about
Justiniano's demeanor, reaching such a conclusion would require
impermissible guesswork and speculation. Justiniano needed to
point to specific facts that would allow a jury to find in her
favor on this point, Mulvihill, 335 F.3d at 19, but we find
ourselves left only with arguments requiring "improbable
inferences[] and unsupported speculation" to reach the outcome she
seeks, Medina-Muñoz, 896 F.2d at 8. Even framing the facts as
favorably as we can according to Justiniano's version of events
(no pen-as-weapon in the narrative, no threats issued to Walker by
Justiniano), we cannot conclude on this record that a reasonable
officer in Walker's position would have known his conduct (using
the pepper spray) was unlawful under these circumstances. See,
e.g., Morelli, 552 F.3d at 19. Accordingly, the magistrate judge
was correct that Walker is entitled to qualified immunity.15
Therefore, we affirm the grant of summary judgment, and,
15 Justiniano directs us to Gray v. Cummings, 917 F.3d 1 (1st
Cir. 2019), another qualified-immunity case involving an encounter
between a mentally ill individual and a law enforcement officer.
The goal, it seems, was to argue that a person's mental illness
must be considered when an officer decides to employ force against
that individual. But the Gray court's conclusion was that a
reasonable officer wouldn't have believed using a taser on the
lowest stun setting to halt a nonviolent, mentally ill individual
resisting arrest was a violation. Id. at 12. This does not
undermine any of our analysis: a reasonable officer in Walker's
shoes could have believed that the first use of pepper spray on
Justiniano (who was behaving erratically, moving forward toward
Walker and oncoming traffic on a highway and not known to Walker
to be mentally ill) wasn't a constitutional violation.
- 38 -
for the same reasons, we affirm the denial of the Rule 60 motion
to vacate.16
WRAPPING UP
Before we go, we note that Justiniano also briefed an
16 A housekeeping matter. Justiniano urges us to conclude
that the magistrate judge abused his discretion when he refused to
vacate his earlier summary-judgment grant. In so doing, Justiniano
raises arguments under both sections (b)(2) and (b)(3) of Rule 60.
Rule 60(b)(2), dealt with by the lower court because it was argued
there, provides that a party can be relieved from a judgment like
the one entered here if there is "newly discovered evidence that,
with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b)." Rule 60(b)(3), raised
for the first time on appeal, instructs that relief can be granted
where there's "fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party." According to Justiniano, the magistrate judge abused his
discretion in his handling of the Rule 60 motion for reasons
falling under each of these two sections of that rule. But here's
the thing: even taking as not waived the (b)(3) argument that
fraud and misconduct by the Massachusetts State Police is what
kept the evidence from being discovered in this action, these
components of Rule 60(b) assume that the at-issue evidence was
never discovered, accessed, or considered in ruling on the original
dispositive motion the Rule 60(b) motion seeks to vacate -- and
that's precisely why the rule exists, to remedy just such a plight.
Here, we've already said (ad nauseum) that we assume favorably to
Justiniano that the "newly discovered evidence" could be
considered, and doing that had the effect of negating all of
Walker's uncorroborated testimony. That's exactly the point that
Justiniano wanted to make in arguing that the summary-judgment
grant should not stand. But the thrust of Rule 60(b) as applied
here is that the excluded or inaccessible evidence would need to
change the outcome on the dispositive motion. We let it in, and
it didn't alter the outcome of our qualified-immunity analysis.
So we do not tarry any further on this because, with the outcome
determined to be the same with or without the evidence, the
magistrate judge did not abuse his discretion in fielding the Rule
60 motion as he did.
- 39 -
argument urging us to abandon the application of qualified immunity
in cases resulting in death. As we acknowledged at the outset of
today's decision, we do not disagree that the issue of qualified
immunity's role in our jurisprudence is topical, to say the least.
But we are constrained by the precedent that led to today's
outcome, and until that precedent changes, we are dutybound to
apply it.
For the reasons explained in detail above, we affirm
across the board the lower court's disposition of this case. Each
side to bear its own costs.
- 40 -