USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1306
CELSO RODRIGUEZ-CIRILO, ET AL.,
Plaintiffs - Appellants,
v.
JUAN B. GARCIA, ET AL.,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
and DiClerico, Jr.,* District Judge. ______________
_____________________
Kevin G. Little with whom Law Offices David Efr n was on _______________ ________________________
brief for appellants.
Eduardo Rodr guez-Quilichini, Assistant Solicitor General, _____________________________
Department of Justice, with whom Carlos Lugo-Fiol, Solicitor _________________
General, and Edda Serrano-Blasini, Deputy Solicitor General, were ____________________
on brief for appellees.
____________________
June 2, 1997
____________________
____________________
* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Chief Judge. Plaintiffs-appellants are six TORRUELLA, Chief Judge. ___________
family members, one of whom, Celso Rodr guez-Cirilo ("Celso"),
was the victim of a stabbing. Celso was stabbed by his brother,
Francisco Rodr guez-Cirilo ("Francisco"), who is not a party to
the suit. The family members filed a civil rights damages action
under 42 U.S.C. 1983 (1994) against two officers of the Puerto
Rico Police Department alleging that the officers' failure to
enforce a temporary detention order against Francisco caused the
injury to Celso and thus violated his constitutional rights.1
The district court held that plaintiffs failed to
establish that a due process right protected under section 1983
was violated by the officers' failure to prevent private
violence, and also held that plaintiffs could not establish
causation. Having reviewed the record and the parties' briefs on
appeal, we find that the district court's treatment of the
causation issue correctly identifies a sufficient ground for
granting summary judgment to the defendants. We therefore do not
reach the nettlesome legal question of whether, in light of
DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 ________ _______________________________________
(1989), a police officer's knowing refusal to carry out the
express terms of a non-discretionary detention order can be
deemed an "affirmative act" that, by increasing the risk of
private harm to those sought to be protected by the order, may
____________________
1 In view of the ambiguous wording of the plaintiffs' complaint,
the district court chose to treat this section 1983 suit as one
claiming a violation of due process under the Fourteenth
Amendment. On appeal, neither party suggests otherwise.
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trigger due process concerns. Cf. DeShaney, 489 U.S. at 201; ___ ________
Frances-Col n v. Ram rez, 107 F.3d 62, 64 (1st Cir. 1997) _____________ _______
(discussing the limited scope for relief under section 1983 where
"the government employee, in the rare and exceptional case,
affirmatively acts to increase the threat of harm to the
claimant"); Soto v. Flores, 103 F.3d 1056, 1064 (1st Cir. 1997) ____ ______
("In a creation of risk situation, where the ultimate harm is
caused by a third party, courts must be careful to distinguish
between conventional torts and constitutional violations.").
BACKGROUND BACKGROUND
In the summary judgment context, we relate all
material facts in genuine dispute in the light most favorable to
the party resisting summary judgment, here the plaintiffs.
S nchez v. Alvarado, 101 F.3d 223, 225 n.1 (1st Cir. 1996). On _______ _________
March 16, 1994, Jorge Rodr guez-Nieves ("Jorge"), a nephew of
both Celso and Francisco who is not a party in the instant suit,
filed a petition pursuant to the Mental Health Code of Puerto
Rico ("Law 116"),2 to have his uncle Francisco involuntarily
detained for psychiatric examination. The petition stated that
Francisco presented a danger to himself and others and had
threatened to kill with a sharp object, such as a machete or a
knife. On March 17, 1994, a San Juan municipal court judge
responded to the petition by issuing an order that Francisco be
detained for examination. The temporary detention order
authorizes a law enforcement officer to detain the subject --
____________________
2 See P.R. Laws Ann. tit. 24 6006 (Supp. 1991). ___
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with the assistance of health care personnel if necessary -- and
to take him to a psychiatric institution where he can be
examined, and where he cannot be held for more than 24 hours. If
the examining doctor concludes that detention for any longer
period or treatment of the subject is required, then that doctor
must notify the petitioner, who must then notify the court. The
temporary detention order under Law 116 does not explicitly give
police officers any discretion with regard to enforcement.3
On the same day that the order was issued, Jorge,
along with two of Francisco's siblings (but not Celso), went to a
police station to have the order enforced. The defendants were
at the police station and assumed the task of enforcing the
order, calling on paramedics for assistance. Later that day, the
defendant police officers, the paramedics, and the three family
members found Francisco at a local establishment. Francisco
refused to go with the officers, stating that he was already
being treated at a veteran's hospital. The officers then failed
to carry out the order, despite the efforts of the family members
to convince the officers that Francisco was dangerous. Before
departing, the officers told the family members that they
themselves should take Francisco to a veteran's hospital for
treatment, which is contrary to the stated procedure under Law
116.
____________________
3 Defendants appear to concede the fact that carrying out the
terms of such a Law 116 order is a non-discretionary obligation
on the part of the police officer.
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No further legal steps were taken to obtain another
detention order, although the plaintiffs and other family members
assert that they made further informal requests to the police to
take Francisco into custody. Francisco was ultimately never
taken to a hospital for examination or treatment. On April 6,
1994, nearly three weeks after the defendants' failure to carry
out the temporary detention order, the injury giving rise to this
damages suit occurred. Francisco stabbed his brother Celso while
Celso was at their mother's house for a visit. Celso had argued
with Francisco about getting their mother some water and then
stood out on a balcony; a few minutes later Francisco returned
and stabbed Celso in the chest with a knife. Celso suffered
injuries to his chest and to his respiratory and digestive
systems.
Plaintiffs brought actions for damages under both
section 1983 and Puerto Rico tort provisions. The district court
granted summary judgment to defendants on the section 1983 suit
and dismissed the state tort claims without prejudice.
DISCUSSION DISCUSSION
We review the district court's grant of summary
judgment de novo. Serrano-Cruz v. DFI Puerto Rico, Inc., No. 96- __ ____ ____________ _____________________
1418, 1997 WL 114118, at *2, --- F.3d --- (1st Cir. 1997).
The essential elements of a claim under section 1983
are: First, that the defendants acted under color of state law;
and second, that the defendants' conduct worked a denial of
rights secured by the Constitution or by federal law. Mart nez ________
-5-
v. Col n, 54 F.3d 980, 984 (1st Cir. 1995). To satisfy the _____
second element, plaintiffs must show that the defendants' conduct
was the cause in fact of the alleged deprivation. See Guti rrez- ___ __________
Rodr guez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989). The _________ _________
issue of causation of damages in a section 1983 suit is based on
basic notions of tort causation. See Maldonado Santiago v. ___ __________________
Vel squez Garc a, 821 F.2d 822, 831 (1st Cir. 1987) ("Section ________________
1983 imposes a causation requirement similar to that of ordinary
tort law."). In applying basic tort principles to the facts
raised by a particular section 1983 claim, the causation
requirement may be fleshed out with reference to state law tort
principles. Guti rrez-Rodr guez, 882 F.2d at 561. ___________________
As discussed in the decision below, plaintiffs cannot
establish that the conduct of the defendants, in not enforcing
the temporary detention order, was the legal cause of an attack
occurring much later. See Rodr guez-Cirilo v. Garc a, 908 F. ___ ________________ ______
Supp. 85, 91 (D.P.R. 1995). The concept of proximate causation
restricts tort liability to those whose conduct, beyond falling
within the infinite causal web leading to an injury, was a
legally significant cause. The passage of time can certainly
reduce the legal significance of a particular contributing act.
See Restatement (Second) of Torts 433 (1965) (lapse of time a ___ _____________________________
factor to be considered in determining whether a contributing
factor is substantial).
The remoteness in time of the harm in this case
precludes a finding of proximate causation. Although Francisco
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committed the kind of violence mentioned in the petition for a
detention order, the space of over two weeks that passed after
the officers' failure to detain Francisco, during which time
family members did not attempt to obtain another detention order,
renders his later act of violence too remote to impose liability
on the officers. Cf. Mart nez v. California, 444 U.S. 277, 285 ___ ________ __________
(1980) (murder committed by parolee five months after release
"too remote" a consequence to hold parole board liable under
section 1983); Restatement (Second) of Torts 433 (1965). _______________________________
Although the stabbing occurred at the address named in the
original petition, and although the police officers may have had
some indication that Celso would be at danger from an attack by
Francisco,4 given the intervening time we cannot say that the
officers' failure to enforce the order was the legal cause of the
injury. See Mart nez, 444 U.S. at 285; Restatement (Second) of ___ ________ ________________________
Torts 433 cmt. f ("Experience has shown that when a great _____
length of time has elapsed between the actor's negligence and
harm to another, a great number of contributing factors may have
operated, many of which may be difficult or impossible of actual
____________________
4 It is a widely recognized tort law principle that one may be
responsible for the foreseeable intervening acts of third
parties. For example, the requirement of "causalidad adecuada"
under Puerto Rico tort law would permit the assignment of
liability if the intervening third party action -- that is,
Francisco's stabbing -- was a reasonably foreseeable consequence
of the defendants' actions. Widow of Andino v. Puerto Rico Water _______________ _________________
Resources Auth., 93 P.R.R. 168, 177-79 (P.R. 1966) (harm caused ________________
by reasonably foreseeable intervening causes, including the
actions of third parties, may lead to liability).
-7-
proof. . . . [T]he effect of the actor's conduct may thus be so
attenuated as to be insignificant . . . .").
What further persuades us that the causation issue in
this case is dispositive is that even if Francisco had been taken
to a hospital on March 17, 1994, for examination, appellants have
not shown that an examination performed on that day would have
prevented the violent attack, spurred by an argument, on April 6,
1996. The temporary detention period was itself limited to a
maximum of twenty-four hours. Appellants offered no competent
evidence that could have supported a finding that an examination
in Francisco's particular case would have prevented the later
attack. Appellants rely on a clinical psychologist's signed
statement asserting that Francisco's "personality disorder"
caused the stabbing, and that, had Francisco been detained on
March 17, 1994, he would have received effective treatment that
would have prevented the stabbing. This statement, based solely
on information collected through conversations with Francisco's
relations and formed without any direct examination of either
Francisco or of his medical records, is not enough to defeat
defendants' motion for summary judgment and does not create a
triable issue of material fact as to causation.5 "The nonmoving
party must establish a trial-worthy issue by presenting 'enough
____________________
5 This statement, as the district court notes, would probably be
found unreliable and inadmissible as expert testimony under Fed.
R. Evid. 702. Garc a, 908 F. Supp. at 91-92. In any event, the ______
psychologist's broad assertion regarding causation does not
create a triable issue in this case, where the defendant's case
as to a lack of proximate causation is strong.
-8-
competent evidence to enable a finding favorable to the nonmoving
party.'" LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st _______ ___________________
Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. ________ ____________________
242, 249 (1986)). Thus, not only do appellants run into
proximate causation problems, but their case also falls short
with regard to demonstrating the "but for" aspect of causation.
See Restatement (Second) of Torts, 432 (1965). We conclude, ___ _____________________________
therefore, that defendants were properly granted summary judgment
based on plaintiffs' failure to demonstrate causation under well-
established tort principles.
Appellants' remaining arguments on appeal do not
require lengthy treatment. First, we note that the record
indicates that the appellants have failed to support, with any
competent evidence, their additional assertion that there existed
a conspiracy between the defendants and Francisco to violate
plaintiffs' civil rights. Second, in response to appellants'
claim that the district court abused its discretion in denying
them an opportunity to amend their complaint after the deadline
for such amendments established in the court's scheduling order,
we note that even had the plaintiffs been able to amend their
complaint by adding as a third defendant the supervisor of the
two defendant police officers, the fundamental, insurmountable
obstacle of causation would still have remained, and would still
have offered a sufficient ground for summary judgment in favor of
defendants.
CONCLUSION CONCLUSION
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For the foregoing reasons the district court's grant
of summary judgment to defendants is affirmed. ________
Concurrence Follows
-10-
CAMPBELL, Senior Circuit Judge (Concurring). I write CAMPBELL, Senior Circuit Judge (Concurring) __________________________________
separately because I believe that there was sufficient evidence
of causation to allow the issue to go to the jury. However, I
concur with the majority's result because I do not think the
police officers' conduct constituted a violation of the
plaintiffs' constitutional due process rights.
I. Causation I. Causation
I think the record indicates the existence of a factual
issue as to causation, precluding the granting of summary
judgment in favor of Defendants on the ground of an absence of
causation. See Ahern v. O'Donnell, 109 F.3d 809, 811 (1st Cir. ___ _____ _________
1997) (all inferences to be made in favor of party against whom
summary judgment sought).
Causation depends upon whether, assuming the police
officers violated 1983 on March 17 by not carrying out the
court order directing them to take Francisco into custody for
psychiatric examination, there was a sufficient causal connection
between the officers' default and Francisco's stabbing of a
relative two weeks later.
Causation in tort law is generally divided into two
concepts: causation in fact, or actual causation, and proximate
or legal causation. See W. Page Keeton et al., Prosser & Keeton ___ ________________
on Torts 41-42 (5th ed. 1984). The terms for these two _________
concepts are sometimes confused, as are the concepts themselves.
Regardless of the terminology, however, there are two questions
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that must be answered to determine if a defendant's conduct
"caused" a plaintiff's injury. The first question is whether
there was in fact some causal relationship between the conduct
and the outcome. The Restatement expresses this test as whether ___________
the defendant's conduct was a "substantial factor" in producing
the harm. Id. The second question is whether the circumstances ___
and causal relationship are such that the law will impose
liability on the defendant. Sometimes this is expressed as a
foreseeability test, see Keeton, supra, 42, at 273. Cf. ___ _____ ___
Restatement (Second) of Torts, 431(b) (1965) (different ________________________________
terminology).
Regarding the second issue, foreseeability, that prong
is plainly satisfied here. A foreseeable result of the police
officers' failure to take Francisco to the psychiatrist for
examination, as ordered by the court, was that he would harm
someone, since the express basis of the court order was
Francisco's potential dangerousness and likely eligibility for
involuntary commitment in a mental health facility. The reason
for the ordered psychiatric examination, as Puerto Rico's
statute specifically provides, infra, is to determine whether a _____
person believed to be dangerous is dangerous, and needs to be __
committed immediately in order to avoid the kind of harm
Francisco later caused. While under the preliminary court order
in issue Francisco could only be detained for twenty-four hours,
the order directed that he be psychiatrically examined during
that period and that, within the twenty-four hours, a report of ____________________________
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his condition be sent to the judge and proper steps be initiated
for his involuntary admittance should that be indicated. Thus ___________
the harm that occurred here was clearly a foreseeable result of
interrupting the protective process begun by the petition and
order.
Since the harm that occurred was foreseeable, the only
remaining question is that of actual cause, i.e., whether ______
Francisco's later assault with a knife was actually linked
causally in sufficient degree to the police's failure to detain
Francisco for the ordered psychiatric examination. I believe
that on this record a factual issue is raised as to whether the
police officers' failure to comply with the court order to detain
Francisco was a "substantial factor" in bringing about the harm
from Francisco's later stabbing of Celso.6
The order the police failed to carry out was issued
under a comprehensive statutory scheme for the examination and
involuntary commitment to a mental health facility of mentally
ill people who are dangerous to themselves or others. In the
first step of this process, any person who fears an individual
may be psychologically unstable may bring that individual to the
attention of a Puerto Rico court. P.R. Laws Ann. tit. 24,
____________________
6 Although the majority discusses the Restatement's "substantial ___________
factor" test under the rubric of proximate causation, Rodr guez- __________
Cirilo v. Garc a, ___ F.3d ___, No. 96-1306, slip op. at 6 (1st ______ ______
Cir. May ___, 1997), it is perhaps more accurately described as
referring to actual causation. See Keeton, supra, 42, at 278 ___ _____
("[T]he 1948 revision of the Restatement limited [the]
application [of the "substantial factor" test] very definitely to
cause in fact alone.") (citing, inter alia, Restatement (Second) __________ ____________________
of Torts 433 (1965)). ________
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6006. This occurred here when a relative, Mr. Jorge Rodr guez-
Nieves, filed a petition to the Puerto Rico court declaring that
Francisco was believed dangerous, having threatened to kill
someone with a sharp object such as a machete or a knife. The
petition also stated that Francisco had previously been in a
recognized mental institution.
The second step spelled out in the Puerto Rico statute
is for a judge to decide, preliminarily, whether or not there are
"reasonable grounds to believe that the patient is subject to
involuntary admission and needs immediate hospitalization to keep ___________
him from harming himself, other persons or property." Id. ___
(emphasis supplied). The judge expressly found such reasonable
grounds here and issued a written order that Francisco was to be
detained for twenty-four hours and examined by a psychiatrist to
determine "if he should be admitted immediately and involuntarily
to the psychiatric institution," as the statute provided. The
order directed that an explanatory report be returned to the
judge within the twenty-four hours and a resolution of
provisional admittance prepared in the event continued
hospitalization was required. It was the court order containing
the above provisions that the police allegedly failed to carry
out, with the result that Francisco was never examined by a
psychiatrist and the necessary steps never taken for his
involuntary hospitalization should that have been recommended by
the psychiatrist.
-14-
If Francisco had been examined, the psychiatrist was
under a duty, as the order and Puerto Rico law provide, to report
his findings concerning Francisco's mental condition and
potential dangerousness back to the court within twenty-four
hours. If the court had then found by clear and convincing
evidence, see P.R. Laws Ann. tit. 24, 6089, that Francisco was ___
"subject to involuntary admission," the court would have ordered
him confined to a mental health facility. P.R. Laws Ann. tit.
24, 6090. The statute provides that a person is "subject to
involuntary admission" if he is mentally ill and if, because of
his illness, he "may reasonably be expected to physically injure
himself or any other person, or damage property." P.R. Laws Ann.
tit. 24, 4002(14)(a).
It is important to emphasize that the order here in
question did not merely provide for a twenty-four hour period of
detention. Rather it was based on a judge's finding of
reasonable cause to believe that Francisco was a candidate for
involuntary admission, i.e. confinement, in a mental health
facility. The twenty-four hours' detention was merely the period
within which he was to be evaluated, after which, if the initial
finding was confirmed, he would be involuntarily committed for a
more extended period. Under Puerto Rico law, a court's order for
involuntary admission is limited, in the first instance, to a
term of thirty days, but it can be followed by an additional
thirty-day order. P.R. Laws Ann. tit. 24, 6094(a). This
second thirty-day period may then be supplemented by additional
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periods of 180 days as long as the patient "continues to be
subject to involuntary admission." P.R. Laws Ann. tit. 24,
6094(b). So in effect, once involuntarily admitted, a person may
be forced to remain confined in a mental health facility
indefinitely if he remains a danger to himself, others, or to
property because of a mental illness.
I believe the evidence here plainly creates a jury
issue as to whether Francisco would likely have been confined to
a mental health facility for a sufficient period of time to
render him unable to stab Celso when he did, had the police
complied with the court order to detain him for a psychiatric
examination. A jury could find that the police officers' failure
to enforce the order was a "substantial factor" in the ensuing
harm.
As noted, there is evidence that Francisco had
threatened to kill with a sharp object, such as a machete or a
knife, a threat followed by stabbing his brother two weeks later.
The record also indicates his prior hospitalization in a mental
facility, giving rise to an inference that his behavior stemmed
from an underlying mental condition. Even more significantly,
the record shows a judicial determination, reciting the
consideration of evidence, that "the Court finds a reasonable
basis to believe that [Francisco] may be subject to an
involuntary admission treatment and hospitalization under the
provisions of the Puerto Rico Mental Health Code." Underlying
that determination necessarily lay a finding of reasonable
-16-
grounds to believe that Francisco might harm himself, other
persons or property. See P.R. Laws Ann. tit. 24, 6006. ___
The above facts more than suffice, in my view, to
demonstrate a triable issue over whether, if the defendants had
done their duty and brought Francisco to the psychiatrist for
examination, the latter would more likely than not have found
that Francisco was mentally ill and a danger to himself or to
others and recommended committing him involuntarily. Had that
recommendation been made, it could also be reasonably inferred
that the Puerto Rico court would have implemented it pursuant to
the statutory authority described above, and that Francisco,
being confined, would not have been able to stab Celso two weeks
later. Hence, I believe there is adequate evidence to create a
factual issue for later trial over whether the police officers'
default was a "substantial factor" in causing Celso's stabbing.7
The majority argues that no reasonable jury could find
that the police officers' failure to bring Francisco to the
psychiatrist actually caused Celso's injuries. They point out
that two weeks elapsed between the police officers' failure to
____________________
7 My colleagues' error, as I see it, is in treating causation as
a matter for their own determination now rather than recognizing
that, on summary judgment, the question is simply whether,
viewing everything most favorably to (here) the plaintiffs, the
record indicates a disputed issue of fact. I do not see how, for
that purpose, one can ignore the finding, similar to a probable
cause finding, of a Puerto Rico judge, coupled with undisputed
facts strongly indicating that Francisco was both mentally
unbalanced and dangerous to others the criteria for
involuntary admission. From these facts a reasonable jury could
infer that he would likely have been committed for several weeks
or more, thus preventing any attack on Celso.
-17-
detain Francisco and the stabbing. They also insist that it is
too speculative, on this record, to know whether Francisco would
have been confined or treated so as not to have injured Celso
when he did.
The time factor is hardly significant here. Two weeks
is not a lengthy interval for present purposes; it is less than
the thirty days which the court could have initially ordered him
confined had the court determined, after psychiatric examination,
that he was dangerous. "[W]here it is evident that the influence
of the actor's negligence is still a substantial factor, mere
lapse of time, no matter how long, is not sufficient to prevent
it from being the legal cause of the other's harm." Restatement ___________
(Second) of Torts, 433(c) cmt. f (1965). The damage from the __________________
collapse of a defective bridge is no less caused by the builder's
negligence even though occurring months or years after
construction.
As for the argument that it is too speculative whether
Francisco would have been confined, I think, for reasons already
discussed, that the present record is sufficient to raise a
factual issue concerning his likely commitment that makes summary
judgment inappropriate. The evidence of Francisco's mental
instability and dangerousness is uncontested making it probable
that he would have been committed. The Puerto Rico judge had
already found that Francisco was a likely candidate for
involuntary commitment a preliminary finding, to be sure, but
-18-
indicative of a factual issue in that judge's mind as to the need
to commit him.
There is, in addition, the affidavit of a psychologist
which, if accepted, would lend even further support to the
probability of his commitment. Unfortunately, as the district
court and my colleagues note, the affidavit is poorly drafted.
The affidavit says only that it is the psychologist's
"understanding" that Francisco has a serious personality
disorder. It does say, however, that the psychologist is "of the
opinion that Mr. Francisco Rodr guez-Cirilo's being temporarily
detained on March 17, 1994 for the purpose [of] an examination
and evaluation of his mental condition . . . would have resulted
in Francisco Rodr guez-Cirilo's receipt of timely and effective
psychological and/or psychiatric treatment, most likely on an in ____________________
patient basis over an extended period of time," (emphasis ____________________________________________________
supplied) and expresses the opinion that such treatment would
have prevented Francisco's later stabbing of Cirilo.
Given, in any case, the other uncontested factual
evidence mentioned above plainly indicating Francisco's
abnormality and dangerousness, I cannot doubt that a factual __________
issue exists over whether Francisco would have been confined and, ____________
if so, rendered unable to have committed the assault in dispute.
The very finding by the Puerto Rico court of reasonable grounds
to believe that Francisco was subject to involuntary commitment
suggests the existence of such a triable issue. The existence of
such an issue is the only question at the present stage. We are ____
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not now acting as factfinders. Summary judgment is not a
substitute for trial. The credible evidence here all shows that
Francisco was suffering from mental instability, having been
previously hospitalized and having uttered credible threats,
later carried out, to stab someone to death. Hence even
excluding the affidavit, the record provides a factual basis for
a finding that, if detained as ordered for psychiatric
examination, Francisco would, more likely than not, have been
involuntarily admitted to a mental health facility, thereby
preventing the later stabbing. The police officers' failure to
detain Francisco could thus reasonably be found to have been a
"substantial factor" in producing Celso's injuries.
II. The Due Process Claim II. The Due Process Claim
Despite my disagreement with the majority on causation,
I concur in the result because, like the district court, I do not
believe that the plaintiffs have stated a violation of the Due
Process Clause of the federal constitution.8
Plaintiffs' due process claim does not rest, of course,
on any contention that the police or other agents of the state
attacked or physically harmed Celso. This case is not about
violence committed by agents of the state. Rather, Plaintiffs'
claim concerns the all too common situation where violence
inflicted by a third party might have been prevented had the
____________________
8 The Fourteenth Amendment states, in relevant part, "[N]or
shall any State deprive any person of life, liberty, or property,
without due process of law . . . ."
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police or other public officials acted more diligently. But
while police default may be found to have caused Celso to lose
the protection of a state statutory scheme designed to guard the
public against people having Francisco's potential for violence,
this unfortunate failure does not violate the federal
constitution. As the Supreme Court wrote:
But nothing in the language of the Due
Process Clause itself requires the State
to protect the life, liberty, and
property of its citizens against invasion
by private actors. The Clause is phrased
as a limitation on the State's power to
act, not as a guarantee of certain
minimal levels of safety and security.
It forbids the State itself to deprive
individuals of life, liberty, or property
without "due process of law," but its
language cannot fairly be extended to
impose an affirmative obligation on the
State to ensure that those interests do
not come to harm through other means.
DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189, ________ ______________________________________
195 (1989). See also Estate of Gilmore v. Buckley, 787 F.2d 714 ________ _________________ _______
(1st Cir.) (holding that a county was not liable under the Due
Process Clause for the death of a woman murdered by a prison
inmate while he was on a furlough release, even though the county
had reason to know that the victim was in special danger from the
murderer), cert. denied, 479 U.S. 882 (1986). ____________
Nor does the fact that the police violated the plain
order of a Puerto Rico court to detain Francisco and bring him to
a psychiatrist for examination change the analysis. Police
officers certainly have a duty to obey court orders. But the
court did not, in ordering Francisco's detention, thereby create
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the sort of "special relationship" between the state and all of
Francisco's potential victims that might make the state liable
for any harm that came to them at Francisco's hands. See ___
generally DeShaney, 489 U.S. at 198-203 (discussing the "special _________ ________
relationship" test). Neither did the state render Celso more
vulnerable to the danger posed by Francisco. See id. at 201. By ___ ___
failing to detain him for examination, the defendants merely
failed to reduce a danger not of the state's own making
that Francisco's violent proclivities already created.
The police officers in this case may have acted
improperly. Faced with a court order to detain Francisco, they
should not have substituted their judgment for the court's and
refused to detain him in violation of the court's order. As
discussed above, a jury could reasonably find that their wrongful
failure to enforce the court's order was a substantial factor in
causing Celso's injury by Francisco. Their default might
constitute a tort under state law. See Restatement (Second) of ___ ________________________
Torts 323 (1965) (stating that one who undertakes to render _____
services to another may be liable for performing negligently).
But "the Due Process Clause of the Fourteenth Amendment
. . . does not transform every tort committed by a state actor
into a constitutional violation." DeShaney, 489 U.S. at 202. If ________
the defendants' conduct here violated the Due Process Clause,
then many everyday defaults of police, firefighters, and other
public officials around the nation would likewise violate the
Constitution on a similar theory. It will be unfortunate, I
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believe, if, instead of relying on state legislatures and state
courts to provide legal means to redress matters of this nature,
federal courts transform conduct that is at most tortious into
constitutional causes of action.
I would affirm the decision of the district court
because the plaintiffs have no cause of action under 42 U.S.C.
1983 and the Due Process Clause.
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