USCA1 Opinion
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No. 91-2337
LEONEL BUENROSTRO, ET AL.,
Plaintiffs, Appellees,
v.
PABLO COLLAZO, a/k/a PABLO COLLAZO MARRERO, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Selya and Stahl, Circuit Judges,
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and Skinner,* District Judge.
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John F. Nevares, with whom Annabel Rodriguez, Solicitor
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General, Reina Colon, Assistant Solicitor General, Silvio Cancio,
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and Saldana, Rey & Alvarado were on brief, for appellants.
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Francisco A. Besosa, with whom Goldman Antonetti Ferraiuoli
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& Axtmayer was on brief, for appellees.
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August 26, 1992
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*of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. Plaintiff-appellee Leonel
SELYA, Circuit Judge
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Buenrostro, portraying himself as a victim of mistaken identity
and misplaced zeal, sued a number of police officers under 42
U.S.C. 1983 (1988).1 The defendants unsuccessfully attempted
to pretermit the suit on qualified immunity grounds. The
district court denied their motion for summary judgment. We
affirm.
I
I
_
Consistent with the method of Fed. R. Civ. P. 56(c), we
take the record in the light most hospitable to the party
opposing summary judgment and indulge all reasonable inferences
favorable to him. See Garside v. Osco Drug, Inc., 895 F.2d 46,
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48 (1st Cir. 1990).
On March 29, 1988, the extradition squad raided
Buenrostro's home, hauled him out, and arrested him pursuant to a
"wanted person" request (WPR) from the State of New York. The
police admittedly acted in the absence of an arrest warrant, a
search warrant, or any exigent circumstances sufficient to
justify the intrusion.
As a result of this arrest, appellee was handcuffed,
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1The defendants include Pablo Collazo Marrero, Angel Morales
Gonez, Edwin Teruel, and Jose M. Collazo, members of the Puerto
Rico Police Department's Division of Special Arrests and
Extraditions; Armando Tapia Suarez, the head of that Division;
and Carlos Lopez Feliciano, the Superintendent of Police.
Although other defendants were also sued, these six officers are
the sole appellants in this proceeding. For ease in reference,
we disregard for the time being that Buenrostro's conjugal
partnership and family members are named plaintiffs and treat
Buenrostro as if he alone was the plaintiff-appellee.
2
taken to police headquarters, and locked in a cell.
Subsequently, a local magistrate determined that there was
probable cause to detain him while extradition proceedings ran
their course. Despite a number of red flags e.g., Buenrostro's
claims that the probable-cause determination was based on false
accusations mouthed by members of the extradition squad, his
continuing protests of innocence, significant discrepancies
between the description of the suspect mentioned in the WPR and
Buenrostro's physical characteristics, and available (but unused)
fingerprint evidence Buenrostro remained immured in what the
district court termed "horrific conditions" for thirty-one days.
Finally, a more thorough examination of New York's extradition
request was undertaken, and the Puerto Rican authorities admitted
that they had arrested the wrong man. Buenrostro was released.
Not long thereafter, Buenrostro sued for damages. He
alleged in his complaint that his constitutional rights had been
infracted in various ways. He also asserted pendent claims. In
due course, the appellants sought brevis disposition based on
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qualified immunity. When the district court denied their Rule 56
motion, Buenrostro v. Collazo, 777 F. Supp. 128 (D.P.R. 1991),
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they filed this appeal.
II
II
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A.
A.
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Ordinarily, we would not entertain an immediate appeal
from a denial of summary judgment. See, e.g., Fisichelli v. City
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Known as the Town of Methuen, 884 F.2d 17, 18 (1st Cir. 1989);
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3
see also 28 U.S.C. 1291 (1988) ("[t]he courts of appeals . . .
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shall have jurisdiction of appeals from all final decisions of
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the district courts") (emphasis supplied). Nevertheless, the
denial of a government actor's dispositive pretrial motion
premised on qualified immunity falls within a narrow exception to
the finality principle and is, therefore, immediately appealable.
See Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985); Roque-
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Rodriguez v. Lema Moya, 926 F.2d 103, 105 (1st Cir. 1991);
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Fisichelli, 884 F.2d at 18. The window of opportunity, however,
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is tiny. "Notwithstanding that we have jurisdiction to review
the denial of qualified immunity midstream, any additional claim
presented to and rejected by the district court must
independently satisfy the collateral-order exception to the final
judgment rule in order for us to address it on an interlocutory
appeal." Roque-Rodriguez, 926 F.2d at 105 (citations and
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internal quotation marks omitted); see also Domegan v. Fair, 859
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F.2d 1059, 1061-62 (1st Cir. 1988).
In this case, there is no other basis for earlier-than-
usual review. It follows inexorably that, for present purposes,
we must focus exclusively upon the question of whether the
defense of qualified immunity, as invoked by the appellants,
shielded them from liability for money damages, and from the
concomitant burden of a trial, arising out of the alleged
constitutional deprivation. See Roque-Rodriguez, 926 F.2d at
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105-06.
B.
B.
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4
Appealability aside, appellate review of district court
orders granting or denying summary judgment works the same way in
qualified immunity cases as in other cases. See Morales v.
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Ramirez, 906 F.2d 784, 785 (1st Cir. 1990); Amsden v. Moran, 904
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F.2d 748, 752 (1st Cir. 1990), cert. denied, 111 S.Ct. 713
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(1991). Summary judgment is proper if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). District court orders granting or denying brevis
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disposition are subject to plenary review.2 Griggs-Ryan v.
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Smith, 904 F.2d 112, 115 (1st Cir. 1990); Garside, 895 F.2d at
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48.
III
III
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A.
A.
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Through the medium of qualified immunity, the law
strives to balance its desire to compensate those whose rights
are infringed by state actors with an equally compelling desire
to shield public servants from undue interference with the
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2We recognize that, in some relatively rare instances in
which Rule 56 motions might technically be granted, the district
courts occasionally exercise a negative discretion in order to
permit a potentially deserving case to be more fully developed.
See, e.g., McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979);
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McInnis v. Harley-Davidson Motor Co., 625 F.Supp. 943, 958
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(D.R.I. 1986). We express no opinion on whether this negative
discretion can flower in a case that turns on qualified immunity,
nor do we speculate about what standard of review might then
obtain.
5
performance of their duties and from threats of liability which,
though unfounded, may nevertheless be unbearably disruptive. See
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Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Hence, state
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officials exercising discretionary authority are entitled to
qualified immunity insofar as their conduct does not transgress
clearly established constitutional or federal statutory rights of
which a reasonably prudent official should have been aware. See
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Harlow, 457 U.S. at 818; Roque-Rodriguez, 926 F.2d at 107. In
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this context, the phrase "clearly established" has a precise
definition: "The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right." Anderson v. Creighton, 483 U.S. 635,
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640 (1987); accord Amsden, 904 F.2d at 752.
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In analyzing a qualified immunity defense, a court must
ascertain whether the plaintiff has alleged, with the requisite
particularity, that a state actor violated some right emanating
from federal law.3 See Siegert v. Gilley, 111 S. Ct. 1789, 1793
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(1991); Amsden, 904 F.2d at 752. The next step is to ascertain
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whether the right at issue was "clearly established" at the time
of infringement. See Anderson, 483 U.S. at 640. If it was, an
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inquiring court can then presume that the defendant knew, or
should have known, that his conduct was beyond the pale. See
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Harlow, 457 U.S. at 818-19; Amsden, 904 F.2d at 752.
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3At the summary judgment stage, the allegation must, of
course, be substantiated by competent evidence sufficient to
create a genuine issue of material fact. See Mesnick v. General
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Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), cert. denied, 112
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S. Ct. 2965 (1992); see also Mitchell, 472 U.S. at 526.
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6
B.
B.
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The protections of the Fourth Amendment are fundamental
to the rights of all American citizens and apply unreservedly in
Puerto Rico. See Torres v. Puerto Rico, 442 U.S. 465, 471
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(1979). That prophylaxis guarantees, inter alia, every person's
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right to be free from unreasonable searches and seizures. See
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Payton v. New York, 445 U.S. 573, 585 (1980). Warrantless
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searches or seizures occurring within a person's home are
"presumptively unreasonable," id. at 586 a postulate which was
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indelibly etched in jurisprudential granite at the time of
Buenrostro's arrest. See id.; see also Santiago v. Fenton, 891
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F.2d 373, 386 (1st Cir. 1989) (discussing state of the law in
1983); Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987)
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(similar).
Payton sends the clearest signal for our purposes.
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There, the Supreme Court held that a non-consensual, non-exigent,
warrantless entry into a home to effectuate an arrest
transgressed the Fourth Amendment, notwithstanding that probable
cause sufficient to justify the same arrest in a more public
arena may have existed. Payton, 445 U.S. at 590; see also
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Minnesota v. Olson, 495 U.S. 91, 95 (1990) (describing Payton as
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holding "that a suspect should not be arrested in his house
without an arrest warrant"); New York v. Harris, 495 U.S. 14, 17-
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18 (1990) (Payton "drew a line" prohibiting police from entering
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a person's home without a warrant); United States v. Beltran, 917
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F.2d 641, 642 (1st Cir. 1990) (apart from exigent circumstances
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or a consensual entrance, the Constitution requires the police to
obtain a warrant "before entering a person's home to make an
arrest"). Absent some legally cognizable justification, then,
appellants violated a clearly established constitutional right
when they unceremoniously hauled the plaintiff from hearth and
home.
C.
C.
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Appellants attempt to salvage their qualified immunity
defense by asserting various justifications for their actions.
They claim, first and foremost, that they had probable cause to
believe that Buenrostro was a fugitive from justice and, hence,
to arrest and detain him. That is not, however, the dispositive
criterion. Probable cause, without more, cannot legitimate a
warrantless entry into a suspect's home. See Olson, 495 U.S. at
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95; Payton, 445 U.S. at 587-90.
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Appellants' remaining contentions can be grouped. They
contend that the wanted person request was the functional
equivalent of an arrest warrant.4 But it seems obvious to us
that, in the context of seizing an individual within the confines
of his own home, a wanted person request circulated by an out-of-
state police department differs significantly from an arrest
warrant issued by a neutral, detached magistrate within the
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4If it were correct, this contention would likely carry the
day. See, e.g., Steagald v. United States, 451 U.S. 204, 214
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n.7, 221 (1981) (valid arrest warrant may justify apprehension of
suspect in his own home, notwithstanding the absence of a search
warrant); Payton, 445 U.S. at 602-03 (similar).
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8
jurisdiction where the dwelling is located.
Alternatively, appellants contend that they entered the
house with Buenrostro's consent a datum which, if true, would
obviate the need for a warrant. Buenrostro, however, vehemently
denies that he consented to the intrusion. At the summary
judgment stage, therefore, the district court could not resolve
the issue against him. See, e.g., Unwin v. Campbell, 863 F.2d
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124, 136 (1st Cir. 1988) (if the record reveals a genuine dispute
over a fact-specific question essential to the qualified immunity
inquiry, summary judgment cannot be granted).
What is more, the grouped contentions are both infected
by an incurable strain of procedural default. In the court
below, appellant described the qualified immunity issue as being
"simply whether the police officers, at the time they arrested
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the plaintiff, had probable cause to believe that plaintiff had
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violated the law." Memorandum in Support of Motion for Summary
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Judgment (Memorandum) at 18 (emphasis in original); see also id.
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at 16. They eschewed any reliance on the WPR as a valid proxy
for a conventional arrest warrant. Their moving papers nowhere
suggested, let alone documented, that Buenrostro consented to the
entry into his home. Thus, the "arrest warrant" and "consent"
arguments are by the boards for purposes of this appeal. See
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McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st
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Cir. 1991) (arguments made in a perfunctory or incomplete manner
in the court below are deemed waived on appeal), cert. denied,
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112 S. Ct. 1939 (1992); Clauson v. Smith, 823 F.2d 660, 666 (1st
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9
Cir. 1987) (theories not advanced in the district court cannot be
pressed for the first time on appeal).
We will not paint the lily.5 On this scumbled record,
the district court acted with impeccable propriety in rejecting
the qualified immunity defense and refusing to enter a summary
judgment predicated thereon.
D.
D.
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Although our analysis to this point disposes of the
appeal, we add an eschatocol of sorts. Much of the parties'
briefing and argumentation ventures beyond the easily visualized
Fourth Amendment violation and discusses whether an additional
constitutional deprivation resulted from the sheer length of
Buenrostro's imprisonment. See Baker v. McCollan, 443 U.S. 137,
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145 (1979) (dictum).6 Given the posture of this appeal,
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5It should be noted that two of the appellants, Tapia Suarez
and Lopez Feliciano, were supervisors, not directly involved in
Buenrostro's arrest. In moving for summary judgment, however,
they did not suggest that their involvement should be judged by a
different standard; instead, they were content to lump themselves
with the members of the extradition squad. We have repeatedly
held that, if a defendant wishes to be separated from the pack
and treated independently from his codefendants regarding
qualified immunity, it is necessary that he make the distinction
and present an appropriate argument to that effect in the trial
court. See Brennan v. Hendrigan, 888 F.2d 189, 193 n.2 (1st
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Cir. 1989); Domegan, 859 F.2d at 1065. Since appellants' moving
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papers did not attempt to carve out any such differential niche
in respect to either Tapia Suarez or Lopez Feliciano, we treat
them on a par with the arresting officers.
6The Baker Court wrote:
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We may even assume, arguendo, that, depending
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on what procedures the State affords
defendants following arrest and prior to
actual trial, mere detention pursuant to a
valid warrant but in the face of repeated
10
however, the issue is a dead letter. We explain briefly.
In the court below, appellants premised their qualified
immunity defense strictly and solely on what they claimed was the
officers' objectively reasonable conduct in effectuating
Buenrostro's arrest.7 See Memorandum at 14-19. They cannot now
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switch horses and argue that they are entitled to qualified
immunity on the alleged Baker violation. Qualified immunity is,
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after all, an affirmative defense, and the "right" to have it
determined in an intermediate appeal can be waived if it is not
properly asserted below. See, e.g., Roque-Rodriguez, 926 F.2d at
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105-06; Fisichelli, 884 F.2d at 18-19 & n.2.
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At any rate, the Supreme Court has made it crystal
clear that principles of causation borrowed from tort law are
relevant to civil rights actions brought under section 1983.
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protests of innocence will after the lapse of
a certain amount of time deprive the accused
of "liberty . . . without due process of
law."
Baker, 443 U.S. at 145 (dictum); see also id. at 148 (Blackmun,
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J., concurring).
7The district court, following appellants' lead, did not
address the possibility of qualified immunity vis-a-vis the
alleged Baker violation but merely rejected appellants' effort to
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jettison that allegation for failure to state an actionable
claim. See Buenrostro, 777 F. Supp. at 136 (holding that the
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plaintiff, in connection with his Baker theory, "has stated facts
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sufficient to state a cause of action for . . . deliberate
indifference"). Since we are operating under the Mitchell
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exception to the finality principle, we lack jurisdiction to
review that ruling at the present time. See Roque-Rodriguez,
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926 F.2d at 105-06. Thus, we decline to speculate, here and now,
whether the Baker dictum limns a potentially viable cause of
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action; or, if it does, whether such a claim can be supported on
the facts sub judice.
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11
See, e.g., Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986); Monroe
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v. Pape, 365 U.S. 167, 187 (1961); see also Wagenmann, 829 F.2d
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at 212-13; Springer v. Seaman, 821 F.2d 871, 876-79 (1st Cir.
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1987). Since a jury could conceivably find a causal nexus
between the unlawful arrest and the consequent imprisonment, the
particulars of the imprisonment issue will have to be litigated.
Hence, it would serve no useful purpose to address, in the
isthmian confines of an interlocutory Mitchell-type appeal,
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whether a Baker violation also occurred. In short, once it is
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determined that the case must go forward on the Fourth Amendment
issue, the length and circumstances of Buenrostro's detention are
best examined at trial as part of the determination of damages
flowing from the allegedly unlawful arrest. Cf., e.g.,,
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Mitchell, 472 U.S. at 526 (as long as "the plaintiff's complaint
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adequately alleges the commission of acts that violated clearly
established law" and the plaintiff adduces "evidence sufficient
to create a genuine issue as to whether the defendant in fact
committed those acts," the doctrine of qualified immunity will
not shield a state actor from trial).
IV
IV
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We need go no further. On this record, the appellants
are not entitled to qualified immunity on the Fourth Amendment
claim.8
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8In this case, there seem to be additional facts, not yet
fully developed and-or resolved, which could potentially inform
the ultimate decision on qualified immunity. Hence, the
defendants remain free to adduce additional proof at trial in an
effort to demonstrate that they, or some among them, should be
12
Affirmed.
Affirmed.
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held harmless from damages by the doctrine of qualified immunity.
See, e.g., Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 329
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(1st Cir. 1987).
13