Martinez-Rodriguez v. Rivera-Ramos

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2138
WILFREDO MARTINEZ, a/k/a WILFREDO MARTINEZ RODRIGUEZ,
Plaintiff, Appellant,
v.
RAFAEL COLON, a/k/a RAFAEL COLON PIZARRO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Selya, Circuit Judge.
John E. Mudd, with whom Howard Charles and Ortiz Toro &
Ortiz Brunet Law Offices were on brief, for appellant.
Edgardo Rodriguez-Quilichini, Assistant Solicitor General,
with whom Pedro Delgado Hernandez, Solicitor General, and Carlos
Lugo Fiol, Deputy Solicitor General, were on brief, for
appellees.
May 31, 1995
SELYA, Circuit Judge. This appeal raises interesting
SELYA, Circuit Judge.
questions about the contours of 42 U.S.C. 1983 (1988) and the
reach of the Supreme Court's core holding in DeShaney v.
Winnebago County Social Servs. Dep't, 489 U.S. 189 (1989).
Concluding, as we do, that the court below appropriately applied
DeShaney, we affirm the entry of summary judgment in the
defendants' favor.
I. BACKGROUND
I. BACKGROUND
Consistent with the method of Fed. R. Civ. P. 56, we
canvass the material facts in a light that flatters, but does not
impermissibly distort, the plaintiff's claims. We then recount
the travel of the case.
A. The Facts.
A. The Facts.
We outline the facts, omitting the graphic details on
which our dissenting brother prefers to dwell. In our view,
these details are not relevant to the legal issues posed on
appeal.
In the early morning hours of May 26, 1988, plaintiff-
appellant Wilfredo Martinez Rodriguez (Martinez), a youthful
member of Puerto Rico's police force, drove to the Loiza Street
Precinct, located in the San Juan metropolitan area. Though
Martinez was not scheduled to begin his shift until 4:00 a.m., he
arrived early, pursuant to local custom, in order to procure his
post assignment. Martinez alleges that he was on duty from the
moment he arrived even before his shift began because from
that point forward he was subject to the shift commander's
2
orders.
Upon Martinez' arrival, a fellow officer who was on
duty at the time, Angel Valentin Corali (Valentin), approached
Martinez' car and called him "pretty boy" ("papito lindo"). When
Martinez alighted, Valentin drew his service revolver, pointed it
at Martinez' stomach, cocked the hammer, placed his finger on the
trigger, and inquired if Martinez was afraid. Valentin then
disarmed the weapon, and Martinez hurried inside the station,
first telling Valentin: "Don't horse around with that because
you will kill me."
Shortly after this fracas had occurred, Valentin
accosted Martinez in the radio room, inserted his finger into a
small hole in Martinez' undershirt, and ripped it. Once again,
Martinez walked away from Valentin. He then changed into his
uniform, entered the waiting room, and reported to his shift
supervisor, defendant-appellee Juan Trinidad Marrero (Trinidad).
Soon thereafter, Valentin reappeared, pointed his
revolver at Martinez' genitals, cocked the hammer, and, with his
finger on the trigger, threatened to "blow away" Martinez' penis
(asking him, somewhat rhetorically, if he was scared). When
Valentin lowered the weapon, Martinez immediately moved away from
him. Within minutes Valentin again approached Martinez, cocked
the revolver, aimed it at Martinez' groin, and resumed his
taunting. The revolver accidentally discharged, maiming
Martinez.
The first encounter took place in the precinct's
3
parking lot and the rest transpired inside the police station.
According to Martinez, roughly twenty minutes elapsed from start
to finish. All parties agree that the shooting, which occurred
before the 4:00 a.m. shift change, was unintentional.1
B. Travel of the Case.
B. Travel of the Case.
On May 22, 1989, Martinez filed suit in federal
district court against numerous defendants, including, as
relevant here, Rafael Colon Pizarro (Colon), Luis A. Velez Rentas
(Velez), and Trinidad (collectively, "the officers" or "the
defendants").2 Invoking 42 U.S.C. 1983 and premising
jurisdiction on the existence of a federal question, see 28
U.S.C. 1331 (1988), he alleged that his rights had been
abridged in that each defendant owed him a duty to intervene and
protect him from readily discernible harm at the hands of a
fellow officer, but each defendant breached this duty by
subsequent inaction.3 Martinez asserted pendent tort claims
with respect to all three defendants and, with respect to
1In his memorandum of law in support of his opposition to
defendant Carlos Lopez-Feliciano's motion to dismiss, Martinez
stated that "the revolver apparently fired by accident." Record
Appendix at 21. At any rate, the summary judgment record
contains no facts that would support a contrary finding; and, for
aught that appears, Martinez has never asserted that Valentin
shot him intentionally.
2Plaintiff asserted claims against several other defendants,
including Valentin and Lopez-Feliciano. Those claims are not
before us, and we ignore them for purposes of this opinion.
3Although the underlying facts are hotly contested, we
assume for purposes of this appeal, as Martinez would have it,
that all three defendants witnessed the entire progression of
events and had a meaningful opportunity to intervene at each step
along the way.
4
Trinidad, asserted a section 1983 claim based on supervisory
liability.
After a flurry of pretrial discovery, the officers
moved for summary judgment. They argued, inter alia, that
Valentin was not acting under color of state law when the mishap
occurred; and that, therefore, onlooker officers did not have a
constitutional duty to intervene on Martinez' behalf. The
district court referred the motions and Martinez' timely
opposition to a magistrate judge. The magistrate concluded that,
under DeShaney, the officers had no constitutional obligation to
protect Martinez from Valentin's actions, and urged the district
court to grant summary judgment. The plaintiff objected to the
magistrate's report and recommendation, but the district court,
affording de novo review, see Fed. R. Civ. P. 72(b), adopted the
report, accepted the recommendation, and entered judgment
accordingly. This appeal followed.
II. THE SUMMARY JUDGMENT STANDARD
II. THE SUMMARY JUDGMENT STANDARD
A district court may grant summary judgment only "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). We have charted the boundaries of this
rule in case after case, see, e.g., Coyne v. Taber Partners I,
F.3d , (1st Cir. 1995) [No. 94-2231, slip op. at 4-5];
National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735
5
(1st Cir. 1995), petition for cert. filed, 63 U.S.L.W. 3736 (U.S.
Apr. 4, 1995) (No. 94-1630); Vasapolli v. Rostoff, 39 F.3d 27, 32
(1st Cir. 1994); Dow v. United Bhd. of Carpenters, 1 F.3d 56, 58
(1st Cir. 1993); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.
1993); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 793-94
(1st Cir. 1992), cert. denied, 113 S. Ct. 1845 (1993); United
States v. One Parcel of Real Property (Great Harbor Neck, New
Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992); Rivera-
Muriente v. Agosto-Alicea, 959 F.2d 349, 351-52 (1st Cir. 1992);
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st
Cir. 1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48-49 (1st
Cir. 1990); Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir.
1989), and it would serve no useful purpose to draw that map
anew.
For present purposes, we need say no more than that
summary judgment will lie if the record, even when taken in the
aspect most favorable to the nonmovant, see Rivera-Muriente, 959
F.2d at 352, fails to yield a trialworthy issue as to some
material fact. In applying this principle, it is important to
bear in mind that not every genuine factual conflict necessitates
a trial. It is only when a disputed fact has the potential to
change the outcome of the suit under the governing law if found
favorably to the nonmovant that the materiality hurdle is
cleared. See One Parcel, 960 F.2d at 204. Here, the record
reflects a veritable salmagundi of bitterly disputed facts but
none that is material.
6
To that extent, then, our task is simplified.
Exercising de novo review, see Pagano, 983 F.2d at 347, and
adopting the plaintiff's version of all controverted facts (but
not, however, giving credence to "conclusory allegations,
improbable inferences, [or] unsupported speculation," Medina-
Munoz, 896 F.2d at 8), we conclude that the court below did not
err in jettisoning the section 1983 claims.
III. ANALYSIS
III. ANALYSIS
There are two essential elements of an action under
section 1983: "(i) that the conduct complained of has been
committed under color of state law, and (ii) that this conduct
worked a denial of rights secured by the Constitution or laws of
the United States." Chongris v. Board of Appeals, 811 F.2d 36,
40 (1st Cir.), cert. denied, 483 U.S. 1021 (1987); accord West v.
Atkins, 487 U.S. 42, 48 (1988); Daniels v. Williams, 474 U.S.
327, 330-31 (1986). Of course, the reference to "state law"
cannot be taken literally, for Puerto Rico enjoys the functional
equivalent of statehood in regard to section 1983 and, thus,
state law includes Puerto Rico law. See Playboy Enters., Inc. v.
Public Serv. Comm'n of P.R., 906 F.2d 25, 31 n.8 (1st Cir.),
cert. denied, 498 U.S. 959 (1990); Berrios v. Inter Am. Univ.,
535 F.2d 1330, 1331 n.3 (1st Cir.), appeal dismissed, 426 U.S.
942 (1976).
For purposes of this appeal, the defendants do not
contest the plaintiff's allegation that, at all relevant times,
the defendants were on duty and acting under color of state law.
7
This concession reduces our inquiry to whether the facts, taken
most congenially to the plaintiff, can support a finding that the
defendants violated a right secured to the plaintiff either by
the Constitution or by federal law. Since the plaintiff has not
alleged the transgression of any right secured to him under a
federal statute, we may narrow the inquiry still further,
limiting it to whether the facts show a violation of a
constitutional right. It is to this elusive question that we
next proceed.
A. The Duty to Intervene.
A. The Duty to Intervene.
Plaintiff pins his hopes principally on a claim that
the defendants' failure to protect him from the imminent peril
posed by Valentin abridged his right to substantive due process.
The touchstone of the law in this area is the Supreme Court's
opinion in DeShaney. There, a child sued for damages under 42
U.S.C. 1983, claiming that employees of a state-run social
service agency, on notice of a parent's abusive behavior,
nonetheless failed to protect the child from the readily
foreseeable danger. See DeShaney, 489 U.S. at 193. The Court
affirmed the entry of summary judgment in defendants' favor.
Chief Justice Rehnquist, writing for the majority, explained that
the Due Process Clause ordinarily does not require the state to
protect an individual's life, limb, or property against the
marauding of third parties not acting to the state's behoof. See
id. at 196. Consequently, "a State's failure to protect an
individual against private violence simply does not constitute a
8
violation of the Due Process Clause." Id. at 197.
Although the DeShaney Court left open the possibility
of certain circumscribed exceptions to the general rule of
nonliability, Martinez makes no effort to slide within them. He
does not argue that he was in the custody of the state, see id.
at 198-200 (discussing right to protection arising in favor of
incarcerated prisoners and involuntarily committed mental
patients), or that he was in its "functional custody," see id. at
201 n.9 (discussing possible existence of situations analogous to
incarceration or institutionalization), or that the state made
him more vulnerable to Valentin's actions, see id. at 201.
Rather, Martinez contends that DeShaney is altogether inapposite.
To the extent that this contention is based simply and
solely on the fact that, unlike in DeShaney, the defendants here
are police officers, not social workers, we reject it. Of
course, police officers sometimes have an affirmative duty to
intervene that is enforceable under the Due Process Clause. For
example, "[a]n officer who is present at the scene [of an arrest]
and who fails to take reasonable steps to protect the victim of
another officer's use of excessive force can be held liable under
section 1983 for his nonfeasance," provided that he had a
"realistic opportunity" to prevent the other officer's actions.
Gaudreault v. Municipality of Salem, 923 F.2d 203, 207 n.3 (1st
Cir. 1990), cert. denied, 500 U.S. 956 (1991); accord O'Neill v.
Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988). But this line of
cases does not, as plaintiff importunes, carve out an exception
9
to the DeShaney rule. Instead, such cases escape the rule
because the aggressor is acting under color of his public office.
Gaudreault illustrates the point. The quoted statement
specifically contemplates that the underlying tortious conduct
take place within the context of an arrest, interrogation, or
similar maneuver, see Gaudreault, 923 F.2d at 206-07 & n.3, in
which a differential exists between the victim and the officer
precisely because of the latter's status as one empowered to
enforce the law, coercively if necessary, against the former.
Similarly, O'Neill involved the beating of a handcuffed man by
law enforcement officers during an interrogation in the detention
area of a police station. See O'Neill, 839 F.2d at 10. We
cannot imagine a more paradigmatic exercise of state authority
than the processes of handcuffing, detaining, and interrogating a
citizen. Gaudreault and O'Neill, then, are cases in which the
aggressor is acting under color of state law. The DeShaney rule
which addresses the "State's failure to protect an individual
against private violence," DeShaney, 489 U.S. at 197 (emphasis
supplied) is not implicated in such cases because the violence
in question is not private but "public," i.e., attributable to
state action.4
4A constitutional duty to intervene may also arise if
onlooker officers are instrumental in assisting the actual
attacker to place the victim in a vulnerable position. See,
e.g., Byrd v. Brishke, 466 F.2d 6, 9-11 (7th Cir. 1972); cf.
DeShaney, 489 U.S. at 201 (recognizing a possible affirmative
constitutional duty to protect against certain dangers if the
state takes "part in their creation" or does something "to render
[the victim] more vulnerable to them"). In such a scenario, the
onlooker officers and the aggressor officer are essentially joint
10
Private violence even private violence engaged in by
one who happens to work for the state has different legal
ramifications than violence attributable to state action. See,
e.g., Hughes v. Halifax County Sch. Bd., 855 F.2d 183, 186-87
(4th Cir. 1988) (distinguishing private actions of county
maintenance workers from cases in which "the actions complained
of were committed while the defendants were purporting to act
under the authority vested in them by the state, or were
otherwise made possible because of the privileges of their
employment"), cert. denied, 488 U.S. 1042 (1989).
Thus we recently held, in light of DeShaney, that a
district attorney's office had no constitutional obligation to
protect a citizen against self-inflicted private violence (there,
noncustodial suicide) alleged to have been caused by the state's
implication of him in a multiple murder case. See Souza v. Pina,
F.3d , (1st Cir. 1995) [No. 94-2079, slip op. at 9-
11]. Interpreting DeShaney to say that the state has no
generalized duty to protect its citizens from violence except
when it sets the stage by acting affirmatively (as in a custodial
setting), see id. at [slip op. at 9], we concluded that,
although the state's acts may have "rendered [the decedent] more
vulnerable to danger in the sense that those acts may have
tortfeasors and, therefore, may incur shared constitutional
responsibility. See generally Monroe v. Pape, 365 U.S. 167, 187
(1961) (advising courts to read section 1983 against the backdrop
of historical tort liability). Because there is no indication of
any such joint enterprise here, we have no occasion to explore
the viability of the theory.
11
exacerbated or even brought about [the decedent's] suicidal
tendencies . . . these are not the kind of `affirmative acts' by
the state that would give rise to a constitutional duty to
protect." Id. at [slip op. at 10] (citing Monahan v.
Dorchester Counseling Ctr., Inc., 961 F.2d 987, 992-93 (1st Cir.
1992)).
Translated to the police milieu, these cases mean that
when an on-duty police officer witnesses violence, the existence
vel non of a constitutional duty to intervene will most often
hinge on whether he is witnessing private violence or violence
attributable to state action. It remains to be seen how and
where the line that separates one from the other should be drawn.
B. Private Action.
B. Private Action.
In attempting to distinguish private violence from
violence attributable to state action for purposes of applying
the DeShaney rule, courts must beware simplistic solutions. To
be sure, violence is attributable to state action if the
perpetrator is acting under color of state law, see, e.g.,
Earnest v. Lowentritt, 690 F.2d 1198, 1200 (5th Cir. 1982)
("Section 1983 does not reach all constitutional injuries, but
only those caused by persons acting `under color of state
law.'"), but that is a virtual tautology. Furthermore, the
construct "acting under color of state law" rarely depends on
any single, easily determinable fact, such as a policeman's garb,
see, e.g., Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975)
(explaining that whether a police officer is "in or out of
12
uniform is not controlling"), cert. dismissed, 429 U.S. 118(1976), duty status, see, e.g., Pitchell v. Callan, 13 F.3d 545,
548 (2d Cir. 1994) (explaining that "whether an officer was on or
off duty when the challenged incident occurred" is not
dispositive); Stengel, 522 F.2d at 441 (same), or whereabouts,
see, e.g., Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir.
1981) (per curiam) (holding that a police chief's assault on a
private citizen was not conduct under color of law even though it
occurred at police headquarters). Nor does "acting under color
of state law" depend on whether an officer stays strictly within
the line of duty, or oversteps it. See Monroe v. Pape, 365 U.S.
167, 172 (1961); Screws v. United States, 325 U.S. 91, 111
(1945). For instance, a police officer who exercises, but
misuses or exceeds, his lawfully possessed authority is generally
thought to be acting under color of law. See, e.g., Gibson v.
City of Chicago, 910 F.2d 1510, 1518 (7th Cir. 1990).
The point is that segregating private action from state
action calls for a more sophisticated analysis. In general,
section 1983 is not implicated unless a state actor's conduct
occurs in the course of performing an actual or apparent duty of
his office, or unless the conduct is such that the actor could
not have behaved in that way but for the authority of his office.
Thus, whether a police officer is acting under color of state law
turns on the nature and circumstances of the officer's conduct
and the relationship of that conduct to the performance of his
official duties. See Pickrel v. City of Springfield, 45 F.3d
131115, 1118 (7th Cir. 1995); Anthony v. County of Sacramento, 845
F. Supp. 1396, 1400 (E.D. Cal. 1994).
We think this focus follows inexorably from West, where
the Court wrote that "[t]he traditional definition of acting
under color of state law requires that the defendant . . . have
exercised power `possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law.'" West, 487 U.S. at 49 (quoting United States v.
Classic, 313 U.S. 299, 326 (1941)). Hence, a person acts under
color of state law "when he abuses the position given to him by
the State." Id. at 50. The key determinant is whether the
actor, at the time in question, purposes to act in an official
capacity or to exercise official responsibilities pursuant to
state law. See id.
Logically, then, not every action undertaken by a
person who happens to be a police officer is attributable to the
state. Though "under `color' of law means under `pretense' of
law," even so, the acts of state officials "in the ambit of their
personal pursuits" are not state action. Screws, 325 U.S. at
111; see also Gibson, 910 F.2d at 1518. Accordingly, a
policeman's private conduct, outside the line of duty and unaided
by any indicia of actual or ostensible state authority, is not
conduct occurring under color of state law. See Barna v. City of
Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994); United States v.
Tarpley, 945 F.2d 806, 809 (5th Cir. 1991), cert. denied, 112 S.
Ct. 1960 (1992); Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476,
14
479 (9th Cir. 1991); Murphy v. Chicago Transit Auth., 638 F.
Supp. 464, 467 (N.D. Ill. 1986); Johnson v. Hackett, 284 F. Supp.
933, 937 (E.D. Pa. 1968). Even though "acting under color of
law" includes "acting under pretense of law" for purposes of a
state action analysis, there can be no pretense if the challenged
conduct is not related in some meaningful way either to the
officer's governmental status or to the performance of his
duties.
C. Separating Wheat from Chaff.
C. Separating Wheat from Chaff.
Explicating the standard for segregating private action
from action attributable to the state does not complete our task.
Since the private conduct of police officers does not constitute
action attributable to the state and, therefore, does not give
rise to section 1983 liability under DeShaney or otherwise, we
must determine whether Valentin, at the time and place in
question, was engaged in purely personal pursuits or, conversely,
whether he was acting under color of state law. To do so, we
must assess the nature of his conduct in light of the totality of
surrounding circumstances. See Pitchell, 13 F.3d at 548; Revene
v. Charles County Comm'rs, 882 F.2d 870, 872-73 (4th Cir. 1989);
Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980).
Here, the record is transpicuously clear that
throughout the course of Martinez' ordeal Valentin did not
exercise, or purport to exercise, any power (real or pretended)
possessed by virtue of state law. To the contrary, Valentin was
15
bent on a singularly personal frolic: tormenting an
acquaintance.5 Though on duty and in uniform, Valentin's status
as a police officer simply did not enter into his benighted
harassment of his fellow officer. Hazing of this sort, though
reprehensible, is not action under color or pretense of law.
Nor can it be said that Valentin's actions were in any
meaningful way related either to his official status or to the
performance of his police duties. In this regard, the case bears
a resemblance to Delcambre. There, the Fifth Circuit ruled that
the plaintiff, who had been assaulted on the premises of the
municipal police station by her brother-in-law, the police chief,
had no cognizable claim under 42 U.S.C. 1983. See Delcambre,
635 F.2d at 408. The assault arose out of a family squabble, and
the court found that the police chief, though on duty, "was not
acting under color of law as required for liability under
[section 1983]." Id.To be sure, Valentin shot Martinez with his service
revolver, and in that sense it might be argued that the shooting
was made possible by Valentin's status as a police officer. See
Cassady v. Tackett, 938 F.2d 693, 695 (6th Cir. 1991) (concluding
that, in "allegedly flourishing and threatening to use his gun"
against a coworker, the defendant acted under color of state law
because he "had authority or power to carry the gun in the jail
5To use the plaintiff's spoken characterization, Valentin
was "hors[ing] around"; or, as plaintiff put it in his second
amended complaint, "playing `Russian roulette' with another man's
genitalia."
16
only because he was [the county's] elected jailer"). This
argument succumbs for a very basic reason: plaintiff did not
proffer it either in the district court or in his appellate
brief. The argument is, therefore, not properly before us. See
United States v. Slade, 980 F.2d 27, 30 n.3 (1st Cir. 1992)
(stating that theories not briefed on appeal are waived);
Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle
is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely
in the lower court cannot be broached for the first time on
appeal.").
Even if the argument were properly before us, we would
not embrace it. We do not think it is reasonable to hold that
every use of a policeman's gun, even in the course of purely
personal pursuits, creates a cause of action under section 1983.
Instead, we are of the view that the context in which a service
revolver is used, not just the mere fact of its use, must be
consulted to determine the constitutional relevance of the
officer's conduct. See Payne v. Government of D.C., 559 F.2d
809, 825 n.9 (D.C. Cir. 1977). Consequently, "[w]hile a police
officer's use of a state-issue weapon in the pursuit of private
activities will have `furthered' the 1983 violation in a
literal sense," a court needs "additional indicia of state
authority to conclude that the officer acted under color of state
law." Barna, 42 F.3d at 817-18 (holding that "unauthorized use
17
of a police-issue nightstick is simply not enough to color [a]
clearly personal family dispute with the imprimatur of state
authority").
Here, plaintiff has not produced any evidence tending
to show that his tormentor, when brandishing the firearm, was
exercising or purporting to exercise police power.6 In the
absence of any additional indicia of state action, we believe
that the unauthorized use of a government-issue weapon is too
attenuated a link to hold together a section 1983 claim. See
Barna, 42 F.3d at 818-19; Payne, 559 F.2d at 825 n.9; see also
Bonsignore v. City of N.Y., 683 F.2d 635, 638-39 (2d Cir. 1982)
(holding that a police officer who wounded his wife and killed
himself using a gun which he was authorized to carry because of
his status as an officer "was not acting under color of state law
since his actions were not `committed in the performance of any
6Had Martinez been a civilian rather than a fellow officer,
the significance of Valentin's uniform and weapon for purposes of
the color-of-law determination might well have been greater.
See, e.g., Jones v. Gutschenritter, 909 F.2d 1208, 1212-13 (8th
Cir. 1990) (observing that the presence of a uniformed and armed
police officer may reasonably cause a civilian to refrain from
taking action to protect his rights). But when the victim is
himself a fellow officer and the particular interaction between
the two officers is of a distinctively personal nature, it can
generally be assumed that the aggressor's official trappings,
without more, will not lead the victim to believe that the
aggressor is acting with the imprimatur of the state and, in
turn, to forgo exercising his legal rights. The facts in this
case are congruent with this hypothesis. The campaign of terror
that Valentin mounted was patently personal in nature, and
Martinez unquestionably realized as much; indeed, there was not
the slightest indication that Valentin's conduct was undertaken
pursuant to the authority of his office. Plainly, the fact that
Martinez walked away numerous times shows that he was not "so
intimidated" by Valentin's status as a policeman "as to cause him
to refrain from exercising his legal right[s]." Id. at 1212.
18
actual or pretended duty,' but were performed `in the ambit of
[his] personal pursuits'") (quoting Screws, 325 U.S. at 111;
Johnson, 284 F. Supp. at 937).
We add an eschatocol of sorts. Even if a
constitutional duty to intervene conceivably could be dragooned
from these facts, then in that event the location of this case in
the penumbra of DeShaney dictates that the defendants nonetheless
would enjoy qualified immunity and, since appellant's suit only
seeks money damages, the defendants would be entitled to an
affirmance on this alternative ground. See, e.g., Garside, 895
F.2d at 48-49 (explaining that a grant of summary judgment can be
affirmed on any independently sufficient ground made manifest in
the record). We elaborate below.
"In analyzing a claim of qualified immunity, . . . we
are concerned with clearly established constitutional or
statutory rights of which a reasonable officer would have known
at the time he took action." Crooker v. Metallo, 5 F.3d 583, 584
(1st Cir. 1993) (emphasis supplied). When used in this context,
the phrase "clearly established" has a well-defined meaning. It
denotes that at the time the challenged conduct occurred the
contours of the right were sufficiently plain that a reasonably
prudent state actor would have realized not merely that his
conduct might be wrong, but that it violated a particular
constitutional right. See Anderson v. Creighton, 483 U.S. 635,
640 (1987); Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.
1992). The inquiry into the nature of a constitutional right for
19
the purpose of ascertaining clear establishment seeks to discover
whether the right was reasonably well settled at the time of the
challenged conduct and whether the manner in which the right
related to the conduct was apparent. See Wiley v. Doory, 14 F.3d
993, 995 (4th Cir. 1994) (Powell, J., sitting by designation).
In mounting this inquiry, courts may neither require that state
actors faultlessly anticipate the future trajectory of the law,
see Crooker, 5 F.3d at 585 (noting that a state actor is not
"expected to carry a crystal ball"), nor permit claims of
qualified immunity to turn on the eventual outcome of a hitherto
problematic constitutional analysis, see, e.g., Collins v.
Marina-Martinez, 894 F.2d 474, 478 (1st Cir. 1990) (recognizing
that "a plaintiff who is entitled to prevail on the merits is not
necessarily entitled to prevail on the issue of qualified
immunity"); accord Amsden v. Moran, 904 F.2d 748, 751-52 (1st
Cir. 1990) (citing other cases), cert. denied, 498 U.S. 1041(1991).
Here, there can be no doubt that, at the moment the
maiming of Martinez materialized, legitimate questions abounded
as to whether the conduct at issue violated Martinez'
constitutional rights. After all, DeShaney had not yet been
decided; thus, the whole question of a constitutional duty to
intervene was cloaked in uncertainty. Even now, with the
guidance furnished by the DeShaney Court, the precise contours of
the rule as it applies to onlooker officers are murky.
Consequently, even if Martinez had some basis for a claim that
20
the defendants owed him a duty grounded in the Constitution, the
dimensions of the right were dimly perceived (if perceived at
all). It follows inexorably that the defendants would be
entitled to qualified immunity and, hence, entitled to brevis
disposition.
D. Other Theories.
D. Other Theories.
In addition to his principal due process claim,
Martinez advances several other theories. All are unavailing.
We mention three of them (rejecting the remainder without further
elaboration).
1. Violation of Local Law. Martinez urges that the
1. Violation of Local Law.
defendants' breach of a provision of Puerto Rico's Civil Code,
P.R. Laws Ann. tit. 25, 1003 (1980),7 furnishes a basis for
liability under 42 U.S.C. 1983. He is wrong.
It is established beyond peradventure that a state
actor's failure to observe a duty imposed by state law, standing
alone, is not a sufficient foundation on which to erect a section
1983 claim. See, e.g., Amsden, 904 F.2d at 757; Chongris, 811
F.2d at 42-43. Although it is true that constitutional
significance may attach to certain interests created by state
7The statute provides in pertinent part that police officers
have a duty
to protect persons and property, to maintain
and keep the public order, to observe and
secure the utmost protection of the civil
rights of the citizens, to prevent . . .
crime and . . . enforce obedience to the laws
. . . .
P.R. Laws Ann. tit. 25, 1003 (1980).
21
law, see, e.g., Chongris, 811 F.2d at 43 (recognizing that
"property rights, while protected by the federal Constitution,
are creatures of state law"), not every transgression of state
law does double duty as a constitutional violation. The
Constitution is a charter of carefully enumerated rights and
responsibilities, defining the relationship between the people
and a government of limited powers. Its scope and application
are necessarily determined by its own terms. Though grand in its
design and eloquent in its phrasing, the Constitution is not an
empty ledger awaiting the entry of an aggrieved litigant's
recitation of alleged state law violations no matter how
egregious those violations may appear within the local legal
framework.8
Moreover, while the plaintiff states that section 1003
creates a constitutionally protected "entitlement" under Board of
Regents v. Roth, 408 U.S. 564, 576-77 (1972), he does not develop
the thesis and we do not see how Roth applies. Neither Roth's
focus nor its procedural design bears any similarity to the case
at hand. For one thing, the Roth Court's conception of a
cognizable constitutional entitlement was limited to property
interests. See id. (citing Goldberg v. Kelly, 397 U.S. 254(1970)). We fail to intuit how Roth supports the plaintiff's
8The absence of a constitutional duty to intervene in no way
detracts from the callous nature of the conduct attributed to the
officers in this case, nor does it imply that onlooker officers
confronted by private violence may not have a state law duty to
intervene. That question, quite simply, lies beyond the borders
of this opinion.
22
claim that he had an entitlement, pursuant to section 1003, to be
protected in his physical person. For another thing, the
remedial framework contemplated by Roth procedural due process,
principally in the form of notice and a hearing, see id. at 577
has no applicability at all to Martinez' remonstrance. Whatever
other uncertainties may plague this case, it is clear that
Martinez is claiming a substantive due process violation, not a
procedural due process violation. See, e.g., Amsden, 904 F.2d at
753-54 (delineating differences).
In sum, Roth is a round hole, and Martinez' square peg
of a case does not fit within it.
2. Equal Protection. The plaintiff makes the bold
2. Equal Protection.
assertion that he was denied rights secured to him under the
Equal Protection Clause because, were he a private citizen, the
defendants would almost certainly have come to his rescue. He
does not embellish this ipse dixit in any way.9 Consequently,
it does not assist his cause. "It is settled in this circuit
that issues adverted to on appeal in a perfunctory manner,
unaccompanied by some developed argumentation, are deemed to have
been abandoned." Ryan v. Royal Ins. Co. of Am., 916 F.2d 731,
734 (1st Cir. 1990); accord United States v. Zannino, 895 F.2d 1,
9This criticism rests neither on the economy of Martinez'
asseveration nor on its potential incoherence, but, rather, on
the utter lack of any legal foundation provided for the claim;
Martinez makes reference to no constitutional provision, no
statute, no case law, no treatise, not even a law review article.
Parties to legal controversies must do more than allege
unsupported facts to survive summary judgment; they must at the
very least explain the basis for, and the legal significance of,
those facts.
23
17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990); Collins v.
Marina-Martinez, 894 F.2d 474, 481 n.9 (1st Cir. 1990). So it is
here: the plaintiff's fleeting reference to equal protection
does not succeed in preserving the issue for review.10
3. Supervisory Liability. Finally, the plaintiff
3. Supervisory Liability.
maintains that Trinidad, if not liable under section 1983 as an
onlooker officer, may be held liable qua shift supervisor for
Valentin's acts. "Supervisory liability attaches only if a
plaintiff can demonstrate by material of evidentiary quality an
affirmative link between the supervisor's conduct and the
underlying section 1983 violation." Maldonado-Denis v. Castillo-
Rodriguez, 23 F.3d 576, 583 (1st Cir. 1994); see also Febus-
Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir. 1994);
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
1989). Because no underlying constitutional violation in fact
occurred, see supra Part III(C), no supervisory liability can be
10To the extent that our dissenting colleague proposes that
the defendants' nonintervention cannot be deemed rational, see
post at pp. 30-31, this is merely another way of disagreeing with
our conclusion that Valentin's conduct was private, not public.
As for the larger issue of drawing distinctions between the
private and the public, we note simply that such distinctions are
regularly and validly drawn by courts and legislatures alike.
See, e.g., Westlands Water Dist. v. Amoco Chem. Co., 953 F.2d
1109, 1113 (9th Cir. 1991) (finding a rational basis for
distinguishing between public and private tortfeasors in regard
to recovery of punitive damages); Southern Cal. Edison Co. v.
United States, 415 F.2d 758, 760 (9th Cir.) (noting that "under
the equal protection clause the separate classification of
privately and publicly owned utilities has long been held
justifiable"), cert. denied, 396 U.S. 957 (1969). It is this
very distinction public versus private that undergirds not
only DeShaney but also the Bill of Rights itself.
24
attributed to Trinidad under section 1983.11
IV. CONCLUSION
IV. CONCLUSION
We need go no further. Because the defendants' failure
to intervene and protect the plaintiff against Valentin's private
actions, though regrettable, cannot be said to have violated
rights secured to the plaintiff by the United States
Constitution, see DeShaney, 489 U.S. at 196-97, the district
court did not err in summarily disposing of the federal claims.
And, once the court determined so far in advance of trial that no
legitimate federal question existed, the jurisdictional basis for
plaintiff's pendent claims under Puerto Rico law evaporated. See
Brennan, 888 F.2d at 196. Thus, the court properly dismissed the
balance of the complaint.12
Affirmed.
Affirmed.
Dissent follows
11Moreover, Trinidad was not the supervisor on Valentin's
shift (during which Martinez was shot), but, rather, on the
subsequent 4:00 a.m. to 12 noon shift. Thus, it is far from
clear that supervisory liability would be a viable theory vis-a-
vis Trinidad even if an underlying constitutional violation could
be shown.
12Of course, the dismissal operates without prejudice to
whatever rights plaintiff may have to prosecute the pendent
claims in the courts of Puerto Rico. See Feinstein v. RTC, 942
F.2d 34, 47 (1st Cir. 1991).
25
BOWNES, Senior Circuit Judge, dissenting. For the
BOWNES, Senior Circuit Judge,
reasons that follow, I cannot join the majority opinion. I
start with the facts. Although the majority's factual
recitation is not inaccurate, it is not a full-bodied
portrayal of what happened.
I.
I.
Plaintiff, Martinez, was a young (age twenty) and
comparatively new member of the Puerto Rico Police Force. On
the day of the events giving rise to this case, he arrived at
the police station sufficiently early to be given his duty
assignment. Martinez parked his car in the police parking
lot. He got out of his car and started towards the police
station to get his orders for the day. There were four other
police officers in the lot: the defendants -- Colon, V lez
and Trinidad -- and Valentin, who is not a defendant. As the
majority acknowledges, the defendants were, at all relevant
times, on duty as police officers and acting under color of
state law. The three defendants observed the events that
took place in the parking lot and the police station and
heard Valentin's denigrating remarks to Martinez. None of
the defendants asked Valentin to stop his verbal and physical
assaults against Martinez. To put it starkly, they stood by
and watched without protest Valentin "blow away" Martinez's
penis.
26
As Martinez walked across the parking lot, Valentin
said to the defendants, "Here comes Pretty Boy." Valentin
then accosted Martinez, drew his service revolver, pointed it
directly at Martinez's genital area, cocked it, put his
finger on the trigger, asked Martinez if he was afraid, and
then lowered the revolver. Martinez told Valentin: "Don't
horse around with that because you will kill me." Martinez
then proceeded into the station house. A short time later
Valentin again confronted Martinez; this time he pushed his
finger through a hole in Martinez's undershirt and ripped the
shirt open. The record does not disclose whether any words
were spoken at this juncture. Martinez put his police
uniform on and reported to his shift supervisor, defendant
Trinidad.
A short time later Valentin again assaulted
Martinez. This assault was similar to the first
confrontation, but with an ominous threat. This time
Valentin pushed the muzzle of his loaded and cocked revolver
into the front of Martinez's pants and threatened to "blow
away" Martinez's penis. Valentin then asked Martinez if he
was scared. After Valentin withdrew the weapon, Martinez
moved away from him.
A short time later, within minutes, Valentin again
accosted Martinez. He loaded and cocked his revolver and
then inserted it into the front of Martinez's pants while
27
continuing to verbally abuse him. The charade ended when
Valentin's revolver discharged. Valentin's prior threat
became a reality; Martinez's penis was in fact blown away and
he was rendered permanently impotent.
The majority calls the shooting accidental and
says, "All parties agree that the shooting . . . was
unintentional." Ante at 4. Whether the shooting was
accidental or not, it can be concluded, based on Valentin's
words and actions, that it was an accident that was bound to
happen. What Valentin did makes Russian roulette seem like a
parlor game.
II.
II.
The majority's central holding is premised on a
ruling that Valentin was not acting under color of state law.
In my view, the facts taken in the light most favorable to
plaintiff establish that Valentin was acting under color of
state law.
As the majority points out: "`[T]he traditional
definition of acting under color of state law requires that
the defendant have exercised power possessed by virtue of
state law and made possible only because the wrongdoer is
clothed with the authority of the state.'" Ante at 13
(quoting West v. Atkins, 487 U.S. 42, 49 (1988)) (ellipses
and internal quotation marks omitted). Simply stated, "a
person acts under color of state law `when he abuses the
28
position given him by the State.'" Id. (quoting West, 487
U.S. at 50). I think that Valentin exercised power possessed
by virtue of Puerto Rico law and made possible only because
he was clothed with the authority of Puerto Rico, and that he
abused that power.
Even if I disregard the obvious -- that Valentin
was in uniform, on duty, in the police station, and used his
service revolver to commit the tort (all of which militate
heavily in favor of a finding that Valentin abused his
position as a police officer) -- I believe that Valentin's
status as a police officer was the only reason the defendants
took no action. If Valentin had been a private citizen and
had been tormenting Martinez in the same manner, the
bystander officers certainly would have intervened. The
record gives rise to a reasonable inference that Valentin's
police-officer status led the bystander officers to conclude
that: (1) Valentin was not mentally unbalanced to the point
that he might actually shoot Martinez, but a stable person
only engaged in harassment or horseplay; and (2) Valentin was
skilled enough with firearms to be allowed to engage in this
sort of stupidity. Consequently, the record gives rise to an
inference that Valentin's police-officer status was a sine
qua non of the bystander officers' non-intervention. In my
view, this inference establishes that Valentin was acting
under color of state law.
29
The majority suggests that Martinez's status as a
police officer somehow reduced the likelihood that Martinez
perceived Valentin to be acting with the imprimatur of the
Commonwealth. See id. at 17 n.6. I believe the opposite
conclusion is at least as likely to be true. After the
bystander officers (including Trinidad, who had supervisory
authority) failed to intervene during the initial rounds of
abuse by Valentin, Martinez could well have concluded that
this type of hazing of young officers was standard fare in
the Loiza Street Precinct. Therefore, Martinez could well
have believed that the Commonwealth acquiesced in Valentin's
actions.
Because Valentin was acting under color of state
law, I think it pellucid that DeShaney does not bar this
suit. At most, DeShaney precludes civil rights actions
against state actors under the Due Process Clause for failing
to protect an individual against private violence. See 489
U.S. at 197. The DeShaney majority took pains to distinguish
the case before it from situations where the state itself,
through its own affirmative action prior to the complained-of
non-intervention, limited the victim's freedom. Id. at 198-
201 (contrasting situations where the state has taken custody
of certain individuals and thereby incurred "some
responsibility for [their] safety and well-being"). Here,
the Commonwealth, acting through the person of Valentin,
30
compromised Martinez's freedom by successively assaulting him
three times with a loaded service revolver. See West, 487
U.S. at 49. In my view, this infringement was more than
sufficient to support Martinez's substantive due process
claim. DeShaney, 489 U.S. at 200 ("In the substantive due
process analysis, it is the State's affirmative act of
restraining the individual's freedom to act on his own behalf
-- through incarceration, institutionalization, or other
similar restraint of personal liberty -- which is the
`deprivation of liberty' triggering the protections of the
Due Process Clause.").
I believe it important to comment on three discrete
parts of the majority opinion. The majority concedes that
Valentin's use of his service revolver might arguably bring
his actions within the color of state law. Ante at 16. This
is then rejected on two grounds: that it was not raised in
the district court or plaintiff's appellate brief; and on the
merits. I cannot help but wonder why the straw man approach
was used. In any event, I disagree on both grounds.
Fairly construed, Martinez's argument that
Valentin's status as an on-duty police officer made him a
state actor incorporates the argument that Valentin used the
indicia and tools of his trade (including his service
revolver) to carry out the shooting. For me, this is more
than enough to allow us to consider Valentin's use of his
31
service revolver as a factor in determining whether he was a
state actor.
I am also am troubled by the majority's finding
that Martinez waived his equal protection claim. Id. at 22.
As an initial matter, I think it important to state that the
claim appears to have some substance. How, after all, can it
be rational for bystander officers not to intervene simply
because one of their own -- as opposed to a civilian -- is
being victimized by violence? What legitimate state
objective could such inaction serve?
The majority finds that Martinez abandoned this
claim because he failed to "embellish" it sufficiently. Id.
I do not think that the issue needed any embellishing. It
was called an equal protection claim and stated relatively
clearly: "If Wilfredo had been a private citizen, it seems
clear that defendants-appellees would have realized that they
were obliged under the law to protect him from the threat of
serious damages." Appellant's Brief at 9. In my view, this
was sufficient to put the claim in issue.
Finally, I think it important to refute the
majority's suggestion that Valentin might not have been
acting under color of state law even if Martinez had been a
civilian. Ante at 17 n.6 ("Had Martinez been a civilian
rather than a fellow officer, the significance of Valentin's
uniform and weapon for purposes of the color-of-law
32
determination might well have been greater.") (emphasis
supplied). I find the suggestion remarkable. If a civilian
had suffered the abuse Martinez experienced at the hands of
an on-duty, uniformed police officer using his service
revolver in front of other officers in a police station,
well-settled precedent would dictate a finding that the
civilian was victimized under color of state law. We should
not even hint that this may not be so.
III.
III.
I also cannot agree with the majority's conclusion
that an unargued qualified immunity theory provides an
alternative ground for affirmance in this case. See id. at
18-20.
Under the qualified immunity doctrine, "government
officials performing discretionary functions[] generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
determining whether a right was "clearly established" at the
relevant point in time, courts must analyze it at the
appropriate level of specificity. Thus, a right is not
"clearly established" for qualified immunity purposes unless
its contours are sufficiently clear so "that a reasonable
33
official would understand that what he is doing violated that
right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The majority suggests that Martinez's right to have
the bystander officers intervene on his behalf was "cloaked
in uncertainty" and was "murky" at the time of the relevant
events. I disagree. As the majority concedes, it was
settled at the time of the events in this case that
[a]n officer who is present at the scene
[of an arrest] and who fails to take
reasonable steps to protect the victim of
another officer's use of excessive force
can be held liable under section 1983 for
his nonfeasance, provided that he had a
realistic opportunity to prevent the
other officer's actions.
Ante at 9 (citations and internal quotation marks omitted).
In my view, this line of authority controls here.
The majority distinguishes this precedent by
suggesting that it is inapplicable where the tortfeasor
officer is not acting under the color of state law, and then
concludes that Valentin was not so acting here. For the
reasons I have explained above (and despite the opinion of my
esteemed colleagues), I do not think that an objectively
reasonable police officer could have seen Valentin's actions
as purely private. And because Valentin was acting under the
color of state law, the aforementioned authority was
sufficient to have informed defendants of their obligation to
intervene on Martinez's behalf. See Anderson, 483 U.S. at
640 ("This is not to say that an official action is protected
34
by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the
light of pre-existing law the unlawfulness must be
apparent.") (citation omitted). If excessive force during
the course of a lawful arrest requires intervention, so too
should an assault with a deadly weapon taking place during
the course of an entirely unlawful seizure. I therefore
disagree with the majority's qualified immunity analysis.
IV.
IV.
Police officers are entrusted with great powers --
including the privileged use of force -- for the very purpose
of preventing lawless violence. When an officer abuses those
powers in front of his peers, he in effect presumes their
tacit acquiescence, if not outright approval. In this
situation, the other officers have a constitutional duty to
intervene. I therefore respectfully dissent.
35