Cruz-Erazo v. Rivera-Montanez

United States Court of Appeals
For the First Circuit
____________________

No. 99-1675

MARITZA CRUZ-ERAZO; JUAN R. GASCOT-VAZQUEZ;
CONJUGAL PARTNERSHIP GASCOT-CRUZ;
KORAL GASCOT-CRUZ; JUAN R. GASCOT-CRUZ;
KASSANDRA JAANAI GASCOT-CRUZ;

Plaintiffs, Appellants,

v.

CARLOS JAVIER RIVERA-MONTAÑEZ, MEMBER OF THE
PR POLICE FORCE IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; CARI RUIZ-MCANALLEN, MEMBER OF THE PR
POLICE FORCE IN HER INDIVIDUAL AND OFFICIAL CAPACITY;
CONJUGAL PARTNERSHIP RIVERA RUIZ, MEMBERS OF THE
PR POLICE FORCE IN THEIR INDIVIDUAL AND OFFICIAL
CAPACITIES; HUMBERTO THILLET-GUZMAN, CAPTAIN,
MEMBER OF THE PR POLICE FORCE IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; HECTOR QUIÑONES, LIEUTENANT,
MEMBER OF THE PR POLICE FORCE IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; HECTOR MORALES-SILVA, MEMBER
OF THE PR POLICE FORCE IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; JOHN DOE, 97CV1758; RICHARD ROE, 97CV1758;

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,
 and Lipez, Circuit Judge.

_____________________

Jane Becker Whitaker, with whom Troncoso & Becker was on brief,
for appellants.
Sylvia Roger Stefani, Assistant Solicitor General, Department of
Justice, with whom Gustavo A. Gelpí, Solicitor General, and Edda
Serrano-Blasini, Deputy Solicitor General, were on brief, for appellees
Héctor Quiñones and Héctor Morales.

____________________

May 2, 2000
____________________

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 TORRUELLA, Chief Judge. Appellants Maritza Cruz-Erazo, Juan

R. Gascot-Vázquez, Koral Gascot-Cruz, Juan R. Gascot-Cruz, and

Kassandra Jaanai Gascot-Cruz allege that appellees police officers

Carlos Javier Rivera-Montañez, Cari Ruiz-Mcanallen, Humberto Thillet-

Guzmán, Héctor Quiñones, Héctor Morales-Silva, and John Doe, in their

individual and official capacities, engaged in ongoing harassment and

intimidation of appellants in violation of their rights to due process

of law. The district court dismissed the complaint on the ground that

appellants had failed to state a claim under 42 U.S.C. § 1983.

Although we find appellees' alleged conduct disgraceful, it does not

sufficiently "shock the conscience" so as to state a claim under §

1983. Because this is the only argument advanced on appeal, we affirm

the decision of the district court.

I. FACTS

The following is a summary of the facts alleged in

appellants' complaint, presented in the light most favorable to the

appellants. Our summary largely tracks that of the district court.

See Cruz-Erazo v. Rivera-Montañez, Civ. No. 97-1758, slip op. at 3

(D.P.R. Mar. 31, 1999) (hereinafter "Opinion").

On September 3, 1995, appellant Cruz-Erazo was approached by

appellees Ruiz-Mcanallen and her husband Rivera-Montañez. Stating that

they were concerned about the oncoming Hurricane Luis, Ruiz-Mcanallen

and Rivera-Montañez asked Cruz-Erazo whether they could store some

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personal property at an unoccupied house owned by Cruz-Erazo and her

husband, appellant Gascot-Vázquez. Cruz-Erazo agreed and gave Ruiz-

Mcanallen and Rivera-Montañez a key to the house, which was located on

San Gregorio Street in San Juan, Puerto Rico.

For approximately four months following Hurricane Luis, Cruz-

Erazo tried on several occasions to retrieve the key to the house from

appellees, without success. She eventually learned that Ruiz-Mcanallen

and Rivera-Montañez were not merely storing items at the house but

actually residing there with a third person. When Cruz-Erazo went to

the house to confront appellees, Ruiz-Mcanallen told her that if she

"did not like the situation[,] she could call the police, but Officer

Rivera[-Montañez] told her to remember that he was a member of the

force."

Cruz-Erazo sought the assistance of a local district

attorney, who advised her to file a complaint for damages. However,

when she went to the police station, the officers there refused to

accept the complaint when they learned that it was against fellow

police officers.

Cruz-Erazo next sought the advice of a local judge, who

informed her that nothing prevented her, as the legitimate owner of the

house, from retaking possession and changing the locks, etc. When

Cruz-Erazo then returned to the district attorney's office, she was

told that the office would not involve itself in civil matters and that

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she should retain counsel to help her resolve the situation. Cruz-

Erazo then went to another courthouse, where she spoke with a marshal

on duty and with yet another judge, who confirmed that, as rightful

owner of the property, she could lawfully enter the house and change

the locks.

On the morning of January 5, 1996, appellant Cruz-Erazo

called the Bayamón South police precinct and requested that the police

witness her entrance into the house on San Gregorio Street. She was

told that a Sergeant Díaz would meet her at her home. Instead,

however, appellees Thillet-Guzmán and Quiñones, from the Bayamón North

precinct, appeared at appellants' home. This raised suspicions with

Cruz-Erazo, who asked her husband to accompany her to the house and to

bring a camera.

Once at the San Gregorio Street residence, Officers

Thillet-Guzmán and Quiñones refused to accompany Cruz-Erazo into the

house. Cruz-Erazo tried to phone Sergeant Díaz, but she was unable to

reach him and decided to enter the house anyway. Once inside, she

removed some blinds and other items belonging to her and her husband,

and she changed the locks. When Cruz-Erazo and her husband tried to

drive away from the house, appellee Ruiz-Mcanallen and her son stood in

the road to block their way and began to insult and threaten them.

During this exchange, Officer Thillet-Guzmán approached Cruz-Erazo and

told her "this won't end here."

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 That same day Cruz-Erazo received a citation for disturbing

the peace from appellee Rivera-Montañez, apparently in response to the

day's events on San Gregorio Street. Cruz-Erazo and her husband also

filed a complaint against Ruiz-Mcanallen's son for disturbing the

peace, but no action was ever taken on it.

Two days later, on January 7, 1996, appellants were informed

that the new locks on the San Gregorio Street house had been broken.

Cruz-Erazo drove to the house and photographed the broken padlocks and

then proceeded to the police station to file a complaint for burglary.

Once there, she was told by a supervising officer that her complaint

could not be accepted "because that house belongs to Officer Carlos J.

Rivera Montañez." Cruz-Erazo was then informed that an assistant

district attorney had apparently ordered that the locks be broken to

return possession of the house to Rivera-Montañez. When Cruz-Erazo

went to the district attorney's office to file a complaint, she was

ordered to leave the office. Cruz-Erazo then went to the Bayamón South

precinct, where she waited for several hours before she was informed

that charges of burglary and disturbing the peace had been filed

against her for entering the San Gregorio Street residence.

On February 1, 1996, Cruz-Erazo was informed by a neighbor

that there was a strange car parked in front of the San Gregorio Street

residence and that the porch door was open. Cruz-Erazo called 911 and

accompanied the responding officers to the house. While the officers

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were inspecting the property, appellee Ruiz-Mcanallen and her son

arrived. Ruiz-Mcanallen claimed that she was renting the house, but

when pressed for the name of the person to whom she paid rent, she told

Cruz-Erazo to talk to Officer Quiñones if she wanted to collect rent.

The following day an individual claiming to be an off-duty

police officer arrived at Cruz-Erazo's home and ordered her to appear

in the Bayamón North precinct (without giving more reasons). She

refused.

During the following weeks, appellants allege that they

suffered continuing harassment by appellees. They received a number of

threatening phone calls, many of which threatened physical violence

against Cruz-Erazo. Patrol cars passed the house frequently, at least

once a night, and on one occasion Officer Rivera-Montañez appeared at

the door and threateningly asked Gascot-Vázquez if his daughter was

"the light of his life." At one point, Cruz-Erazo went to the FBI in

search of assistance, and a call from an agent to the local police

succeeded in temporarily halting the harassment.

On February 14, 1996, appellee Morales-Silva served Cruz-

Erazo with a citation to appear in court on February 20, 1996 to face

the burglary charges against her.

On February 19, 1996, appellee Rivera-Montañez was served

with notice of an eviction action initiated against him by Cruz-Erazo

and Gascot-Vázquez. Rivera-Montañez called Cruz-Erazo at home and

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threatened that "she would pay for having him served." The next day,

February 20, 1996, Officer Rivera-Montañez appeared at Cruz-Erazo's

home and insulted her and "called into question her honor." Although

Cruz-Erazo ignored his comments and went inside, her pregnant daughter,

Koral Gascot-Cruz objected to Rivera-Montañez's comments and asked him

to leave. The officer insulted her and pushed her out of the way as he

left. Appellants allege that "two days later, Mrs. Gascot Cruz lost

her baby, apparently because the placenta was detached from the womb."

The eviction suit was heard that same day and resolved in favor of

Cruz-Erazo and Gascot-Vázquez.

Also on February 20, 1996, Cruz-Erazo appeared at the Bayamón

courthouse to face the burglary charges against her. She was told that

the judge was at lunch, and she left the courthouse for a short period.

In her absence, the judge heard testimony from Officers Rivera-Montañez

and Ruiz-Mcanallen and received sworn statements from Officers

Thillet-Guzmán and Quiñones. On the basis of such evidence, and

without hearing from Cruz-Erazo, the judge ordered her arrest and

posted bail at $50,000. When Cruz-Erazo was informed of this, she

initially refused to post bail, but she reconsidered when a friend

overheard appellee Officer Morales-Silva on the telephone saying that

they had finally gotten "the troublemaker" and suggesting that she

would be murdered on her way to the jail. Cruz-Erazo was booked and

fingerprinted, although at least one officer assigned to the task

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refused to fingerprint her, saying that he did not want to participate

in such a miscarriage of justice.

A preliminary hearing was held in the burglary action on May

14, 1996. Officer Thillet-Guzmán testified that he had seen Cruz-Erazo

remove property from the San Gregorio Street residence, although he did

not explain why he did not arrest her if he considered it a burglary in

progress. Officer Rivera-Montañez also testified, but he was unable to

provide any evidence whatsoever of a right to occupy the San Gregorio

Street house. When the court asked Rivera-Montañez why he should be

believed, he responded simply that he was a police officer and that the

police always tell the truth. Cruz-Erazo presented substantial

evidence that she and her husband owned the property, including the

deed and an appraisal, and the judge ordered the burglary charges

dismissed.

After this ordeal, appellants moved for a time to South

Carolina, but they eventually returned to Puerto Rico and filed this

action. Since their return, appellants allege that appellees Rivera-

Montañez and Ruiz-Mcanallen have intentionally driven past their home,

possibly as an attempt to intimidate appellants.

II. PROCEDURAL HISTORY

Appellants' complaint, brought pursuant to 42 U.S.C. § 1983,

asserted two causes of action. The first claimed that appellees had

violated appellants' "Fourteenth Amendment right to due process when

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they deliberately lied in official documents and perjured themselves in

official court proceedings with the intention of causing plaintiffs

harm." The second cause of action stated a claim under the Civil Code

and Constitution of Puerto Rico, essentially for malicious prosecution.

Appellees Morales-Silva, Quiñones, and Thillet-Guzmán moved

for dismissal under Federal Rule of Civil Procedure 12(b)(6), claiming

that appellants had failed to "prove" a claim under § 1983, that they

were entitled to qualified immunity, and that the action was barred by

the Eleventh Amendment. Although the court noted that appellees had

not explicitly argued that the complaint failed to state a cause of

action (as opposed to proving a claim), it nevertheless accepted the

appellees' position and dismissed the complaint as against all

defendants.1

The district court first stated that appellants' complaint

could be construed as presenting a claim under the Fourteenth Amendment

for malicious prosecution. The court rejected such claim, however,

correctly noting that "[t]here is no substantive due process right

under the Fourteenth Amendment to be free from malicious prosecution."

Opinion at 7 (citing Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d

1 Oddly enough, appellees Rivera-Montañez and Ruiz-Mcanallen have filed
no documents with this Court, nor has any counsel made an appearance on
their behalf (nor does the Appendix filed on appeal bear any indication
of their participation before the trial court). However, because we
affirm the district court's determination that appellants have failed
to state a claim, the nonparticipation of appellees Rivera-Montañez and
Ruiz-Mcanallen makes no difference to our consideration of the case.

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249, 256 (1st Cir. 1996)). The court noted that a constitutional

malicious prosecution claim might arise under the Fourth Amendment, but

held that such a Fourth Amendment claim had not been raised by

appellants. See id. (citing Meehan v. Town of Plymouth, 167 F.3d 85,

88 (1st Cir. 1999)).

The court then proceeded to a more general § 1983 analysis.

The court found that appellants had not alleged sufficient causation

between appellant Gascot-Cruz's miscarriage and the appellees' alleged

actions. The court also found that the other allegations of

intimidation and harassment did not rise to the level of a

constitutional deprivation actionable under § 1983, because they did

not "amount to a deprivation of [appellants'] liberty interest" nor

"rise to a level of intrusion that would 'shock the conscience.'" See

id. at 11. The court therefore dismissed appellants' federal claims,

as well as their supplemental state law claims. Appellants timely

appealed, and we now affirm the decision of the district court.

III. LAW AND APPLICATION

We review the district court's dismissal for failure to state

a claim de novo. See, e.g., Souza v. Pina, 53 F.3d 423, 424 (1st Cir.

1995). The question before us is whether, when viewing the allegations

in appellants' complaint in the light most favorable to appellants,

their complaint states a claim under 42 U.S.C. § 1983. As is well

established, § 1983 creates no independent substantive rights, but

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rather provides a cause of action by which individuals may seek money

damages for governmental violations of rights protected by federal law.

See, e.g., Albright v. Oliver, 510 U.S. 266, 811 (1994). Hence the

requirement that, to state a claim under § 1983, a plaintiff must

allege (1) the violation of a right protected by the Constitution or

laws of the United States and (2) that the perpetrator of the violation

was acting under color of law. See, e.g., Pittsley v. Warish, 927 F.2d

3, 6 (1st Cir. 1991) (citing Parratt v. Taylor, 451 U.S. 527, 535

(1981)).

Appellants' complaint alleges that "Defendants violated

Plaintiffs' Fourteenth Amendment right to due process of law when they

deliberately lied in official documents and perjured themselves in

official court proceedings with the intention of causing Plaintiffs

harm." Counsel clarified at oral argument that appellants' claim is

that their substantive (rather than procedural) due process rights were

violated.2 As we have previously stated:

There are two theories under which a plaintiff
may bring a substantive due process claim. Under
the first, a plaintiff must demonstrate a

2 Although the district court mentioned the possibility of a Fourth
Amendment claim on the facts alleged in the complaint, and although
this possibility was raised by the Court at oral argument, we need not
venture into this subject because the appellants failed to raise any
Fourth Amendment theory of recovery before the district court or in
their brief on appeal, and have therefore waived any such claim. See,
e.g., Rivera-Gómez, 843 F.2d 631, 635 (1st Cir. 1988) ("[A] litigant
has an obligation 'to spell out its arguments squarely and distinctly'
or else forever hold its peace." (citation omitted)).

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 deprivation of an identified liberty or property
interest protected by the Fourteenth Amendment.
Under the second, a plaintiff is not required to
prove the deprivation of a specific liberty or
property interest, but, rather, he must prove
that the state's conduct "shocks the conscience."

Brown v. Hot, Sexy & Safer Productions, Inc., 68 F.3d 525, 531 (1st

Cir. 1995) (citations omitted); see Pittsley, 927 F.3d at 6. Because

appellants have not specified any particular constitutionally protected

interest of which they were deprived by appellees' actions,3 we will

follow the parties' lead and focus our inquiry on the second theory.

We have used various phrases to describe when state action

"shocks the conscience" in the context of substantive due process.

It has been said, for instance, that substantive
due process protects individuals against state
actions which are "arbitrary and capricious," or
those that run counter to "the concept of ordered
liberty," or those which, in context, appear
"shocking or violative of universal standards of
decency."

Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir. 1990) (citations

omitted). We have insisted that "before a constitutional infringement

3 As the Court mentioned at oral argument, the facts alleged in the
complaint might appear to support an argument that appellants were
deprived of a property interest, insofar as Ruiz-Mcanallen and Rivera-
Montañez took possession of the San Gregorio Street residence and
retained such possession with the aid of other appellees. However,
here again, appellants have entirely failed to articulate such a claim.
This "property interest" theory was not raised by the appellants in
their memoranda before the district court nor in their briefs submitted
to this Court; we think neither court is obliged to dream up and
articulate appellants' arguments for them. See Rivera-Gómez, 843 F.2d
at 635 (cited in footnote 2, supra).

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occurs, state action must in and of itself be egregiously unacceptable,

outrageous, or conscience-shocking," id. at 754, and noted the Supreme

Court's admonition that "the activities complained of must 'do more

than offend some fastidious squeamishness or private sentimentalism,'"

Pittsley, 927 F.2d at 7 (quoting Rochin v. California, 342 U.S. 165,

172 (1952)). Although the cases in which we have found governmental

conduct to shock the conscience have often involved state action that

was highly physically intrusive, see Hot, Sexy & Safer Productions, 68

F.3d at 531 (and cases cited therein), we have pointedly left open the

possibility that verbal or other less physical harassment such as that

alleged by appellants might rise to a conscience-shocking level, see

id. at 532; Souza v. Pina, 53 F.3d 423, 427 (1st Cir. 1995); Pittsley,

927 F.2d at 7 n.3.

The question now before the Court is whether the particular

conduct alleged by appellants in this case was so egregious that it can

properly be said, under these circumstances, to shock the conscience.

We find the question to be a close one,4 as the alleged facts seem to

fall in between the extremes of conduct which have previously been

found to shock or not to shock the judicial conscience. See County of

4 We might add that our task is made more difficult by the substandard
legal memoranda filed before this Court and the district court.
Appellants' briefs are long on rhetoric but woefully short on legal
substance. Although appellants allege an ongoing scheme of disgraceful
conduct by appellees, the Court has been left largely to its own
devices to try and connect these factual allegations to any viable
legal theory of recovery.

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Sacramento v. Lewis, 523 U.S. 883, 848 (1998) ("[T]he constitutional

concept of conscience-shocking . . . points clearly away from

liability, or clearly toward it, only at the ends of the tort law's

spectrum of culpability."). For instance, conscience-shocking state

action has been found where a suspect's stomach was forcibly pumped to

obtain evidence, see Rochin v. California, 342 U.S. 165 (1952), and

where a suspended police officer was required to undergo a penile

plethysmograph as a condition of reinstatement, see Harrington v. Almy,

977 F.2d 37, 43-44 (1st Cir. 1992). On the other hand, we have found

no constitutional violation where public school students were required

to attend a sexually explicit AIDS awareness assembly, see Hot, Sexy

and Safer Productions, 68 F.3d at 532, or where an inmate was injured

after slipping on a pillow negligently left in a stairwell by a deputy

sheriff, see Daniels v. Williams, 474 U.S. 327 (1986).

Some cases, of course, have addressed the hazier middle

ground, such as Souza v. Pina, 53 F.3d 423 (1st Cir. 1995), in which we

found no due process violation when a murder suspect committed suicide

after prosecutors encouraged the media to link him to a series of

murders. While we lamented the conduct of the prosecutors in that

case, we held that the facts alleged simply did not rise to the level

of conscience-shocking conduct. See id. at 427. In another case,

Grendell v. Gilway, 974 F. Supp. 46 (D. Me. 1997), the district court

found that the behavior of the police "shocked the conscience" when an

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officer lied to and threatened an eleven-year-old girl in order to

extract incriminating information about the suspected drug use of her

parents. The court noted our decisions in Souza and Pittsley and

determined that, although we had never found a constitutional violation

under similar circumstances, neither had we foreclosed the possibility

that verbal harassment and intimidation could violate due process. See

id. at 51. Emphasizing that the officer's behavior struck at "the

basic fabric of all parent-child relations: love, trust, and faith,"

the district court determined that the alleged misconduct, if proven,

would violate a right protected by the Due Process Clause. See id. at

52.

Perhaps the case with facts most similar to those alleged by

plaintiffs is Pittsley v. Warish, 927 F.2d 3 (1st Cir. 1991). In that

case, the defendant police officers allegedly threatened to kill Ms.

Pittsley on more than one occasion, told Ms. Pittsley's four- and ten-

year-old children that if the police caught their father the children

would never see him again, and also refused to allow the children to

give the father a goodbye hug when he was arrested. Although the Court

refused to condone such "despicable and wrongful" harassment, it held

that the conduct did not rise to the level of a constitutional

violation. See id. at 7.

Although each determination of whether state conduct "shocks

the conscience" is necessarily fact-specific and unique to the

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particular circumstances in which the conduct occurred, we think that

our precedents steer us toward the conclusion that appellants have

failed to articulate a claim under the Fourteenth Amendment. The

majority of the conduct alleged by appellants was not physically

intrusive or violent, nor did it "strike at the basic fabric" of any

protected relationship, such as the parent-child relationship in

Grendell. In fact, we find appellants' allegations largely comparable

to those presented in Pittsley, and appellants have offered us no basis

whatsoever for finding that precedent distinguishable, nor have they

offered any substantive argument or explanation to justify the unusual

step of finding a violation of substantive due process. As in previous

decisions, we expressly leave open the question of whether verbal

harassment and intimidation of this general type might, under

appropriate circumstances, be found to violate due process. We simply

hold that appellants have failed to state such a claim in this case.

Given our conclusion that the conduct alleged by appellants

does not sufficiently shock the conscience so as to violate substantive

due process, we need not reach the question of whether such conduct was

"under color of law." Nor do we reach the appellees' assertion of

qualified immunity, although we note that the defense seems, at least

at first glance, inappropriate in a case such as this where the conduct

is alleged to be an intentional abuse of official power. We also agree

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with the district court that, absent a federal claim, appellants' state

law claims are properly left for the consideration of the local courts.5

IV. CONCLUSION

For the reasons set forth above, we affirm the district

court's dismissal of appellants' complaint for failure to state a claim

for which relief could be granted.

Affirmed.

5 We are not deaf to appellants' counsel's plea that the conduct
alleged in this case warrants some form of judicial reprimand. Today
we hold only that the alleged conduct does not sufficiently "shock the
conscience" so as to violate substantive due process. Because this is
the only argument that appellants have advanced on appeal, we affirm
the order of the district court. However, counsel offered at argument
that, in the event of an unsuccessful appeal, appellants "can and will"
proceed with their case in the local courts. We do not suggest that
appellants have no viable claims under state law (or perhaps even under
the Fourth Amendment), and we trust that the local courts will ably
judge those claims if they are, in fact, brought.

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