DocketNumber： 91-2337
Filed Date： 8/26/1992
Status： Precedential
Modified Date： 3/3/2016
____________________
No. 91-2337
LEONEL BUENROSTRO, ET AL.,
Plaintiffs, Appellees,
v.
PABLO COLLAZO, a/k/a PABLO COLLAZO MARRERO, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Selya and Stahl, Circuit Judges,
______________
and Skinner,* District Judge.
______________
____________________
John F. Nevares, with whom Annabel Rodriguez, Solicitor
________________ __________________
General, Reina Colon, Assistant Solicitor General, Silvio Cancio,
___________ _____________
and Saldana, Rey & Alvarado were on brief, for appellants.
_______________________
Francisco A. Besosa, with whom Goldman Antonetti Ferraiuoli
___________________ ____________________________
& Axtmayer was on brief, for appellees.
__________
____________________
August 26, 1992
____________________
____________________
*of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. Plaintiff-appellee Leonel
SELYA, Circuit Judge
_______________
Buenrostro, portraying himself as a victim of mistaken identity
and misplaced zeal, sued a number of police officers under 42
U.S.C. 1983 (1988).1 The defendants unsuccessfully attempted
to pretermit the suit on qualified immunity grounds. The
district court denied their motion for summary judgment. We
affirm.
I
I
_
Consistent with the method of Fed. R. Civ. P. 56(c), we
take the record in the light most hospitable to the party
opposing summary judgment and indulge all reasonable inferences
favorable to him. See Garside v. Osco Drug, Inc., 895 F.2d 46,
___ _______ _______________
48 (1st Cir. 1990).
On March 29, 1988, the extradition squad raided
Buenrostro's home, hauled him out, and arrested him pursuant to a
"wanted person" request (WPR) from the State of New York. The
police admittedly acted in the absence of an arrest warrant, a
search warrant, or any exigent circumstances sufficient to
justify the intrusion.
As a result of this arrest, appellee was handcuffed,
____________________
1The defendants include Pablo Collazo Marrero, Angel Morales
Gonez, Edwin Teruel, and Jose M. Collazo, members of the Puerto
Rico Police Department's Division of Special Arrests and
Extraditions; Armando Tapia Suarez, the head of that Division;
and Carlos Lopez Feliciano, the Superintendent of Police.
Although other defendants were also sued, these six officers are
the sole appellants in this proceeding. For ease in reference,
we disregard for the time being that Buenrostro's conjugal
partnership and family members are named plaintiffs and treat
Buenrostro as if he alone was the plaintiff-appellee.
2
taken to police headquarters, and locked in a cell.
Subsequently, a local magistrate determined that there was
probable cause to detain him while extradition proceedings ran
their course. Despite a number of red flags e.g., Buenrostro's
claims that the probable-cause determination was based on false
accusations mouthed by members of the extradition squad, his
continuing protests of innocence, significant discrepancies
between the description of the suspect mentioned in the WPR and
Buenrostro's physical characteristics, and available (but unused)
fingerprint evidence Buenrostro remained immured in what the
district court termed "horrific conditions" for thirty-one days.
Finally, a more thorough examination of New York's extradition
request was undertaken, and the Puerto Rican authorities admitted
that they had arrested the wrong man. Buenrostro was released.
Not long thereafter, Buenrostro sued for damages. He
alleged in his complaint that his constitutional rights had been
infracted in various ways. He also asserted pendent claims. In
due course, the appellants sought brevis disposition based on
______
qualified immunity. When the district court denied their Rule 56
motion, Buenrostro v. Collazo, 777 F. Supp. 128 (D.P.R. 1991),
__________ _______
they filed this appeal.
II
II
__
A.
A.
__
Ordinarily, we would not entertain an immediate appeal
from a denial of summary judgment. See, e.g., Fisichelli v. City
___ ____ __________ ____
Known as the Town of Methuen, 884 F.2d 17, 18 (1st Cir. 1989);
_____________________________
3
see also 28 U.S.C. 1291 (1988) ("[t]he courts of appeals . . .
___ ____
shall have jurisdiction of appeals from all final decisions of
_____
the district courts") (emphasis supplied). Nevertheless, the
denial of a government actor's dispositive pretrial motion
premised on qualified immunity falls within a narrow exception to
the finality principle and is, therefore, immediately appealable.
See Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985); Roque-
___ ________ _______ ______
Rodriguez v. Lema Moya, 926 F.2d 103, 105 (1st Cir. 1991);
_________ __________
Fisichelli, 884 F.2d at 18. The window of opportunity, however,
__________
is tiny. "Notwithstanding that we have jurisdiction to review
the denial of qualified immunity midstream, any additional claim
presented to and rejected by the district court must
independently satisfy the collateral-order exception to the final
judgment rule in order for us to address it on an interlocutory
appeal." Roque-Rodriguez, 926 F.2d at 105 (citations and
_______________
internal quotation marks omitted); see also Domegan v. Fair, 859
___ ____ _______ ____
F.2d 1059, 1061-62 (1st Cir. 1988).
In this case, there is no other basis for earlier-than-
usual review. It follows inexorably that, for present purposes,
we must focus exclusively upon the question of whether the
defense of qualified immunity, as invoked by the appellants,
shielded them from liability for money damages, and from the
concomitant burden of a trial, arising out of the alleged
constitutional deprivation. See Roque-Rodriguez, 926 F.2d at
___ _______________
105-06.
B.
B.
__
4
Appealability aside, appellate review of district court
orders granting or denying summary judgment works the same way in
qualified immunity cases as in other cases. See Morales v.
___ _______
Ramirez, 906 F.2d 784, 785 (1st Cir. 1990); Amsden v. Moran, 904
_______ ______ _____
F.2d 748, 752 (1st Cir. 1990), cert. denied, 111 S.Ct. 713
_____ ______
(1991). Summary judgment is proper if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). District court orders granting or denying brevis
______
disposition are subject to plenary review.2 Griggs-Ryan v.
___________
Smith, 904 F.2d 112, 115 (1st Cir. 1990); Garside, 895 F.2d at
_____ _______
48.
III
III
___
A.
A.
__
Through the medium of qualified immunity, the law
strives to balance its desire to compensate those whose rights
are infringed by state actors with an equally compelling desire
to shield public servants from undue interference with the
____________________
2We recognize that, in some relatively rare instances in
which Rule 56 motions might technically be granted, the district
courts occasionally exercise a negative discretion in order to
permit a potentially deserving case to be more fully developed.
See, e.g., McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979);
___ ____ ______ _____
McInnis v. Harley-Davidson Motor Co., 625 F.Supp. 943, 958
_______ ___________________________
(D.R.I. 1986). We express no opinion on whether this negative
discretion can flower in a case that turns on qualified immunity,
nor do we speculate about what standard of review might then
obtain.
5
performance of their duties and from threats of liability which,
though unfounded, may nevertheless be unbearably disruptive. See
___
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Hence, state
______ __________
officials exercising discretionary authority are entitled to
qualified immunity insofar as their conduct does not transgress
clearly established constitutional or federal statutory rights of
which a reasonably prudent official should have been aware. See
___
Harlow, 457 U.S. at 818; Roque-Rodriguez, 926 F.2d at 107. In
______ _______________
this context, the phrase "clearly established" has a precise
definition: "The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right." Anderson v. Creighton, 483 U.S. 635,
________ _________
640 (1987); accord Amsden, 904 F.2d at 752.
______ ______
In analyzing a qualified immunity defense, a court must
ascertain whether the plaintiff has alleged, with the requisite
particularity, that a state actor violated some right emanating
from federal law.3 See Siegert v. Gilley, 111 S. Ct. 1789, 1793
___ _______ ______
(1991); Amsden, 904 F.2d at 752. The next step is to ascertain
______
whether the right at issue was "clearly established" at the time
of infringement. See Anderson, 483 U.S. at 640. If it was, an
___ ________
inquiring court can then presume that the defendant knew, or
should have known, that his conduct was beyond the pale. See
___
Harlow, 457 U.S. at 818-19; Amsden, 904 F.2d at 752.
______ ______
____________________
3At the summary judgment stage, the allegation must, of
course, be substantiated by competent evidence sufficient to
create a genuine issue of material fact. See Mesnick v. General
___ _______ _______
Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), cert. denied, 112
_________ _____ ______
S. Ct. 2965 (1992); see also Mitchell, 472 U.S. at 526.
___ ____ ________
6
B.
B.
__
The protections of the Fourth Amendment are fundamental
to the rights of all American citizens and apply unreservedly in
Puerto Rico. See Torres v. Puerto Rico, 442 U.S. 465, 471
___ ______ ___________
(1979). That prophylaxis guarantees, inter alia, every person's
_____ ____
right to be free from unreasonable searches and seizures. See
___
Payton v. New York, 445 U.S. 573, 585 (1980). Warrantless
______ _________
searches or seizures occurring within a person's home are
"presumptively unreasonable," id. at 586 a postulate which was
___
indelibly etched in jurisprudential granite at the time of
Buenrostro's arrest. See id.; see also Santiago v. Fenton, 891
___ ___ ___ ____ ________ ______
F.2d 373, 386 (1st Cir. 1989) (discussing state of the law in
1983); Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987)
_________ _____
(similar).
Payton sends the clearest signal for our purposes.
______
There, the Supreme Court held that a non-consensual, non-exigent,
warrantless entry into a home to effectuate an arrest
transgressed the Fourth Amendment, notwithstanding that probable
cause sufficient to justify the same arrest in a more public
arena may have existed. Payton, 445 U.S. at 590; see also
______ ___ ____
Minnesota v. Olson, 495 U.S. 91, 95 (1990) (describing Payton as
_________ _____ ______
holding "that a suspect should not be arrested in his house
without an arrest warrant"); New York v. Harris, 495 U.S. 14, 17-
________ ______
18 (1990) (Payton "drew a line" prohibiting police from entering
______
a person's home without a warrant); United States v. Beltran, 917
_____________ _______
F.2d 641, 642 (1st Cir. 1990) (apart from exigent circumstances
7
or a consensual entrance, the Constitution requires the police to
obtain a warrant "before entering a person's home to make an
arrest"). Absent some legally cognizable justification, then,
appellants violated a clearly established constitutional right
when they unceremoniously hauled the plaintiff from hearth and
home.
C.
C.
__
Appellants attempt to salvage their qualified immunity
defense by asserting various justifications for their actions.
They claim, first and foremost, that they had probable cause to
believe that Buenrostro was a fugitive from justice and, hence,
to arrest and detain him. That is not, however, the dispositive
criterion. Probable cause, without more, cannot legitimate a
warrantless entry into a suspect's home. See Olson, 495 U.S. at
___ _____
95; Payton, 445 U.S. at 587-90.
______
Appellants' remaining contentions can be grouped. They
contend that the wanted person request was the functional
equivalent of an arrest warrant.4 But it seems obvious to us
that, in the context of seizing an individual within the confines
of his own home, a wanted person request circulated by an out-of-
state police department differs significantly from an arrest
warrant issued by a neutral, detached magistrate within the
____________________
4If it were correct, this contention would likely carry the
day. See, e.g., Steagald v. United States, 451 U.S. 204, 214
___ ____ ________ _____________
n.7, 221 (1981) (valid arrest warrant may justify apprehension of
suspect in his own home, notwithstanding the absence of a search
warrant); Payton, 445 U.S. at 602-03 (similar).
______
8
jurisdiction where the dwelling is located.
Alternatively, appellants contend that they entered the
house with Buenrostro's consent a datum which, if true, would
obviate the need for a warrant. Buenrostro, however, vehemently
denies that he consented to the intrusion. At the summary
judgment stage, therefore, the district court could not resolve
the issue against him. See, e.g., Unwin v. Campbell, 863 F.2d
___ ____ _____ ________
124, 136 (1st Cir. 1988) (if the record reveals a genuine dispute
over a fact-specific question essential to the qualified immunity
inquiry, summary judgment cannot be granted).
What is more, the grouped contentions are both infected
by an incurable strain of procedural default. In the court
below, appellant described the qualified immunity issue as being
"simply whether the police officers, at the time they arrested
_________________________________________________________
the plaintiff, had probable cause to believe that plaintiff had
_________________________________________________________________
violated the law." Memorandum in Support of Motion for Summary
_________________
Judgment (Memorandum) at 18 (emphasis in original); see also id.
___ ____ ___
at 16. They eschewed any reliance on the WPR as a valid proxy
for a conventional arrest warrant. Their moving papers nowhere
suggested, let alone documented, that Buenrostro consented to the
entry into his home. Thus, the "arrest warrant" and "consent"
arguments are by the boards for purposes of this appeal. See
___
McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st
_____ __________________________________
Cir. 1991) (arguments made in a perfunctory or incomplete manner
in the court below are deemed waived on appeal), cert. denied,
_____ ______
112 S. Ct. 1939 (1992); Clauson v. Smith, 823 F.2d 660, 666 (1st
_______ _____
9
Cir. 1987) (theories not advanced in the district court cannot be
pressed for the first time on appeal).
We will not paint the lily.5 On this scumbled record,
the district court acted with impeccable propriety in rejecting
the qualified immunity defense and refusing to enter a summary
judgment predicated thereon.
D.
D.
__
Although our analysis to this point disposes of the
appeal, we add an eschatocol of sorts. Much of the parties'
briefing and argumentation ventures beyond the easily visualized
Fourth Amendment violation and discusses whether an additional
constitutional deprivation resulted from the sheer length of
Buenrostro's imprisonment. See Baker v. McCollan, 443 U.S. 137,
___ _____ ________
145 (1979) (dictum).6 Given the posture of this appeal,
____________________
5It should be noted that two of the appellants, Tapia Suarez
and Lopez Feliciano, were supervisors, not directly involved in
Buenrostro's arrest. In moving for summary judgment, however,
they did not suggest that their involvement should be judged by a
different standard; instead, they were content to lump themselves
with the members of the extradition squad. We have repeatedly
held that, if a defendant wishes to be separated from the pack
and treated independently from his codefendants regarding
qualified immunity, it is necessary that he make the distinction
and present an appropriate argument to that effect in the trial
court. See Brennan v. Hendrigan, 888 F.2d 189, 193 n.2 (1st
___ _______ _________
Cir. 1989); Domegan, 859 F.2d at 1065. Since appellants' moving
_______
papers did not attempt to carve out any such differential niche
in respect to either Tapia Suarez or Lopez Feliciano, we treat
them on a par with the arresting officers.
6The Baker Court wrote:
_____
We may even assume, arguendo, that, depending
________
on what procedures the State affords
defendants following arrest and prior to
actual trial, mere detention pursuant to a
valid warrant but in the face of repeated
10
however, the issue is a dead letter. We explain briefly.
In the court below, appellants premised their qualified
immunity defense strictly and solely on what they claimed was the
officers' objectively reasonable conduct in effectuating
Buenrostro's arrest.7 See Memorandum at 14-19. They cannot now
___
switch horses and argue that they are entitled to qualified
immunity on the alleged Baker violation. Qualified immunity is,
_____
after all, an affirmative defense, and the "right" to have it
determined in an intermediate appeal can be waived if it is not
properly asserted below. See, e.g., Roque-Rodriguez, 926 F.2d at
___ ____ _______________
105-06; Fisichelli, 884 F.2d at 18-19 & n.2.
__________
At any rate, the Supreme Court has made it crystal
clear that principles of causation borrowed from tort law are
relevant to civil rights actions brought under section 1983.
____________________
protests of innocence will after the lapse of
a certain amount of time deprive the accused
of "liberty . . . without due process of
law."
Baker, 443 U.S. at 145 (dictum); see also id. at 148 (Blackmun,
_____ ___ ____ __
J., concurring).
7The district court, following appellants' lead, did not
address the possibility of qualified immunity vis-a-vis the
alleged Baker violation but merely rejected appellants' effort to
_____
jettison that allegation for failure to state an actionable
claim. See Buenrostro, 777 F. Supp. at 136 (holding that the
___ __________
plaintiff, in connection with his Baker theory, "has stated facts
_____
sufficient to state a cause of action for . . . deliberate
indifference"). Since we are operating under the Mitchell
________
exception to the finality principle, we lack jurisdiction to
review that ruling at the present time. See Roque-Rodriguez,
___ _______________
926 F.2d at 105-06. Thus, we decline to speculate, here and now,
whether the Baker dictum limns a potentially viable cause of
_____
action; or, if it does, whether such a claim can be supported on
the facts sub judice.
___ ______
11
See, e.g., Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986); Monroe
___ ____ ______ ______ ______
v. Pape, 365 U.S. 167, 187 (1961); see also Wagenmann, 829 F.2d
____ ___ ____ _________
at 212-13; Springer v. Seaman, 821 F.2d 871, 876-79 (1st Cir.
________ ______
1987). Since a jury could conceivably find a causal nexus
between the unlawful arrest and the consequent imprisonment, the
particulars of the imprisonment issue will have to be litigated.
Hence, it would serve no useful purpose to address, in the
isthmian confines of an interlocutory Mitchell-type appeal,
________
whether a Baker violation also occurred. In short, once it is
_____
determined that the case must go forward on the Fourth Amendment
issue, the length and circumstances of Buenrostro's detention are
best examined at trial as part of the determination of damages
flowing from the allegedly unlawful arrest. Cf., e.g.,,
__ ____
Mitchell, 472 U.S. at 526 (as long as "the plaintiff's complaint
________
adequately alleges the commission of acts that violated clearly
established law" and the plaintiff adduces "evidence sufficient
to create a genuine issue as to whether the defendant in fact
committed those acts," the doctrine of qualified immunity will
not shield a state actor from trial).
IV
IV
__
We need go no further. On this record, the appellants
are not entitled to qualified immunity on the Fourth Amendment
claim.8
____________________
8In this case, there seem to be additional facts, not yet
fully developed and-or resolved, which could potentially inform
the ultimate decision on qualified immunity. Hence, the
defendants remain free to adduce additional proof at trial in an
effort to demonstrate that they, or some among them, should be
12
Affirmed.
Affirmed.
________
____________________
held harmless from damages by the doctrine of qualified immunity.
See, e.g., Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 329
___ ____ ____________ _______________
(1st Cir. 1987).
13
Baker v. McCollan , 99 S. Ct. 2689 ( 1979 )
Payton v. New York , 100 S. Ct. 1371 ( 1980 )
Robert Brennan v. Roderick Hendrigan , 888 F.2d 189 ( 1989 )
ronald-e-wagenmann-v-russell-j-adams-appeal-of-gerald-r-anderson , 829 F.2d 196 ( 1987 )
Steagald v. United States , 101 S. Ct. 1642 ( 1981 )
McInnis v. Harley-Davidson Motor Co., Inc. , 625 F. Supp. 943 ( 1986 )
Gerald Griggs-Ryan v. Beulah Smith, Gerald Griggs-Ryan v. ... , 904 F.2d 112 ( 1990 )
Harley McLain v. Ben Meier, Secretary of State and Allen ... , 612 F.2d 349 ( 1979 )
Charles Clauson v. Robert D. Smith , 823 F.2d 660 ( 1987 )
Awilda Morales v. Sylvia O. Ramirez , 906 F.2d 784 ( 1990 )
Beresford N. Springer v. Gretchen Seaman , 821 F.2d 871 ( 1987 )
Monroe v. Pape , 81 S. Ct. 473 ( 1961 )
Elizabeth Roque-Rodriguez v. Hon. Jose Lema Moya , 926 F.2d 103 ( 1991 )
Buenrostro v. Collazo , 777 F. Supp. 128 ( 1991 )
Milissa Garside v. Osco Drug, Inc. , 895 F.2d 46 ( 1990 )
Alfred D. Fisichelli v. The City Known as the Town of ... , 884 F.2d 17 ( 1989 )
Samuel Mesnick v. General Electric Company , 950 F.2d 816 ( 1991 )
James L. McCoy Administrator of the Electrical Workers ... , 950 F.2d 13 ( 1991 )
New York v. Harris , 110 S. Ct. 1640 ( 1990 )