Rodriguez-Cirilo v. Garcia

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1306

CELSO RODRIGUEZ-CIRILO, ET AL.,

Plaintiffs - Appellants,

v.

JUAN B. GARCIA, ET AL.,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and DiClerico, Jr.,* District Judge.

Kevin G. Little with whom Law Offices David Efr n was on

brief for appellants.
Eduardo Rodr guez-Quilichini, Assistant Solicitor General,

Department of Justice, with whom Carlos Lugo-Fiol, Solicitor

General, and Edda Serrano-Blasini, Deputy Solicitor General, were

on brief for appellees.

June 2, 1997

* Of the District of New Hampshire, sitting by designation.

TORRUELLA, Chief Judge. Plaintiffs-appellants are six
TORRUELLA, Chief Judge.

family members, one of whom, Celso Rodr guez-Cirilo ("Celso"),

was the victim of a stabbing. Celso was stabbed by his brother,

Francisco Rodr guez-Cirilo ("Francisco"), who is not a party to

the suit. The family members filed a civil rights damages action

under 42 U.S.C. 1983 (1994) against two officers of the Puerto

Rico Police Department alleging that the officers' failure to

enforce a temporary detention order against Francisco caused the

injury to Celso and thus violated his constitutional rights.1

The district court held that plaintiffs failed to

establish that a due process right protected under section 1983

was violated by the officers' failure to prevent private

violence, and also held that plaintiffs could not establish

causation. Having reviewed the record and the parties' briefs on

appeal, we find that the district court's treatment of the

causation issue correctly identifies a sufficient ground for

granting summary judgment to the defendants. We therefore do not

reach the nettlesome legal question of whether, in light of

DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189

(1989), a police officer's knowing refusal to carry out the

express terms of a non-discretionary detention order can be

deemed an "affirmative act" that, by increasing the risk of

private harm to those sought to be protected by the order, may

1 In view of the ambiguous wording of the plaintiffs' complaint,
the district court chose to treat this section 1983 suit as one
claiming a violation of due process under the Fourteenth
Amendment. On appeal, neither party suggests otherwise.

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trigger due process concerns. Cf. DeShaney, 489 U.S. at 201;

Frances-Col n v. Ram rez, 107 F.3d 62, 64 (1st Cir. 1997)

(discussing the limited scope for relief under section 1983 where

"the government employee, in the rare and exceptional case,

affirmatively acts to increase the threat of harm to the

claimant"); Soto v. Flores, 103 F.3d 1056, 1064 (1st Cir. 1997)

("In a creation of risk situation, where the ultimate harm is

caused by a third party, courts must be careful to distinguish

between conventional torts and constitutional violations.").

BACKGROUND
BACKGROUND

In the summary judgment context, we relate all

material facts in genuine dispute in the light most favorable to

the party resisting summary judgment, here the plaintiffs.

S nchez v. Alvarado, 101 F.3d 223, 225 n.1 (1st Cir. 1996). On

March 16, 1994, Jorge Rodr guez-Nieves ("Jorge"), a nephew of

both Celso and Francisco who is not a party in the instant suit,

filed a petition pursuant to the Mental Health Code of Puerto

Rico ("Law 116"),2 to have his uncle Francisco involuntarily

detained for psychiatric examination. The petition stated that

Francisco presented a danger to himself and others and had

threatened to kill with a sharp object, such as a machete or a

knife. On March 17, 1994, a San Juan municipal court judge

responded to the petition by issuing an order that Francisco be

detained for examination. The temporary detention order

authorizes a law enforcement officer to detain the subject --

2 See P.R. Laws Ann. tit. 24 6006 (Supp. 1991).

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with the assistance of health care personnel if necessary -- and

to take him to a psychiatric institution where he can be

examined, and where he cannot be held for more than 24 hours. If

the examining doctor concludes that detention for any longer

period or treatment of the subject is required, then that doctor

must notify the petitioner, who must then notify the court. The

temporary detention order under Law 116 does not explicitly give

police officers any discretion with regard to enforcement.3

On the same day that the order was issued, Jorge,

along with two of Francisco's siblings (but not Celso), went to a

police station to have the order enforced. The defendants were

at the police station and assumed the task of enforcing the

order, calling on paramedics for assistance. Later that day, the

defendant police officers, the paramedics, and the three family

members found Francisco at a local establishment. Francisco

refused to go with the officers, stating that he was already

being treated at a veteran's hospital. The officers then failed

to carry out the order, despite the efforts of the family members

to convince the officers that Francisco was dangerous. Before

departing, the officers told the family members that they

themselves should take Francisco to a veteran's hospital for

treatment, which is contrary to the stated procedure under Law

116.

3 Defendants appear to concede the fact that carrying out the
terms of such a Law 116 order is a non-discretionary obligation
on the part of the police officer.

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No further legal steps were taken to obtain another

detention order, although the plaintiffs and other family members

assert that they made further informal requests to the police to

take Francisco into custody. Francisco was ultimately never

taken to a hospital for examination or treatment. On April 6,

1994, nearly three weeks after the defendants' failure to carry

out the temporary detention order, the injury giving rise to this

damages suit occurred. Francisco stabbed his brother Celso while

Celso was at their mother's house for a visit. Celso had argued

with Francisco about getting their mother some water and then

stood out on a balcony; a few minutes later Francisco returned

and stabbed Celso in the chest with a knife. Celso suffered

injuries to his chest and to his respiratory and digestive

systems.

Plaintiffs brought actions for damages under both

section 1983 and Puerto Rico tort provisions. The district court

granted summary judgment to defendants on the section 1983 suit

and dismissed the state tort claims without prejudice.

DISCUSSION
DISCUSSION

We review the district court's grant of summary

judgment de novo. Serrano-Cruz v. DFI Puerto Rico, Inc., No. 96-

1418, 1997 WL 114118, at *2, --- F.3d --- (1st Cir. 1997).

The essential elements of a claim under section 1983

are: First, that the defendants acted under color of state law;

and second, that the defendants' conduct worked a denial of

rights secured by the Constitution or by federal law. Mart nez

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v. Col n, 54 F.3d 980, 984 (1st Cir. 1995). To satisfy the

second element, plaintiffs must show that the defendants' conduct

was the cause in fact of the alleged deprivation. See Guti rrez-

Rodr guez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989). The

issue of causation of damages in a section 1983 suit is based on

basic notions of tort causation. See Maldonado Santiago v.

Vel squez Garc a, 821 F.2d 822, 831 (1st Cir. 1987) ("Section

1983 imposes a causation requirement similar to that of ordinary

tort law."). In applying basic tort principles to the facts

raised by a particular section 1983 claim, the causation

requirement may be fleshed out with reference to state law tort

principles. Guti rrez-Rodr guez, 882 F.2d at 561.

As discussed in the decision below, plaintiffs cannot

establish that the conduct of the defendants, in not enforcing

the temporary detention order, was the legal cause of an attack

occurring much later. See Rodr guez-Cirilo v. Garc a, 908 F.

Supp. 85, 91 (D.P.R. 1995). The concept of proximate causation

restricts tort liability to those whose conduct, beyond falling

within the infinite causal web leading to an injury, was a

legally significant cause. The passage of time can certainly

reduce the legal significance of a particular contributing act.

See Restatement (Second) of Torts 433 (1965) (lapse of time a

factor to be considered in determining whether a contributing

factor is substantial).

The remoteness in time of the harm in this case

precludes a finding of proximate causation. Although Francisco

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committed the kind of violence mentioned in the petition for a

detention order, the space of over two weeks that passed after

the officers' failure to detain Francisco, during which time

family members did not attempt to obtain another detention order,

renders his later act of violence too remote to impose liability

on the officers. Cf. Mart nez v. California, 444 U.S. 277, 285

(1980) (murder committed by parolee five months after release

"too remote" a consequence to hold parole board liable under

section 1983); Restatement (Second) of Torts 433 (1965).

Although the stabbing occurred at the address named in the

original petition, and although the police officers may have had

some indication that Celso would be at danger from an attack by

Francisco,4 given the intervening time we cannot say that the

officers' failure to enforce the order was the legal cause of the

injury. See Mart nez, 444 U.S. at 285; Restatement (Second) of

Torts 433 cmt. f ("Experience has shown that when a great

length of time has elapsed between the actor's negligence and

harm to another, a great number of contributing factors may have

operated, many of which may be difficult or impossible of actual

4 It is a widely recognized tort law principle that one may be
responsible for the foreseeable intervening acts of third
parties. For example, the requirement of "causalidad adecuada"
under Puerto Rico tort law would permit the assignment of
liability if the intervening third party action -- that is,
Francisco's stabbing -- was a reasonably foreseeable consequence
of the defendants' actions. Widow of Andino v. Puerto Rico Water

Resources Auth., 93 P.R.R. 168, 177-79 (P.R. 1966) (harm caused

by reasonably foreseeable intervening causes, including the
actions of third parties, may lead to liability).

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proof. . . . [T]he effect of the actor's conduct may thus be so

attenuated as to be insignificant . . . .").

What further persuades us that the causation issue in

this case is dispositive is that even if Francisco had been taken

to a hospital on March 17, 1994, for examination, appellants have

not shown that an examination performed on that day would have

prevented the violent attack, spurred by an argument, on April 6,

1996. The temporary detention period was itself limited to a

maximum of twenty-four hours. Appellants offered no competent

evidence that could have supported a finding that an examination

in Francisco's particular case would have prevented the later

attack. Appellants rely on a clinical psychologist's signed

statement asserting that Francisco's "personality disorder"

caused the stabbing, and that, had Francisco been detained on

March 17, 1994, he would have received effective treatment that

would have prevented the stabbing. This statement, based solely

on information collected through conversations with Francisco's

relations and formed without any direct examination of either

Francisco or of his medical records, is not enough to defeat

defendants' motion for summary judgment and does not create a

triable issue of material fact as to causation.5 "The nonmoving

party must establish a trial-worthy issue by presenting 'enough

5 This statement, as the district court notes, would probably be
found unreliable and inadmissible as expert testimony under Fed.
R. Evid. 702. Garc a, 908 F. Supp. at 91-92. In any event, the

psychologist's broad assertion regarding causation does not
create a triable issue in this case, where the defendant's case
as to a lack of proximate causation is strong.

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competent evidence to enable a finding favorable to the nonmoving

party.'" LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st

Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986)). Thus, not only do appellants run into

proximate causation problems, but their case also falls short

with regard to demonstrating the "but for" aspect of causation.

See Restatement (Second) of Torts, 432 (1965). We conclude,

therefore, that defendants were properly granted summary judgment

based on plaintiffs' failure to demonstrate causation under well-

established tort principles.

Appellants' remaining arguments on appeal do not

require lengthy treatment. First, we note that the record

indicates that the appellants have failed to support, with any

competent evidence, their additional assertion that there existed

a conspiracy between the defendants and Francisco to violate

plaintiffs' civil rights. Second, in response to appellants'

claim that the district court abused its discretion in denying

them an opportunity to amend their complaint after the deadline

for such amendments established in the court's scheduling order,

we note that even had the plaintiffs been able to amend their

complaint by adding as a third defendant the supervisor of the

two defendant police officers, the fundamental, insurmountable

obstacle of causation would still have remained, and would still

have offered a sufficient ground for summary judgment in favor of

defendants.

CONCLUSION
CONCLUSION

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For the foregoing reasons the district court's grant

of summary judgment to defendants is affirmed.

Concurrence Follows

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CAMPBELL, Senior Circuit Judge (Concurring). I write
CAMPBELL, Senior Circuit Judge (Concurring)

separately because I believe that there was sufficient evidence

of causation to allow the issue to go to the jury. However, I

concur with the majority's result because I do not think the

police officers' conduct constituted a violation of the

plaintiffs' constitutional due process rights.

I. Causation
I. Causation

I think the record indicates the existence of a factual

issue as to causation, precluding the granting of summary

judgment in favor of Defendants on the ground of an absence of

causation. See Ahern v. O'Donnell, 109 F.3d 809, 811 (1st Cir.

1997) (all inferences to be made in favor of party against whom

summary judgment sought).

Causation depends upon whether, assuming the police

officers violated 1983 on March 17 by not carrying out the

court order directing them to take Francisco into custody for

psychiatric examination, there was a sufficient causal connection

between the officers' default and Francisco's stabbing of a

relative two weeks later.

Causation in tort law is generally divided into two

concepts: causation in fact, or actual causation, and proximate

or legal causation. See W. Page Keeton et al., Prosser & Keeton

on Torts 41-42 (5th ed. 1984). The terms for these two

concepts are sometimes confused, as are the concepts themselves.

Regardless of the terminology, however, there are two questions

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that must be answered to determine if a defendant's conduct

"caused" a plaintiff's injury. The first question is whether

there was in fact some causal relationship between the conduct

and the outcome. The Restatement expresses this test as whether

the defendant's conduct was a "substantial factor" in producing

the harm. Id. The second question is whether the circumstances

and causal relationship are such that the law will impose

liability on the defendant. Sometimes this is expressed as a

foreseeability test, see Keeton, supra, 42, at 273. Cf.

Restatement (Second) of Torts, 431(b) (1965) (different

terminology).

Regarding the second issue, foreseeability, that prong

is plainly satisfied here. A foreseeable result of the police

officers' failure to take Francisco to the psychiatrist for

examination, as ordered by the court, was that he would harm

someone, since the express basis of the court order was

Francisco's potential dangerousness and likely eligibility for

involuntary commitment in a mental health facility. The reason

for the ordered psychiatric examination, as Puerto Rico's

statute specifically provides, infra, is to determine whether a

person believed to be dangerous is dangerous, and needs to be

committed immediately in order to avoid the kind of harm

Francisco later caused. While under the preliminary court order

in issue Francisco could only be detained for twenty-four hours,

the order directed that he be psychiatrically examined during

that period and that, within the twenty-four hours, a report of

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his condition be sent to the judge and proper steps be initiated

for his involuntary admittance should that be indicated. Thus

the harm that occurred here was clearly a foreseeable result of

interrupting the protective process begun by the petition and

order.

Since the harm that occurred was foreseeable, the only

remaining question is that of actual cause, i.e., whether

Francisco's later assault with a knife was actually linked

causally in sufficient degree to the police's failure to detain

Francisco for the ordered psychiatric examination. I believe

that on this record a factual issue is raised as to whether the

police officers' failure to comply with the court order to detain

Francisco was a "substantial factor" in bringing about the harm

from Francisco's later stabbing of Celso.6

The order the police failed to carry out was issued

under a comprehensive statutory scheme for the examination and

involuntary commitment to a mental health facility of mentally

ill people who are dangerous to themselves or others. In the

first step of this process, any person who fears an individual

may be psychologically unstable may bring that individual to the

attention of a Puerto Rico court. P.R. Laws Ann. tit. 24,

6 Although the majority discusses the Restatement's "substantial

factor" test under the rubric of proximate causation, Rodr guez-

Cirilo v. Garc a, F.3d , No. 96-1306, slip op. at 6 (1st

Cir. May , 1997), it is perhaps more accurately described as
referring to actual causation. See Keeton, supra, 42, at 278

("[T]he 1948 revision of the Restatement limited [the]
application [of the "substantial factor" test] very definitely to
cause in fact alone.") (citing, inter alia, Restatement (Second)

of Torts 433 (1965)).

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6006. This occurred here when a relative, Mr. Jorge Rodr guez-

Nieves, filed a petition to the Puerto Rico court declaring that

Francisco was believed dangerous, having threatened to kill

someone with a sharp object such as a machete or a knife. The

petition also stated that Francisco had previously been in a

recognized mental institution.

The second step spelled out in the Puerto Rico statute

is for a judge to decide, preliminarily, whether or not there are

"reasonable grounds to believe that the patient is subject to

involuntary admission and needs immediate hospitalization to keep

him from harming himself, other persons or property." Id.

(emphasis supplied). The judge expressly found such reasonable

grounds here and issued a written order that Francisco was to be

detained for twenty-four hours and examined by a psychiatrist to

determine "if he should be admitted immediately and involuntarily

to the psychiatric institution," as the statute provided. The

order directed that an explanatory report be returned to the

judge within the twenty-four hours and a resolution of

provisional admittance prepared in the event continued

hospitalization was required. It was the court order containing

the above provisions that the police allegedly failed to carry

out, with the result that Francisco was never examined by a

psychiatrist and the necessary steps never taken for his

involuntary hospitalization should that have been recommended by

the psychiatrist.

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If Francisco had been examined, the psychiatrist was

under a duty, as the order and Puerto Rico law provide, to report

his findings concerning Francisco's mental condition and

potential dangerousness back to the court within twenty-four

hours. If the court had then found by clear and convincing

evidence, see P.R. Laws Ann. tit. 24, 6089, that Francisco was

"subject to involuntary admission," the court would have ordered

him confined to a mental health facility. P.R. Laws Ann. tit.

24, 6090. The statute provides that a person is "subject to

involuntary admission" if he is mentally ill and if, because of

his illness, he "may reasonably be expected to physically injure

himself or any other person, or damage property." P.R. Laws Ann.

tit. 24, 4002(14)(a).

It is important to emphasize that the order here in

question did not merely provide for a twenty-four hour period of

detention. Rather it was based on a judge's finding of

reasonable cause to believe that Francisco was a candidate for

involuntary admission, i.e. confinement, in a mental health

facility. The twenty-four hours' detention was merely the period

within which he was to be evaluated, after which, if the initial

finding was confirmed, he would be involuntarily committed for a

more extended period. Under Puerto Rico law, a court's order for

involuntary admission is limited, in the first instance, to a

term of thirty days, but it can be followed by an additional

thirty-day order. P.R. Laws Ann. tit. 24, 6094(a). This

second thirty-day period may then be supplemented by additional

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periods of 180 days as long as the patient "continues to be

subject to involuntary admission." P.R. Laws Ann. tit. 24,

6094(b). So in effect, once involuntarily admitted, a person may

be forced to remain confined in a mental health facility

indefinitely if he remains a danger to himself, others, or to

property because of a mental illness.

I believe the evidence here plainly creates a jury

issue as to whether Francisco would likely have been confined to

a mental health facility for a sufficient period of time to

render him unable to stab Celso when he did, had the police

complied with the court order to detain him for a psychiatric

examination. A jury could find that the police officers' failure

to enforce the order was a "substantial factor" in the ensuing

harm.

As noted, there is evidence that Francisco had

threatened to kill with a sharp object, such as a machete or a

knife, a threat followed by stabbing his brother two weeks later.

The record also indicates his prior hospitalization in a mental

facility, giving rise to an inference that his behavior stemmed

from an underlying mental condition. Even more significantly,

the record shows a judicial determination, reciting the

consideration of evidence, that "the Court finds a reasonable

basis to believe that [Francisco] may be subject to an

involuntary admission treatment and hospitalization under the

provisions of the Puerto Rico Mental Health Code." Underlying

that determination necessarily lay a finding of reasonable

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grounds to believe that Francisco might harm himself, other

persons or property. See P.R. Laws Ann. tit. 24, 6006.

The above facts more than suffice, in my view, to

demonstrate a triable issue over whether, if the defendants had

done their duty and brought Francisco to the psychiatrist for

examination, the latter would more likely than not have found

that Francisco was mentally ill and a danger to himself or to

others and recommended committing him involuntarily. Had that

recommendation been made, it could also be reasonably inferred

that the Puerto Rico court would have implemented it pursuant to

the statutory authority described above, and that Francisco,

being confined, would not have been able to stab Celso two weeks

later. Hence, I believe there is adequate evidence to create a

factual issue for later trial over whether the police officers'

default was a "substantial factor" in causing Celso's stabbing.7

The majority argues that no reasonable jury could find

that the police officers' failure to bring Francisco to the

psychiatrist actually caused Celso's injuries. They point out

that two weeks elapsed between the police officers' failure to

7 My colleagues' error, as I see it, is in treating causation as
a matter for their own determination now rather than recognizing
that, on summary judgment, the question is simply whether,
viewing everything most favorably to (here) the plaintiffs, the
record indicates a disputed issue of fact. I do not see how, for
that purpose, one can ignore the finding, similar to a probable
cause finding, of a Puerto Rico judge, coupled with undisputed
facts strongly indicating that Francisco was both mentally
unbalanced and dangerous to others the criteria for
involuntary admission. From these facts a reasonable jury could
infer that he would likely have been committed for several weeks
or more, thus preventing any attack on Celso.

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detain Francisco and the stabbing. They also insist that it is

too speculative, on this record, to know whether Francisco would

have been confined or treated so as not to have injured Celso

when he did.

The time factor is hardly significant here. Two weeks

is not a lengthy interval for present purposes; it is less than

the thirty days which the court could have initially ordered him

confined had the court determined, after psychiatric examination,

that he was dangerous. "[W]here it is evident that the influence

of the actor's negligence is still a substantial factor, mere

lapse of time, no matter how long, is not sufficient to prevent

it from being the legal cause of the other's harm." Restatement

(Second) of Torts, 433(c) cmt. f (1965). The damage from the

collapse of a defective bridge is no less caused by the builder's

negligence even though occurring months or years after

construction.

As for the argument that it is too speculative whether

Francisco would have been confined, I think, for reasons already

discussed, that the present record is sufficient to raise a

factual issue concerning his likely commitment that makes summary

judgment inappropriate. The evidence of Francisco's mental

instability and dangerousness is uncontested making it probable

that he would have been committed. The Puerto Rico judge had

already found that Francisco was a likely candidate for

involuntary commitment a preliminary finding, to be sure, but

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indicative of a factual issue in that judge's mind as to the need

to commit him.

There is, in addition, the affidavit of a psychologist

which, if accepted, would lend even further support to the

probability of his commitment. Unfortunately, as the district

court and my colleagues note, the affidavit is poorly drafted.

The affidavit says only that it is the psychologist's

"understanding" that Francisco has a serious personality

disorder. It does say, however, that the psychologist is "of the

opinion that Mr. Francisco Rodr guez-Cirilo's being temporarily

detained on March 17, 1994 for the purpose [of] an examination

and evaluation of his mental condition . . . would have resulted

in Francisco Rodr guez-Cirilo's receipt of timely and effective

psychological and/or psychiatric treatment, most likely on an in

patient basis over an extended period of time," (emphasis

supplied) and expresses the opinion that such treatment would

have prevented Francisco's later stabbing of Cirilo.

Given, in any case, the other uncontested factual

evidence mentioned above plainly indicating Francisco's

abnormality and dangerousness, I cannot doubt that a factual

issue exists over whether Francisco would have been confined and,

if so, rendered unable to have committed the assault in dispute.

The very finding by the Puerto Rico court of reasonable grounds

to believe that Francisco was subject to involuntary commitment

suggests the existence of such a triable issue. The existence of

such an issue is the only question at the present stage. We are

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not now acting as factfinders. Summary judgment is not a

substitute for trial. The credible evidence here all shows that

Francisco was suffering from mental instability, having been

previously hospitalized and having uttered credible threats,

later carried out, to stab someone to death. Hence even

excluding the affidavit, the record provides a factual basis for

a finding that, if detained as ordered for psychiatric

examination, Francisco would, more likely than not, have been

involuntarily admitted to a mental health facility, thereby

preventing the later stabbing. The police officers' failure to

detain Francisco could thus reasonably be found to have been a

"substantial factor" in producing Celso's injuries.

II. The Due Process Claim
II. The Due Process Claim

Despite my disagreement with the majority on causation,

I concur in the result because, like the district court, I do not

believe that the plaintiffs have stated a violation of the Due

Process Clause of the federal constitution.8

Plaintiffs' due process claim does not rest, of course,

on any contention that the police or other agents of the state

attacked or physically harmed Celso. This case is not about

violence committed by agents of the state. Rather, Plaintiffs'

claim concerns the all too common situation where violence

inflicted by a third party might have been prevented had the

8 The Fourteenth Amendment states, in relevant part, "[N]or
shall any State deprive any person of life, liberty, or property,
without due process of law . . . ."

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police or other public officials acted more diligently. But

while police default may be found to have caused Celso to lose

the protection of a state statutory scheme designed to guard the

public against people having Francisco's potential for violence,

this unfortunate failure does not violate the federal

constitution. As the Supreme Court wrote:

But nothing in the language of the Due
Process Clause itself requires the State
to protect the life, liberty, and
property of its citizens against invasion
by private actors. The Clause is phrased
as a limitation on the State's power to
act, not as a guarantee of certain
minimal levels of safety and security.
It forbids the State itself to deprive
individuals of life, liberty, or property
without "due process of law," but its
language cannot fairly be extended to
impose an affirmative obligation on the
State to ensure that those interests do
not come to harm through other means.

DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189,

195 (1989). See also Estate of Gilmore v. Buckley, 787 F.2d 714

(1st Cir.) (holding that a county was not liable under the Due

Process Clause for the death of a woman murdered by a prison

inmate while he was on a furlough release, even though the county

had reason to know that the victim was in special danger from the

murderer), cert. denied, 479 U.S. 882 (1986).

Nor does the fact that the police violated the plain

order of a Puerto Rico court to detain Francisco and bring him to

a psychiatrist for examination change the analysis. Police

officers certainly have a duty to obey court orders. But the

court did not, in ordering Francisco's detention, thereby create

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the sort of "special relationship" between the state and all of

Francisco's potential victims that might make the state liable

for any harm that came to them at Francisco's hands. See

generally DeShaney, 489 U.S. at 198-203 (discussing the "special

relationship" test). Neither did the state render Celso more

vulnerable to the danger posed by Francisco. See id. at 201. By

failing to detain him for examination, the defendants merely

failed to reduce a danger not of the state's own making

that Francisco's violent proclivities already created.

The police officers in this case may have acted

improperly. Faced with a court order to detain Francisco, they

should not have substituted their judgment for the court's and

refused to detain him in violation of the court's order. As

discussed above, a jury could reasonably find that their wrongful

failure to enforce the court's order was a substantial factor in

causing Celso's injury by Francisco. Their default might

constitute a tort under state law. See Restatement (Second) of

Torts 323 (1965) (stating that one who undertakes to render

services to another may be liable for performing negligently).

But "the Due Process Clause of the Fourteenth Amendment

. . . does not transform every tort committed by a state actor

into a constitutional violation." DeShaney, 489 U.S. at 202. If

the defendants' conduct here violated the Due Process Clause,

then many everyday defaults of police, firefighters, and other

public officials around the nation would likewise violate the

Constitution on a similar theory. It will be unfortunate, I

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believe, if, instead of relying on state legislatures and state

courts to provide legal means to redress matters of this nature,

federal courts transform conduct that is at most tortious into

constitutional causes of action.

I would affirm the decision of the district court

because the plaintiffs have no cause of action under 42 U.S.C.

1983 and the Due Process Clause.

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