Rivera-Corraliza v. Puig-Morales

United States Court of Appeals
For the First Circuit

No. 13-2138

PABLO JAVIER RIVERA-CORRALIZA, on his own behalf and as
President of PJ ENTERTAINMENT, INC.; CARLOS CRUZ-ALVERIO; JAIME
RODRÍGUEZ-VEGA; ELLIS LINFERNAL-CRUZ, on his own behalf and as
President of the ASOCIACIÓN DE OPERADORES DE MÁQUINAS DE
ENTRETENIMIENTO DE ADULTOS DEL OESTE, INC.; RICARDO HERNÁNDEZ-
ECHEVESTRE on his own behalf and as President of RICARDO'S
ENTERTAINMENT CORP.,

Plaintiffs, Appellants,

v.

JUAN CARLOS PUIG-MORALES; AILEEN DE LEÓN-GARCÍA; VÍCTOR R.
PÉREZ-PILLOT; ZULMA I. RIVERA-GÓMEZ; DAVID CARABALLO-MALDONADO;
MARÍA C. MEDINA-ORTIZ; ABIMAEL RODRÍGUEZ-LÓPEZ; ALFREDO E.
PÉREZ-RIVERA; HÉCTOR O. GADEA-RIVERA; RAFAEL A. DIEZ DE ANDINO;
MILTON VESCOVACCI-NAZARIO; MARISOL FLORES-CORTÉS; JOHN DOE I-XX,
all in their personal capacities,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
 Christian J. Francis-Martinez, with whom José J. Gueits-Ortiz
and Francis & Gueits Law Offices, PSC, were on brief, for
appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Margarita L. Mercado-Echegaray,
Solicitor General, was on brief, for appellees.

July 22, 2015
 THOMPSON, Circuit Judge.

Overview

Ticked off that agents of the Puerto Rico Treasury

Department had seized their "adult entertainment machines"

("AEMs," to save keystrokes), today's plaintiffs sued the

supposedly responsible parties for damages under 42 U.S.C. § 1983,

alleging (as relevant here) violations of the First, Fourth, and

Fourteenth Amendments as well as several commonwealth laws. The

district court granted defendants summary judgment on the federal

claims and dismissed the commonwealth claims without prejudice.

And plaintiffs are now here asking us to undo the court's ruling.

Agreeing with some of what they say, we vacate in part, affirm in

part, and remand for further proceedings. We will explain our

thinking shortly. First, the facts, which we present in the light

most favorable to plaintiffs (the summary-judgment losers),

drawing all supportable inferences in their favor. See, e.g.,

Soto-Padró v. Pub. Bldgs. Auth., 675 F.3d 1, 2, 5 (1st Cir. 2012).

Background

Games People Play

Plaintiffs hold licenses from the Puerto Rico Treasury

Department ("Treasury," for short) authorizing them to own and

operate AEMs. Plaintiffs are also members of "EMPRECOM," a
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business association of AEM owners.1 AEMs are nothing more than

coin-operated arcade-game-like machines found in small businesses

(liquor stores, gas stations, etc.) that are not supposed to award

cash prizes (winners get bonus games) — which makes AEM games

different from gambling machine games (more on this later).2 But

unscrupulous owners (we are told) occasionally convert AEMs into

illegal gambling machines (say, for instance, slot machines),

which is a major worry for Treasury.

According to plaintiffs (whose account we accept for

purposes of summary-judgment review), here is how the suit arose:

Sometime in early 2009 — possibly in February or March

(the record is not exactly clear) — plaintiff Pablo Javier Rivera-

Corraliza (EMPRECOM's president) met with Treasury Secretary (and

defendant) Juan Carlos Puig-Morales, a big backer of a movement to

install video-lottery terminals islandwide; as we understand it,

these terminals are noncasino gaming machines that would connect

to a system designed to collect tax revenue. Anyway, the two had

a friendly conversation about issues affecting AEMs. They, for

example, touched on a bill pending in the Puerto Rico legislature

1 EMPRECOM is the Spanish acronym for the "Puerto Rican Commercial
Recreation Business."
2 See generally Sun Design Video v. Puerto Rico, 136 P.R. Dec. 763
(1994) (certified English translation, slip op. at 11-18)
(discussing the differences).
- 4 -
that would require that all AEMs connect to a central system at

Treasury for monitoring purposes. And they talked about Puig-

Morales's desire to go after AEM operators holding forged licenses

— something EMPRECOM applauded.

But Puig-Morales was anything but friendly at a follow-

up meeting the next month, telling Rivera-Corraliza point blank

that every AEM was "illegal" and had to be "confiscated." Hold

on, said Rivera-Corraliza, Treasury had issued "8,000" AEM permits

yet there are roughly "14,000" AEMs "out on the streets" — just go

after the fake-license holders, he implored Puig-Morales. "We'll

see about that" was Puig-Morales's reply.

Treasury started seizing AEMs around this time. But

none belonged to plaintiffs — Treasury did not start seizing theirs

until February 2010, as we will soon see.

Around the spring of 2009 (the record does not reveal

when) Puig-Morales told plaintiff Jaime Rodríguez-Vega (EMPRECOM's

treasurer) that AEM owners should exchange their machines for the

video-lottery machines of Caribbean Cage, Inc., a company that

specializes in gaming systems. Puig-Morales promised to stop the

seizures if they made the switch to Caribbean Cage's machines.

And Puig-Morales said essentially the same thing to Rivera-

Corraliza, telling him that AEM owners would not have to worry

about seizures if they "signed up" with Caribbean Cage.
- 5 -
 So Rivera-Corraliza inked a deal with Caribbean Cage on

behalf of EMPRECOM (when, we do not know). Under the agreement,

EMPRECOM members were to provide the venues for the video-lottery

terminals. And Caribbean Cage promised to pay any fees EMPRECOM

members might owe Treasury.

In August 2009 Puig-Morales issued a letter of intent to

negotiate with Caribbean Cage about installing video-lottery

terminals islandwide. For this to work, though, EMPRECOM and its

members had to be on board, as Puig-Morales well knew. But

EMPRECOM members became distinctly unhappy when Puig-Morales told

EMPRECOM representatives during that same month that they had to

pay a $2,250 license fee for each video-lottery machine. And when

EMPRECOM members balked, Puig-Morales slammed his hand on a desk

and screamed that they had until the end of the day to resolve the

problem — and if they did not, then all their AEMs would

"disappear." Ultimately (for reasons this record does not

illuminate) the deal between EMPRECOM and Caribbean Cage fell

through and Treasury installed no video-lottery terminals

anywhere.

Shortly after the table-slamming meeting, Puig-Morales

went on a media campaign to trash AEM owners (the record does not

indicate precisely when the offensive started, though). He told

one interviewer, for example, that he "hated" AEMs and favored
- 6 -
installing video-lottery terminals throughout Puerto Rico

(plaintiffs have not told us when he said this). He told another

interviewer that all AEMs were "illegal" (plaintiffs have not told

us when he said that). And he told a third interviewer in February

2010 (finally, a date!) that he was going to "eliminate" the AEM

industry because neither the governor nor the public supported

AEMs. Not willing to take Puig-Morales's attacks lying down,

Rivera-Corraliza also gave interviews to the media in which he

defended AEM owners — though the record evidence plaintiffs point

us to does not say how many interviews he gave and when.

In late 2009 or early 2010 Puig-Morales appointed

defendant Abimael Rodríguez-López head of a special Treasury task

force charged with dealing with AEMs. When Rodríguez-López was

absent, then defendant Alfredo Pérez-Rivera was in charge. Agents

on the task force — like defendant Victor Pérez-Pillot, for example

— took an eight-hour course in how to inspect AEMs for

illegalities. And they went about inspecting AEMs this way

(Treasury had no manuals or guidelines covering how to inspect

AEMs):

Task-force agents identified businesses with AEMs. And

once they got the go-ahead from Rodríguez-López, they would inspect

the AEMs, examining the licenses and then the machines themselves

— even if the licenses checked out. In fact, even if the AEMs'
- 7 -
exterior looked okay, agents would ask the businesses' owners to

unlock the machines, and if the owners refused, agents would break

the locks open — simply on Rodríguez-López's say-so, even without

probable cause or a search warrant.

Defendants Milton Vescovacci-Nazario and Marisol Flores-

Cortés — two outside lawyers Puig-Morales had hired to remind

agents about the dos and don'ts of AEM inspections — signed off on

the lock-breaking protocol around February 2010. And Puig-Morales

signed off on the entire seek-and-find procedure. Another high-

ranking Treasury official — defendant Héctor O. Gadea-Rivera — let

task-force agents conduct inspections as they had been doing before

he came on board on July 1, 2010. And still another — defendant

Rafael Diez de Andino — also signed off on the inspection procedure

when he became a deputy director at Treasury on September 15, 2010,

or so plaintiffs claim.3 But before that, Diez de Andino (who was

at Treasury, though we're not sure what his title was) had a hand

(at least as early as February 2010) in telling agents which

businesses to inspect.

Rivera-Corraliza is not only EMPRECOM's president; he is

also president of PJ Entertainment, Inc., a corporation that owned

AEMs. Early in the morning of February 26, 2010, he got a call

3 We say "claim" because the record citations in their brief say
nothing to support the point.
- 8 -
from the owner of a liquor store — which was then closed — saying

that task-force agents were seizing some of PJ Entertainment's

AEMs without a warrant. The store was not on the list of businesses

to be inspected that day. But Diez de Andino had ordered Pérez-

Pillot to go there.

Rivera-Corraliza got to the scene lickety-split. Just

then, Puig-Morales reached him on his cell phone. "How are the

guys behaving?" Puig-Morales asked. Pérez-Pillot "wants to take

the machines" Rivera-Corraliza explained, to which Puig-Morales

replied, "Good fellow, good fellow" (referring to Pérez-Pillot).

Agents claimed the seized AEMs had "knock-off switches" — i.e.,

devices that make it possible for players to redeem winnings and

for the operators to reset the machines. See 15 L.P.R.A. § 82(3)

(part of the "Games of Chance Act"). A knock-off switch is a

telltale sign of illegal gambling machines. See id. But Rivera-

Corraliza insists that none of his company's AEMs had a device

like that. And when he got to inspect the AEMs months later he

allegedly saw that the games had been changed and that some were

broken.

Over the next few months task-force agents (including

some of the defendants named here) seized more AEMs belonging to

PJ Entertainment as well as AEMs belonging to the remaining

- 9 -
plaintiffs.4 Here is how plaintiffs paint the picture: Agents

inspected AEMs without warrants, sometimes when the stores were

closed. Agents checked out an AEM's interior even if the license

seemed in order, breaking the AEM's lock if the owner refused to

open the machine. Agents then confiscated AEMs, contending that

the machines had been altered to run like illegal gaming machines

— one plaintiff claims that an agent, defendant Aileen de León-

García, told him that she found nothing illegal after looking

inside his AEMs, but defendant Rodríguez-López had ordered her to

take the AEMs anyway for further investigation. And when

plaintiffs later inspected the AEMs, they saw that the machines

had been broken or damaged.5 Puig-Morales told agents to fine only

AEM owners for any illegalities, not the owners of the businesses

housing the AEMs (we will call these "establishment owners" the

4 The exact dates are: May 12, 2010; May 24, 2010; June 29, 2010;
July 22, 2010; August 7, 2010; August 24, 2010; August 27, 2010;
September 27, 2010; and December 2, 2010.
5 The parties agree that "months" after the seizures (the record
does not say exactly when) someone broke into the warehouse holding
plaintiffs' AEMs and damaged or stole the machines' parts.
Defendants suggest that the person who broke into the warehouse —
and not any inspecting agent — bears responsibility for the AEMs'
damage.
- 10 -
rest of the way).6 He also told agents to fine the AEM owners

$5,000 "per machine."

In mid-to-late 2010 plaintiffs or their companies filed

suits in a local court (the Puerto Rico Court of First Instance)

challenging the forfeiture of AEMs. Plaintiffs, however, point us

to nothing in the record indicating how the suits turned out.

Going for Broke

Following these events plaintiffs sued defendants in

Puerto Rico's federal district court for money damages under

section 1983 — the statute that (at the risk of oversimplification)

provides a civil remedy for state action that deprives persons of

federal statutory or constitutional rights. See Klunder v. Brown

Univ., 778 F.3d 24, 30 (1st Cir. 2015). Essentially plaintiffs

accused defendants of violating the Fourth Amendment's search-and-

seizure provisions by doing baseless inspections and

confiscations, infracting the Fourteenth Amendment's due-process

clause by not offering predeprivation hearings, and defying the

Fourteenth Amendment's equal-protection clause by treating them

differently from the establishment owners.7 Rivera-Corraliza —

6 Plaintiffs intimate that AEM owners and establishment owners are
(at least for present purposes) mutually exclusive groups.
7 Plaintiffs also alleged that defendants' actions violated the
Eighth Amendment's excessive-fines clause — yet another claim the
district court dismissed on summary judgment. Plaintiffs have not
- 11 -
and Rivera-Corraliza only — also accused defendants of retaliating

against him for exercising his First Amendment right to free

speech. And plaintiffs all asserted supplemental local-law

claims, which mirrored their federal-law claims.

After some discovery defendants moved for summary

judgment, arguing (among other grounds) that (a) they never

violated any of plaintiffs' constitutional rights — but if they

had offended plaintiffs' search-and-seizure and due-process

rights, they were entitled to qualified immunity — and that

(b) they should get judgment as a matter of law on the state

claims. Plaintiffs opposed. Taking up the motion, the district

court ruled, relevantly, as follows: On the search-and-seizure

claim, the court found defendants' actions constitutional — under

the administrative-search exception to the warrant requirement —

and even if not, defendants were qualifiedly immune because they

violated no bright-line rule. And, the court added, given the

commonwealth's need to act quickly to protect the public from

apparently illegal AEMs, the postdeprivation remedies offered

satisfied the minimal requirements of due process. Plaintiffs'

equal-protection claim misfired, the court said, because AEM

owners and establishment owners are not similarly situated. As

argued that the court got that ruling wrong. So we say no more
about it.
- 12 -
for Rivera-Corraliza's speech-retaliation claim, the court found

he had failed to show how his talking to the press substantially

motivated defendants to act as they did. So the court granted

defendants summary judgment on the federal-law claims and then

relinquished jurisdiction over the local-law claims.

Which brings us to today, with plaintiffs asking us to

vacate the district court's judgment and remand for a trial on all

claims.

Important Concepts to Keep in Mind

Before tackling plaintiffs' arguments, we make a few

preliminary comments:

Summary-Judgment Basics

As always, we give fresh review to the district court's

summary-judgment ruling, affirming if "there is no genuine dispute

as to any material fact" — even after giving plaintiffs the benefit

of all reasonable inferences in the record — and defendants are

"entitled to judgment as a matter of law." See Fed. R. Civ. P.

56(a); see also Morelli v. Webster, 552 F.3d 12, 18 (1st Cir.

2009). And we may affirm a summary judgment on any ground

supported by the record, even one not relied on by the court below.

See, e.g., Geshke v. Crocs, Inc., 740 F.3d 74, 76-77 (1st Cir.

2014); Boveri v. Town of Saugus, 113 F.3d 4, 6 (1st Cir. 1997).

Qualified-Immunity Basics
- 13 -
 The qualified-immunity defense is in play on two claims,

don't forget — the search-and-seizure claim and the due-process

claim. And to overcome that defense plaintiffs must make a two-

step showing — that (a) defendants violated a statutory or

constitutional right and that (b) the right was clearly established

at the time. See, e.g., City & Cnty. of S.F. v. Sheehan, 135 S.

Ct. 1765, 1774 (2015); McGrath v. Tavares, 757 F.3d 20, 29 (1st

Cir. 2014). The clearly-established step requires plaintiffs to

identify "'controlling authority' or a 'robust consensus'" of

"'persuasive authority'" such that any reasonable official in the

defendant's position would have known that the challenged conduct

is illegal "in the particular circumstances that he or she faced"

— then-existing precedent, in other words, "'must have placed the

statutory or constitutional question . . . beyond debate.'"

Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2083, 2084 (2011)); accord Rocket

Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 9, 10 (1st Cir.

2013). Courts penalize officers for violating "bright lines," not

for making "bad guesses in gray areas." See Maciariello v. Sumner,

973 F.2d 295, 298 (4th Cir. 1992); see also al-Kidd, 131 S. Ct. at

2086-87 (Kennedy, J., concurring) (emphasizing that qualified

immunity applies if defendants have no "'fair and clear warning'

- 14 -
of what the Constitution requires" (quoting United States v.

Lanier, 520 U.S. 259, 271 (1997))).

If plaintiffs stumble at either step — taken in any order

we like, see Pearson v. Callahan, 555 U.S. 223, 236 (2009) — their

search-and-seizure and due-process claims go kaput, see Quintero

de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir. 1992)

(noting that when a defendant invokes qualified immunity, the

burden is on the plaintiff to show the inapplicability of the

defense). Also and importantly, judges are free to jump directly

to — and decide the case exclusively on — the clearly-established

step in certain situations. See Camreta v. Greene, 131 S. Ct.

2020, 2032 (2011). Examples of when judges should follow that

course include: if dealing with the constitutional-violation step

requires "uncertain assumptions about state law" or creates "a

risk of bad decisionmaking" because the briefs are bad; if

discussing both steps risks "bad decisionmaking" because the court

may believe the law is not clearly established and so give little

thought to whether the constitutional right exists; and if the

canon of "constitutional avoidance" counsels against focusing on

the constitutional-violation step because "it is plain that a

constitutional right is not clearly established but far from

obvious whether in fact there is such a right." Pearson, 555 U.S.

223, 237-41 (2009); accord Kerns v. Bader, 663 F.3d 1173, 1180-81
- 15 -
(10th Cir. 2011) (discussing Pearson and Camreta). Reduced to

simplest terms, "courts should think hard, and then think hard

again, before turning small cases into larger ones," see Camreta,

131 S. Ct. at 2032 — sage words, indeed.

Now on to plaintiffs' claims.

Our Take on the Case

Search-and-Seizure Claim

First up is plaintiffs' claim that defendants'

warrantless searches and seizures violated the Fourth Amendment

(applied to Puerto Rico by the Fourteenth). For their part

defendants insist that they are shielded from this claim by

qualified immunity, arguing that they acted pursuant to the

administrative-search exception to the warrant requirement,

meaning they violated no Fourth Amendment right — let alone any

clearly-established Fourth Amendment right.

(a)
Administrative Searches

For anyone unfamiliar with administrative searches,

here's a quick primer:

The Fourth Amendment protects us from "unreasonable

searches and seizures." See U.S. Const. amend. IV. It also says

that "no Warrants shall issue, but upon probable cause." Id.

Reasonableness is the amendment's central command, however, see

- 16 -
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011), with reasonableness

determined by weighing the government's need for the search against

the degree of intrusion into a citizen's privacy interests, see,

e.g., Camara v. Mun. Court of City & Cnty. of S.F., 387 U.S. 523,

536-37 (1967); Ruskai v. Pistole, 775 F.3d 61, 68 (1st Cir. 2014).

This amendment covers searches of homes and commercial

premises, our judicial superiors tell us. See, e.g., City of Los

Angeles v. Patel, No. 13-1175, 2015 WL 2473445, at *7 (U.S. June

22, 2015); New York v. Burger, 482 U.S. 691, 699-700 (1987). And

staying with commercial premises, we know that because the

government has a "heightened" interest in regulating commerce,

persons running commercial premises have a lessened expectation of

privacy. United States v. Maldonado, 356 F.3d 130, 134-35 (1st

Cir. 2004) (citing Burger, 482 U.S. at 700). Yet even when a

search is done to enforce a regulatory scheme, a warrant is often

required — though in that situation, the "probable cause" of which

the Fourth Amendment speaks can be something less than probable

cause to believe the law is being violated. See, e.g., Marshall

v. Barlow's, Inc., 436 U.S. 307, 320 (1978) (explaining that for

administrative-search purposes, "probable cause justifying the

issuance of a warrant may be based . . . on a showing that

'reasonable legislative or administrative standards for conducting

an . . . inspection are satisfied with respect to a particular
- 17 -
[establishment]'" (second and third alterations in original)

(quoting Camara, 387 U.S. at 538)).

But because "reasonableness" is the standard, the

Supreme Court has approved certain exceptions to the Fourth

Amendment's warrant and probable-cause requirements in compelling

situations. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403

(2006); Burger, 482 U.S. at 702. One is for searches of

pervasively-regulated businesses. The idea is that "when an

entrepreneur embarks upon such a business, he has voluntarily

chosen to subject himself to a full arsenal of governmental

regulation," and thus a warrantless search to enforce that

regulatory regime is not unreasonable. Marshall, 436 U.S. at 313.8

Searches of this sort can affect an infinite number of people and

places, obviously. So to stop inspectors from running amok,

several things are critical. The first is that the government

8 See also New York v. Burger, 482 U.S. 691 (1987) (automobile
junkyard); Donovan v. Dewey, 452 U.S. 594 (1981) (coal mine);
United States v. Biswell, 406 U.S. 311 (1972) (gun dealer);
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)
(liquor dealer); United States v. Gonsalves, 435 F.3d 64 (1st Cir.
2006) (drug storage); United States v. Maldonado, 356 F.3d 130
(1st Cir. 2004) (interstate commercial trucking); Blue v. Koren,
72 F.3d 1075 (2d Cir. 1995) (nursing homes); Lesser v. Espy, 34
F.3d 1301 (7th Cir. 1994) (rabbitry); United States v. Chuang, 897
F.2d 646 (2d Cir. 1990) (banking); Shoemaker v. Handel, 795 F.2d
1136 (3d Cir. 1986) (horse racing); Rush v. Obledo, 756 F.2d 713
(9th Cir. 1985) (daycare facilities); Pollard v. Cockrell, 578
F.2d 1002 (5th Cir. 1978) (massage parlors).
- 18 -
have a substantial interest in regulating the business. The next

is that warrantless inspections further this interest. And the

third is that the regulations offer "a constitutionally adequate

substitute for a warrant" by giving notice to those regulated and

limiting the inspectors' discretion in "time, place, and scope."

Burger, 482 U.S. at 703 (internal quotation marks omitted).

Collectively, these factors — a pervasively-regulated business, a

substantial government interest in regulating the business,

administrative searches that advance this interest, and a

regulatory scheme that prescribes alternative safeguards — make up

what we call the Burger test.9

Judges must never forget that while the Constitution

okays warrantless searches in some situations, it never okays

unreasonable ones.10 Also, the Burger test is a carefully-drawn

screen that we — and all courts — must jealously protect,11 lest

9 See Tart v. Massachusetts, 949 F.2d 490, 498 (1st Cir. 1991);
see also Gonsalves, 435 F.3d at 67-68.
10 See Camara, 387 U.S. at 523, 536-37 (recognizing that the
reasonableness of an administrative search depends on "balancing
the need to search against the invasion which the search entails").
11See generally Jones v. United States, 357 U.S. 493, 499 (1958)
(stressing that warrantless searches must fall within one of the
narrow "jealously and carefully drawn" exceptions to the Fourth
Amendment).
- 19 -
this particular warrantless-search exception destroy the Fourth

Amendment.12

(b)
Reader Alert

Shifting from the general to the specific, we next talk

about the Burger test in the context of this case, eventually

noting how the district court never explicitly addressed whether

the relevant regulatory regime provides an acceptable warrant

substitute. The absence of an express analysis here leaves a

critical gap in the qualified-immunity ruling, because the

presence (or not) of an adequate warrant stand-in affects whether

defendants violated plaintiffs' Fourth-Amendment rights and

whether any such rights were clearly established when they acted.

Believing it better to have the benefit of the district court's

12 We need not decide whether Patel — the Supreme Court's most
recent decision dealing with Burger — changed the Burger test in
any way. That is because the key question for qualified-immunity
purposes is whether the law was clearly established when the
complained-of actions occurred. See, e.g., Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012) (discussing the state of the law "at
the time of [the] arrest"); al–Kidd, 131 S. Ct. at 2083 (focusing
on whether the law was clearly established "at the time of the
challenged conduct"). Notice — prior notice, not after-the-fact
notice — is what matters, because officers need to know when they
are doing wrong. See Reichle, 132 S. Ct. at 2093; see also
Plumhoff, 134 S. Ct. at 2023 (stressing that a court need "not
consider later decided cases because they 'could not have given
fair notice to'" the agent (quoting Brosseau v. Haugen, 543 U.S.
194, 200 n.4 (2004))). And Patel was not around when the events
here went down.
- 20 -
judgment on this vitally-important issue in the first instance, we

— for reasons shortly stated — ultimately remand the search-and-

seizure matter.

(c)
Pervasive Regulations

Our parties spar quite a bit over whether AEMs are part

of a highly-regulated undertaking. The test for whether an

industry fits that bill is whether the state's regulatory presence

is so pervasive that business owners cannot help but know that

their commercial properties may be periodically inspected for

specific purposes. See Burger, 482 U.S. at 705 n.16. Burger

upheld the warrantless inspection of a junkyard's records,

permits, and autos. Id. at 693-95. In doing so the Court found

that auto junkyards fit within the definition of closely regulated

for these reasons: The regulatory scheme required junkyard owners

to get licenses and registration numbers from the state; display

the registration numbers prominently at the businesses; keep books

recording purchases and sales of autos and auto parts; and make

the books and autos available for inspection. Id. at 704.

Junkyard owners could also get hit with criminal penalties, license

- 21 -
revocation, and civil fines if they failed to comply. Id. at 704-

05.

With this in mind, now consider the following:

 The Games of Chance Act, also called the Gambling Act. This

Act singles out as unlawful all "games of chance." 15

L.P.R.A. § 82. A familiar example of a game of chance is a

slot machine.13 Id. As for AEMs, they are "legal." Id. And

the Act defines AEMs as "those machines that do not have

mechanisms or apparatus that are characteristic of gambling

machines . . . ." 15 L.P.R.A. § 82a(a). The Act says that

when AEMs "are located and operated in a business authorized

therefor, the permit for their use . . . shall establish that

13"Games of chance" are machines that have "any of the following"
things:
(1) An apparatus to accept wagers that are
registered on a counter inside the machine.
(2) A mechanism to award cash prizes to the
player, a coin dispenser (hopper) which awards
the prize directly to the player, or a meter
which can register or credit cash payments to
the player.
(3) A knock-off switch to erase the credits
once they are paid to the winning player.
(4) An apparatus or mechanism that causes the
machine to function with total autonomy of the
player for a predetermined cycle or space in
time and which causes that the result of the
game or operation of the machine is decided by
chance or luck.
Id. § 82 (1)-(4).
- 22 -
 they must be located at a distance of over two hundred (200)

meters from a public or a private school or from a church or

congregation that seeks spiritual serenity," 15 L.P.R.A. § 83

— a serious operating restriction, for sure. The Act also

tells the Treasury secretary to "establish the necessary

procedure to ensure that every machine to be authorized as an

[AEM] machine is personally evaluated and certified to be an

[AEM]" by the appropriate Treasury agents. Id. The Act lets

the Treasury secretary hit AEM owners with administrative

fines (ranging from $5,000 to $10,000) for each violation of

the Act. 15 L.P.R.A. § 84a(a). And the Act makes it a felony

for anyone either to prevent agents from inspecting the places

for the purpose of conducting investigations under the Act or

to admit or encourage persons under age 18 "to operate" AEMs.

Id. § 84a(b)(3).

 Treasury Regulation 7437. That regulation — designed to

(among other things) implement the provisions of the Games of

Chance Act — covers a lot of ground too. To get a flavor of

what this provision is about, we note that the regulation

deals with things like what documents are needed to get AEM

licenses — "criminal background" and "debt" certificates, and

"sworn statements" from establishment owners promising not to

let persons under 18 use AEMs. It says where to file the
- 23 -
 papers — at a district office near the applicant's place of

business, for example. It lists the yearly "license fee" for

each AEM — $2,250. It mentions how the license must be

"available for inspection" by Treasury agents and where AEMs

must have identifying "tag[s]" — on their "upper right side."

And it discusses when the Treasury secretary "may deny,

suspend or revoke" a license — if, for instance, a license

holder or its representative prevents the secretary from

inspecting the place of business or examining the relevant

"documents, books, records or reports." See P.R. Treas. Reg.

7437, arts. 2040-1, 2044-1 (certified English translation, at

3-9, 21-26).

 The Internal Revenue Code. The Code empowers the Treasury

secretary to examine "documents, assets," and "inventories"

tied to "activities subject to the taxes and fees" under the

commonwealth's internal revenue code and to also "[s]eize and

sell at public auction or destroy . . . any . . . device whose

operation is illegal" under "the Games of Chance Act." See

13 L.P.R.A. § 8140(a)(1), (7)(G).14

14Section 8140 was in vogue at the time of the events in issue.
The Puerto Rico legislature repealed that section in 2011 and
replaced it with a basically-similar section, 13 L.P.R.A.
§ 33221(a)(1), (7)(G).
- 24 -
  The Uniform Administrative Procedure Act. This statute

declares that agencies (like Treasury) can conduct

inspections — "without a prior order" — to ensure compliance

with the laws and regulations within the agencies' domain.

See 3 L.P.R.A. § 2191.

 And Federación Operadores de Máquinas de Entretenimiento,

Inc. v. Puerto Rico. After canvassing the relevant statutory

and regulatory mosaic, this decision from Puerto Rico's

intermediate appellate court — issued when defendants were

still in the throes of investigating plaintiffs' AEMs — says

that the AEM business is closely regulated. See 2010 WL

4792673, Civ. No. KLCE201000987 (TCA Aug. 30, 2010)

(certified English translation, slip op. at 11-12, 18-19).15

Fairly viewed, this regime is at least as (if not more) pervasive

than the one governing junkyards in Burger — so we agree with the

district court that reasonable officials in defendants' shoes

could believe that the AEM industry qualifies as closely regulated,

at least at the time they acted.

15 Opinions of a state's intermediate appellate court can be
persuasive authority for interpreting state law. See, e.g.,
Candelario del Moral v. UBS Fin. Servs. Inc. of P.R., 699 F.3d 93,
102 (1st Cir. 2012).
- 25 -
 Faced with this concatenation of circumstances,

plaintiffs offer a creative argument. Stripped to its bare

essence, they contend that tightly-regulated businesses are only

those businesses that deal with devices that could endanger lives

(e.g., guns) or that can serve as a fence for stolen goods (e.g.,

auto junkyards). And, they add, AEMs fit neither category. But

they cite no authority for this limiting proposition — probably

because businesses identified as closely regulated when defendants

acted include those that are not inherently dangerous to persons

(like, for example, auto junkyards) and that do not function as

fences for thieves (like, for instance, daycares). That is a very

big deal, because plaintiffs had the burden of showing that clearly

established law when defendants searched the AEMs (in 2010) put

reasonable officials on notice that AEMs were not closely

regulated, see McGrath, 757 F.3d at 29 — a burden plaintiffs

obviously have not come close to satisfying, as we just noted.16

16 Plaintiffs' argument may have more traction given the Court's
Patel decision. See Patel, 2015 WL 2473445, at *10 & n.5
(explaining that "[h]otels — like practically all commercial
premises or services — can be put to use for nefarious ends," and
adding that "unlike the industries that the Court has found to be
closely regulated, hotels are not intrinsically dangerous"). But
recall that Patel had not yet been decided.
- 26 -
 (d)
State Interest

Plaintiffs cite zero cases showing that reasonable

officials in defendants' position would have believed that the

regulatory scheme serves no substantial government interest. This

is hardly a surprise given how then-existing caselaw (i.e., caselaw

as of 2010) stressed that the commonwealth's "interest in the

health, safety, and welfare of its citizens constitutes a

substantial governmental interest"17 and that regulating gambling

"lies at the heart of the state's police power" to further

important goals like protecting "the health, welfare, safety, and

morals of its citizens."18 Together these cases suggest (as the

district court implicitly found) that reasonable persons in

defendants' boots could have concluded the commonwealth has a

significant interest in stopping persons from converting legal

17Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328,
341 (1986) (internal quotation marks omitted); see also United
States v. Edge Broad. Co., 509 U.S. 418, 426 (1993).
18Johnson v. Collins Entm't Co., 199 F.3d 710, 720 (4th Cir. 1999);
see also Ah Sin v. Wittman, 198 U.S. 500, 505–06 (1905) (explaining
that "[t]he suppression of gambling is concededly within the police
powers of a state"); Crutcher v. Commonwealth, 141 U.S. 47, 61
(1891) (emphasizing that the state's police power "extends to . . .
the prohibition of lotteries, gambling, [and] horse-racing").
- 27 -
AEMs into illegal gambling machines, thereby keeping citizens from

becoming gambling addicts.19

(e)
Interest Advancement

Plaintiffs also do not say how reasonable officials — in

the circumstances confronted by each defendant and given the law

as of 2010 — would have reasonably thought that warrantless

inspections do not advance the just-described state interest.

Maybe this is because the law books are chock-full of cases

stressing how "surprise is an important component of an efficacious

inspection regime." Maldonado, 356 F.3d at 135; accord Gonsalves,

435 F.3d at 68. Just look at Biswell, a case the district court

relied on. The statute there required all licensed gun dealers to

keep certain records. It also let officials enter the dealers'

premises — without a warrant — to examine not only the records but

also any firearms kept on the premises. See 406 U.S. at 312 n.1.

And when all was said and done, the Court held that inspections

could not "assure[] that weapons are distributed through regular

channels and in a traceable manner and make[] possible the

prevention of sales to undesirable customers and the detection of

the origin of particular firearms" if inspectors had to schedule

19Converting legal machines into illegal ones is not hard to do,
apparently.
- 28 -
inspections in advance or conduct them only with warrants. Id. at

315-16; see also Dewey, 452 U.S. at 603 (highlighting Congress's

conclusion that given "the notorious ease with which many safety

or health hazards may be concealed if advance warning of inspection

is obtained, a warrant requirement would seriously undercut this

Act's objectives"). But again, plaintiffs put up no serious fight

on whether the state's interest justifies warrantless inspections.

(f)
Warrant Substitute

Instead plaintiffs spend much energy emphasizing how (in

their opinion) the last Burger requirement — that the scheme serve

as a warrant equivalent — is not satisfied because neither the

statutes nor the regulations limit the timing and scope of the

agents' activities. Cf. 482 U.S. at 703 (holding that to be an

adequate substitute for a warrant, the scheme "must perform the

two basic functions of a warrant" — let owners know that the

inspections are made pursuant to law, and be "carefully limited in

time, place, and scope" (internal quotation marks omitted)). As

a result, they add, agents can barge into establishments, break

AEMs' locks, and inspect the machines whenever and however they

please. Not so, defendants insist. The scheme, they say, cabins

the agents' discretion because (to quote their brief) it tells AEM

- 29 -
owners "that the business is subject to inspection and who will

conduct the same."20

Dealing with timing issues can be tricky business.

Courts have okayed schemes limiting inspections to "regular and

usual business hours," see Burger, 482 U.S. at 711, "all reasonable

times," see Biswell, 406 U.S. at 312 n.1, and "all reasonable

hours," see Gonsalves, 435 F.3d at 68. Our litigants direct us to

no statutory or regulatory language like that here. And we see

none.

Still, a regime may pass the Burger test even if there

are no time limits — context is key, with precedent out there in

2010 okaying schemes with no timing limits if such limits would

make inspections unworkable. See, e.g., United States v. Ponce-

Aldona, 579 F.3d 1218, 1225-26 (11th Cir. 2009) (upholding a

regulatory regime authorizing inspections of commercial trucks

with no time restrictions — finding "[t]ime restrictions are not

feasible because trucks operate twenty-four hours a day," noting

"[i]f inspections were limited to daylight hours," for instance,

trucks trying "to avoid inspection could simply travel at night,"

and collecting loads of additional cases). What matters then is

whether the problems that triggered the AEM regulations are limited

20Best we can tell, the parties argue — as they did in district
court — only over time and scope, not place.
- 30 -
to certain hours, like business hours. See, e.g., United States

v. Dominguez–Prieto, 923 F.2d 464, 470 (6th Cir. 1991) (noting

"limitation [on searches of commercial carriers] would . . . render

the entire inspection scheme unworkable and meaningless").

The difficulty here, however, is that the district court

was silent on the timing issue. Ditto for defendants. As for

plaintiffs, they insist the regime has no time limits. But like

defendants, they say nothing about whether timing restrictions

would or would not make the inspection regime unworkable. And the

district court said nothing about this issue as well. These

omissions are significant because an answer on the timing question

is critical for resolving either step in the qualified immunity

analysis — i.e., whether defendants violated plaintiffs'

constitutional rights, and, if so, whether those rights were

clearly established at the time of the incident; again, if

plaintiffs satisfy both steps of the qualified-immunity inquiry,

then they can defeat that defense.

Similar problems plague the ever-so important scope

issue. Ever-so important, because a valid inspection regime

requires "certainty and regularity" of application. Burger, 482

U.S. at 703. And if the regime offers no rules governing the

procedure that agents must follow, "the Fourth Amendment and its

various restrictive rules apply," Colonnade Catering, 397 U.S. at
- 31 -
77. Examples of inspection schemes deemed sufficiently narrow in

scope when our defendants acted include:

 Colonnade Catering, where the statute let agents enter the

premises of liquor dealers "'for the purpose of examining'"

"'articles or objects subject to tax'" — though the high Court

stressed that the statute did not empower agents to forcibly

go into areas without a warrant but rather made it a criminal

offense not to let inspectors in. See 397 U.S. at 73 n.2, 77

(quoting 26 U.S.C. § 7606(a)).

 Biswell, where the statute let officials enter "'the

premises'" of gun dealers "'for the purpose of inspecting or

examining (1) any records or documents required to be kept

. . ., and (2) any firearms or ammunition kept or stored.'"

See 406 U.S. at 312 n.1 (quoting 18 U.S.C. § 923(g)).

 Burger, where the statute let agents "'examine'" the

"'records'" of junkyard operators "'and any vehicles or parts

of vehicles'" on the premises that "'are subject to the

[statute's] record keeping requirements.'" See 482 U.S. at

694 n.1 (quoting N.Y. Veh. & Traf. Law § 415-a5).

 And Gonsalves, where the statute let agents enter drug-

storage facilities "to determine whether 'any of the

provisions of this chapter are being violated,' and to 'secure

- 32 -
 samples or specimens.'" See 435 F.3d at 36 (quoting R.I.

Gen. Laws § 21-31-21).

The problem in our case is that the district court did

not focus serious attention on the scope issue, even though it is

— like timing — an essential consideration in deciding either step

in the qualified-immunity analysis. Yes, as defendants note, the

regime tells AEM owners that agents can inspect licenses and other

records. See P.R. Treas. Reg. 7437, arts. 2040, 2044-1 (certified

English translation, at 4, 23). And yes, as defendants also note,

the regime tells persons that agents can inspect "assets" tied to

activities subject to taxation under a provision of the

commonwealth's internal revenue code. See 13 L.P.R.A. § 8140(a).

But defendants point to nothing — no statute, regulation, or rule

— that explains either how agents can open AEMs or how they can

and should go about inspecting them once opened.21 And if no such

provision exists, the commonwealth's scheme fails to furnish even

the minimal specificity needed to let an AEM owner know that "the

inspections to which he is subject do not constitute discretionary

acts by a government official." Burger, 482 U.S. at 711.

(g)
Our Solution

21 One would expect some analysis on this point, given how
plaintiffs claim the procedure defendants used here greatly
damaged the AEMs.
- 33 -
 Given these serious gaps in the record and the parties'

briefs, it makes perfect sense to remand the case so the district

court can (with counsel's help) work on these all-important timing

and scope matters in the qualified-immunity context — a tack taken

by other circuits in similar circumstances, by the way. See, e.g.,

Kerns, 663 F.3d at 1182 (citing and quoting Distiso v. Town of

Wolcott, 352 Fed. App'x 478, 482 (2d Cir. 2009) (unpublished)).

This approach will let the "adversarial process . . . work through

the problem," resulting in a "considered" lower court decision —

a decision that will, importantly, reduce "the risk of an

improvident governing appellate decision" from us. Id.22 And —

not willing to make uncertain assumptions about the law — we are

doubly persuaded that this is the right course, given how complex

the issues are and how the parties' briefs missed some of the legal

nuances presented by this case.23 See Kerns, 663 F.3d at 1181-82.

22Cf. generally Clifford v. M/V Islander, 751 F.2d 1, 9 n.4 (1st
Cir. 1984) (reversing and remanding, in part, and explaining that
"[w]ithout the benefit of any district court . . . discussion" on
certain legal "matters, it would be idle for us to comment further
about them").
23Puerto Rico's appeals court said the Games of Chance Act neither
"authorize[s] . . . searches at any time of the day or night" nor
"inspections outside of working hours." See Federación Operadores
de Máquinas de Entretenimiento, Inc., 2010 WL 4792673, Civ. No.
KLCE201000987 (certified English translation, slip op. at 22-23).
That may be, but the appeals court did not back up the point with
any legal analysis. See id. And that counsels a remand to the
- 34 -
 In remanding to get the district court's thoughts on the

crucial timing and scope issues, we offer this reminder: To defeat

a qualified-immunity defense here, plaintiffs must show that

defendants violated their Fourth Amendment rights and that those

rights were clearly established at the time. See, e.g., Sheehan,

135 S. Ct. at 1774. Repeating what we said earlier, courts may

(and sometimes should) decide qualified-immunity claims based

solely on the second step — holding that the contours of the right

were not clearly established, without deciding whether there was

a constitutional violation. See, e.g., Pearson, 555 U.S. at 236.

If the district court goes that route, both the court and the

parties should be ever mindful that the qualified-immunity inquiry

is highly context-specific, turning on whether it would be clear

to reasonable officers in defendants' positions that their actions

violated the Fourth Amendment, see, e.g., Rocket Learning, Inc.,

715 F.3d at 10, and that defendants' positions run the gamut from

policymakers to advisors to supervisors to implementers. We also

leave it to the court on remand to resolve codefendants Gadea-

Rivera, Diez de Andino, Vescovacci-Nazario, and Flores-Cortés's

argument that they had no personal involvement in any alleged

constitutional violation, as required by section 1983.

district court so that we can get a fuller picture of what Puerto
Rico law says. See Kearns, 663 F.3d at 1181-82.
- 35 -
 So a vacate and remand on this claim it is — but before

we shift our focus to plaintiffs' next claim, we wish to make one

thing crystal clear: although Patel does not apply in this case

(because of the qualified-immunity overlay), we note that the law

governing administrative searches continues to develop and that

the bench and bar must be on the look for situations where Patel

does hold sway.

Due-Process Claim

Plaintiffs believe defendants violated their federal

due-process rights by not giving them hearings before seizing the

AEMs. Again asserting qualified immunity, defendants counter that

they had to act quickly — because the AEMs "appeared to be

operating illegally" — and that meaningful postdeprivation

remedies are all the process that is due.

We begin with the basics. Normally due process requires

notice and a hearing of some sort before the government takes away

property — the state, in other words, usually must say what it

intends to do and then give affected persons the chance to speak

out against it. See, e.g., Zinermon v. Burch, 494 U.S. 113, 132

(1990); S. Commons Condo. Ass'n v. Charlie Arment Trucking, Inc.,

775 F.3d 82, 85-86 (1st Cir. 2014). "Normally" and "usually" are

words that suggest exceptions. And that is the case in this corner

of the law, because due process is a "flexible" concept not
- 36 -
governed by any "[r]igid taxonomy." See respectively Morrissey v.

Brewer, 408 U.S. 471, 481 (1972); González-Droz v. González-Colón,

660 F.3d 1, 13 (1st Cir. 2011); see also Cafeteria & Rest. Workers

Union v. McElroy, 367 U.S. 886, 895 (1961); San Gerónimo Caribe

Project, Inc. v. Acevedo–Vilá, 687 F.3d 465, 488 (1st Cir. 2012)

(en banc); Elena v. Municipality of San Juan, 677 F.3d 1, 9 (1st

Cir. 2012). As a for-instance, one exception (the one defendants

rely on) is that the state need not give preseizure process if

(a) doing so would defeat the point of the seizure — like when the

property could be moved, concealed, or destroyed if advance notice

is given — and (b) there is adequate postseizure process. See

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679-80

(1974); see also Zinermon, 494 U.S. at 132; Mathews v. Eldridge,

424 U.S. 319, 335 (1976); S. Commons Condo. Ass'n, 775 F.3d at 86.

Plaintiffs' right to preseizure process — an issue on

which they bear the burden, see, e.g., Aponte-Torres v. Univ. of

P.R., 445 F.3d 50, 56 (1st Cir. 2006) — turns on whether the pined-

for process is a reasonable requirement to impose. And that

requires comparing the benefit of the procedural protection sought

— which involves the value of the property interest at issue and

the probability of mistaken deprivations if the protection is not

provided — with the cost of the protection; this is known in legal

circles as the Mathews test. See, e.g., United States v. James
- 37 -
Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (discussing

Mathews); Clukey v. Town of Camden, 717 F.3d 52, 59-60 (1st Cir.

2013) (ditto). Dooming plaintiffs' due-process claim is their

failure to say anything on this all-important test, giving us zero

case analysis to help us see how this benefit/cost comparison would

shake out. What they have done is not the type of serious effort

needed on a complex issue — especially when their briefs present

a slew of other legally intricate claims. And we will not do their

work for them. See, e.g., United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990). So their complaint about not getting

preseizure process is waived. See, e.g., Rodríguez v. Municipality

of San Juan, 659 F.3d 168, 175-76 (1st Cir. 2011).

Ever persistent, plaintiffs have a fallback position:

even if the postseizure remedy they invoked (challenging the

seizures in commonwealth court) is all the process due them, the

AEMs' poor condition (missing games, torn cables, etc.) has left

them unable to prove the AEMs' legality — meaning (the theory goes)

that defendants robbed them of their due-process rights.

Plaintiffs' argument goes nowhere, and fast, because they point us

to no competent evidence (like an affidavit) showing that the AEMs'

condition has kept (or will keep) them from having meaningful

postseizure hearings — a foundation-less allegation in their brief

certainly is not evidence. See, e.g., Tropigas de P.R., Inc. v.
- 38 -
Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st

Cir. 2011) (making clear that "we afford no evidentiary weight to

'conclusory allegations, empty rhetoric, [or] unsupported

speculation, or evidence'" (quoting Rogan v. City of Boston, 267

F.3d 24, 27 (1st Cir. 2001))); see also generally Kelly v. United

States, 924 F.2d 355, 357 (1st Cir. 1991) (pointing out that

"[r]hetoric, unsupported by facts, remains only rhetoric, even if

stridently proclaimed"). To move beyond summary judgment on this

fallback theory, plaintiffs had to back up their allegation with

evidence that creates a material dispute requiring trial. But all

they have given us is an allegation, which (again) does not cut

it. See, e.g., Tropigas de P.R., Inc., 637 F.3d at 56.

Please take note, though: we are deeply (repeat, deeply)

troubled by the damage done to the confiscated machines. And the

parties should know that we might have reached a different

conclusion on the due-process question if plaintiffs had not waived

the argument by failing to develop it.

Equal-Protection Claim

We turn then to plaintiffs' equal-protection claim,

which in essence is this: Puig-Morales fined them but not the

establishment owners over the illegal AEMs, the intention being to

punish plaintiffs for opposing the installation of video-lottery

terminals, his pet project — a plain-as-day equal-protection
- 39 -
violation, plaintiffs conclude. Defendants fight tooth and nail

against this argument, spending a good deal of time trying to

persuade us that the AEM owners and the establishment owners aren't

sufficiently similar to require equal treatment.

All agree that equal-protection principles require

government actors to treat like persons alike. See, e.g., Aponte-

Ramos v. Álvarez-Rubio, 783 F.3d 905, 908 (1st Cir. 2015). All

agree that — given the equal-protection theory they have picked —

to get past summary judgment, plaintiffs must show selective

treatment "compared with others similarly situated . . . based on

impermissible considerations," like "intent to inhibit or punish

the exercise of constitutional rights, or malicious or bad faith

intent to injure a person." Rubinovitz v. Rogato, 60 F.3d 906,

909–10 (1st Cir. 1995) (quoting Yerardi's Moody St. Rest. & Lounge

v. Bd. of Selectman, 878 F.2d 16, 21 (1st Cir. 1989)); see also

Aponte-Ramos, 783 F.3d at 908; Barrington Cove Ltd. P'ship v. R.I.

Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001). And all

agree that to carry their burden on the similarly-situated front,

"plaintiffs must show an extremely high degree of similarity

between themselves and the persons to whom they compare

themselves." Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.

2007) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d

Cir. 2006)). A precise correlation is not necessary, though
- 40 -
plaintiffs must muster "sufficient proof on the relevant aspects

of the comparison to warrant a reasonable inference of substantial

similarity." Id. (adding that while "normally" the similarly-

situated determination is "grist for the jury's mill," a judge can

dispose of an equal-protection claim via summary judgment if

plaintiffs fail to shoulder their burden on this critical issue).

Plaintiffs stumble on the substantial-similarity

requirement — i.e., that they show a satisfactory comparator who

was similarly situated and yet treated differently. The pivot-

point of their argument is the idea that Puig-Morales acted

maliciously by fining them as punishment for not backing his pet

project.24 Given their theory, and keeping in mind that a

comparator must be similarly situated in "all relevant respects,"

id. at 251, the appropriate similarly-situated pool must be

composed of people who should have been fined for the (supposedly)

illegal AEMs (with the different treatment being leniency for those

who didn't oppose the project, plaintiffs argue — at least

24 A quick aside: Plaintiffs' equal-protection argument comes
dangerously close to being a mere rehash of the speech-retaliation
claim (which we discuss in a minute). And we remind the bench and
bar that an equal-protection claim that merely restates a First-
Amendment claim should be considered under the First Amendment.
See, e.g., Aponte-Ramos, 783 F.3d at 908 n.4; Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 430 n.8 (1st Cir. 2010).
- 41 -
implicitly). As for their suggestion that the establishment owners

populate the similarly-situated pool, we see a serious problem:

Plaintiffs never develop the legal basis for concluding

that Puig-Morales could have fined the establishment owners. As

we mentioned many pages ago, a Puerto Rico statute provides that

"[t]he Secretary shall impose an administrative fine on the owner

of not less than five thousand dollars ($5,000) nor more than ten

thousand dollars ($10,000) for each violation" of the Games of

Chance Act.25 15 L.P.R.A. § 84a(a). "Secretary" means the Treasury

secretary. 15 L.P.R.A. § 82a(c). And "[o]wner" means the "person

who owns the adult entertainment machine." 15 L.P.R.A. § 82a(f).

Not a word in section 84a(a) says that the secretary can fine

establishment owners.26 And plaintiffs never stop to confront this

provision — they never explain, for example, how the secretary can

fine establishment owners in the face of that section.27 Litigants

25Puig-Morales clearly alluded to this section at his deposition
when he explained how he had told agents to fine AEM owners "five
thousand dollars, per machine," which, he added, is "the lesser
amount."
26Again, for all intents and purposes, plaintiffs treat AEM owners
and establishment owners as mutually exclusive groups.
27 A different provision of the Games of Chance Act — section
84a(b)(1) — talks about fines for "[e]very" AEM owner "or any other
person, operator, or attendant in a business or establishment"
convicted of introducing illegal machines. The fines range from
$200 to $400 for the first conviction, and $300 to $500 for the
second. "[P]erson[s]" convicted of other offenses under the act
"shall" be fined too, with the maximum "fixed penalty" being
- 42 -
should know by now that it is not for us "to create arguments for

someone who has not made them" or even "to assemble them from

assorted hints and references scattered throughout the brief."

Yeomalakis v. FDIC, 562 F.3d 56, 61 (1st Cir. 2009). Clearly then,

any argument tied to Puig-Morales's fining powers is waived. See,

e.g., Rodríguez, 659 F.3d at 175-76.

The upshot is that plaintiffs have not carried their

burden of proving substantial similarity. So their equal-

protection claim is a no-go.

Speech-Retaliation Claim

That takes us to Rivera-Corraliza's claim that

defendants seized PJ Entertainment's AEMs as payback for his

speaking out about Puig-Morales's vendetta against AEM owners. To

get anywhere he of course must show that his exercise of

constitutionally-protected speech was a "substantial" or

"motivating factor" behind defendants' actions. See González-

Droz, 660 F.3d at 16. "[C]lose" temporal proximity between a

plaintiff's protected activity and the state's retaliatory conduct

can "raise an inference of causation." See id. at 16-17. The key

word in that last sentence (at least so far as this case is

concerned) is "close." See id. at 17 (discussing caselaw holding

$1,000. See 15 L.P.R.A. § 84a(b)(3). Plaintiffs develop no
argument based on these provisions.
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a several month's gap between protected speech and supposedly

retaliatory conduct insufficient to prove causation).

Rivera-Corraliza thinks close proximity exists here,

saying in his opening brief that he continued calling Puig-Morales

out in the press through "the beginning of 2010" — and, remember,

defendants started grabbing PJ Entertainment's AEMs in February

2010. But Rivera-Corraliza does not identify any record facts to

support his (completely conclusory) proximity assertion.

Basically he invites us either to treat what he says as true or to

comb the record without his help to confirm his story. We decline

the invitation. See Rodríguez–Machado v. Shinseki, 700 F.3d 48,

50 (1st Cir. 2012) (per curiam) (reminding everyone that we

appellate "[j]udges are not like pigs, hunting for truffles buried

in" the record (alteration in original) (internal quotation marks

omitted)). His claim is therefore waived. See, e.g., Metro. Prop.

& Cas. Ins. Co. v. Shan Trac, Inc., 324 F.3d 20, 26 (1st Cir. 2003)

(citing Zannino, 895 F.2d at 17).

Local-Law Claims

One last issue. Because we vacate the entry of summary

judgment on the search-and-seizure claim and remand for

proceedings in line with this opinion, the district court should

reinstate the local-law claims. See Rodríguez, 659 F.3d at 181-

82 (1st Cir. 2011). If the court again jettisons the search-and-
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seizure claim before trial, it of course can reassess whether to

keep jurisdiction over the local-law claims. See id. at 182.

Final Words

For the reasons recorded above, we vacate the summary

judgment on the search-and-seizure and local-law claims and remand

for proceedings consistent with what we have said. We affirm in

all other respects.

No costs to either side.

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