Robles-Vazquez v. Tirado Garcia

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1375

ELBA ROBLES-VAZQUEZ, ET AL,

Plaintiffs, Appellants,

v.

RAUL TIRADO GARCIA, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and DiClerico,* District Judge.

Guy L. Heinemann, with whom Edelmiro Salas Garcia was on brief

for appellants.
Sylvia Roger-Stefani, Assistant Solicitor General, with whom

Carlos Lugo-Fiol, Solicitor General, and Edda Serrano-Blasini, Deputy

Assistant Solicitor, Department of Justice, were on brief for
appellees.

April 10, 1997

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

CAMPBELL, Senior Circuit Judge. Plaintiffs-

appellants appeal from an order of the district court

vacating an earlier $2.25 million judgment following a jury

verdict in plaintiffs-appellants' favor on their individual

claims under 42 U.S.C. 1983 and the Puerto Rico

Constitution. At issue is the power of the district court to

grant judgment as a matter of law after a jury's verdict on a

ground never raised by the parties prior to submission of the

case to the jury. We reverse.

I.

We state the facts in the light most favorable to

the verdict. See Aetna Casualty Surety Co. v. P & B

Autobody, 43 F.3d 1546, 1552 (1st Cir. 1994).

On the night of August 26, 1991, defendants-

appellees Raul Tirado Garcia and Julio Olivares Febles,

assistant marshals of the Superior Court of Puerto Rico,

arrested Meraldo Bran
~
a Cruz at his home for nonpayment of

child support pursuant to a valid arrest warrant. Bran
~
a had

no criminal record, and the marshals did not consider him

dangerous; they did not handcuff or frisk him before placing

him in the back seat of the patrol car.

During the drive, Bran
~
a asked if they could stop by

a phone so he could call a relative to arrange for payment of

his child support arrearage. The police officers agreed, but

Bran
~
a took advantage of the opportunity to make his escape.

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2

During the subsequent pursuit on foot, Tirado fired several

shots at Bran
~
a, one of which hit him in the back of his leg.

When Tirado caught up with Bran
~
a, he shot him in

the back at close range. Bran
~
a collapsed, and the marshals

brought him to the hospital. Despite extensive surgery,

Bran
~
a continued to endure excruciating pain, post-traumatic

stress syndrome, chronic depression, stomach problems, a

swollen leg, back pain, and a limp. He died on December 24,

1992 of cardiac arrhythmia, caused by the prescription drugs

he had been taking for the pain.

Bran
~
a sued, among others, Tirado and the

Commonwealth of Puerto Rico under 42 U.S.C. 1983,1 alleging

that Tirado had used excessive force in violation of the

Fourth and Fourteenth Amendments to the United States

Constitution2 and Article II, 7 and 10 of the Puerto Rico

1. 42 U.S.C. 1983 states, in relevant part, "Every person
who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory . . . subjects,
or causes to be subjected, any citizen of the United States
. . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law . . . ."

2. The Fourth Amendment to the United States Constitution
states, in relevant part, "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated
. . . ."
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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3

Constitution.3 After Bran
~
a'sdeath, his common-law wife, Elba

Robles-Vasquez, and his six children prosecuted Bran
~
a's

surviving claims as his heirs. His wife and the children

also sought recovery individually for their own pain and

suffering, emotional distress, and other damages, relying on

similar provisions of the United States and Puerto Rico

Constitutions.

At the close of the plaintiffs' case, the

defendants moved for judgment as a matter of law under Fed.

R. Civ. P. 50(a). This motion did not include as a reason

for dismissal of the wife's and children's individual claims

that Tirado's actions had in no way been directed at the

relationship between Bran
~
a and his wife and children.4 The

court denied the motion.

3. Article II, 7 of the Puerto Rico Constitution states,
in relevant part, "No person shall be deprived of his liberty
or property without due process of law."
Article II, 10 of the Puerto Rico Constitution states,
in relevant part, "The right of the people to be secure in
their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated."

4. First Circuit case law holds that surviving family
members cannot recover in an action brought under 1983 for
deprivation of rights secured by the federal constitution for

their own damages from the victim's death unless the

unconstitutional action was aimed at the familial
relationship. See, e.g., Manarite v. City of Springfield,

957 F.2d 953, 960 (1st Cir.), cert. denied, 506 U.S. 837

(1992). "State action that affects the parental relationship
only incidentally, however, even though the deprivation may
be permanent, as in the case of unlawful killing by the
police, is not sufficient to establish a violation of a [sic]
identified liberty interest." Pittsley v. Warish, 927 F.2d

3, 8 (1st Cir. 1991).

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The jury found in Bran
~
a's favor in his own,

surviving action, awarding to his heirs, on Bran
~
a's behalf,

one million dollars in compensatory damages and $500,000 in

punitive damages. The jury also awarded to Robles and the

children, in the claims brought on their individual behalfs,

$250,000 each in compensatory damages and $500,000 in

punitive damages to the group as a whole.

The court remitted the punitive damages from

Bran
~
a's own claims to $250,000. No appeal has been brought

from the judgment entered upon Bran
~
a's claims.

The court, however, granted part of the defendants'

Rule 50(b) Motion for Renewal of the Motion For Judgment as a

Matter of Law and dismissed the wife's and children's

individual claims under 1983, holding that Tirado's conduct

was not aimed at interfering with Bran
~
a's relationship with

his family as required by First Circuit case law. See infra

note 6. In a footnote, the court also dismissed plaintiffs-

appellants' similar claims under the Puerto Rico

Constitution, saying they were "of the same ilk" as the

federal constitutional claims. As a result, the district

court dismissed so much of the jury's award as granted an

additional $1,750,000 in compensatory damages, and $500,000

in punitive damages, to the wife and children in their

individual rights. The plaintiffs appeal from the court's

granting of the part of the Rule 50(b) motion.

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5

II.

Plaintiffs-appellants' primary argument on appeal

is that defendants-appellees waived the contention that, as

Tirado's alleged unconstitutional action against Bran
~
a was

not aimed at the latter's relationship with his family, the

plaintiff family members could not recover their individual

damages resulting from Bran
~
a's injury and death. See infra

note 6. The defendants did not raise this point of law in

any pre-trial motion, nor did they raise it in the Rule 50(a)

motion filed at trial. Also, the defendants did not object

to the court's jury instructions which authorized the jury to

award damages to the individual family members and made no

mention before the jury retired of any legal limitation of

this nature.

The first reference to the issue surfaced in a

rather weak suggestion of the point in defendants-appellees'

post-verdict renewed motion for judgment as a matter of law

made under Fed. R. Civ. P. 50(b). However, "[a] post-trial

motion for judgment can be granted only on grounds advanced

in the pre-verdict motion." Fed. R. Civ. P. 50(b) advisory

committee's note to the 1991 amendment; see also Sanchez v.

Puerto Rico Oil Co., 37 F.3d 712, 723 (1st Cir. 1994) (same).

"The purpose of the Rule 50(b) requirement is to alert the

opposing party to the movant's claim of insufficiency before

the case goes to the jury, so that his opponent may possibly

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cure any deficiency in his case should the motion have merit,

and also so that the judge may rule on the adequacy of the

evidence without impinging on the jury's fact-finding

province." Martinez Moll v. Levitt & Sons of Puerto Rico,

Inc., 583 F.2d 565, 569 (1st Cir. 1978).

An appellate court may not ordinarily consider an

issue raised for the first time in a Rule 50(b) motion on the

merits. See id. at 568. "[T]he exceptions [to this rule]

are few and far between, and appellate discretion should not

be affirmatively exercised unless error is plain and the

equities heavily preponderate in favor of correcting it."

Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st

Cir. 1995), cert. denied, 116 S. Ct. 1423 (1996).5

A district court has no more leeway than a court of

appeals to consider an issue raised post-verdict for the

first time in a Rule 50(b) motion. See generally American

and Foreign Insurance Company v. Bolt, 106 F.3d 155, 159-60

(6th Cir. 1997) ("While it is accepted that a judge may sua

5. Similarly, a failure to object to jury instructions
constitutes a waiver. Fed. R. Civ. P. 51 states, in relevant
part, "No party may assign as error the giving or the failure
to give an instruction unless that party objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter objected to and the grounds of the
objection." See also Putnam Resources v. Pateman, 958 F.2d

448, 456 (1st Cir. 1992) ("Silence after instructions . . .
typically constitutes a waiver of any objections."); La Amiga

del Pueblo, Inc. v. Robles, 937 F.2d 689, 690-91 (1st Cir.

1991) (holding that unobjected to jury instructions become
the law of the case); Quinones-Pacheco v. American Airlines,

Inc., 979 F.2d 1, 4 n.3 (1st Cir. 1992) (same).

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7

sponte grant a directed verdict pursuant to Fed. R. Civ. P.

50(a) . . . allowing a judge to sua sponte raise a new issue

post-verdict, and proceed to overturn a jury verdict on that

basis contravenes the dictates of Rule 50(b).") (citation

omitted) (citing cases).

Here, one might consider it a close call whether

the district court's prior failure, on its own initiative, to

have barred plaintiffs' Fourteenth Amendment claims because

of our "aimed at the relationship" requirement amounted to

plain error, so as to allow the court to engage later in

post-verdict correction.6 But we need not decide that

question, because clearly the district court's prior failure

to have voluntarily barred plaintiffs' parallel claims under

Article II, 10 of the Puerto Rico Constitution was not

plain error, if, in fact, it was error at all.

Stating that the elements of the two claims were

identical, the court instructed the jury to award only one

set of damages for the plaintiffs' individual claims both

6. While this Circuit has adopted an "aimed at the
relationship" requirement, see Soto v. Flores, 103 F.3d 1056,

1062 (1st Cir. 1997), some other circuits have not, see,

e.g., Kelson v. City of Springfield, 767 F.2d 651, 653-55

(9th Cir. 1985); Estate of Bailey by Oare v. County of York,

768 F.2d 503, 509 n.7 (3d Cir. 1985); Bell v. City of

Milwaukee, 746 F.2d 1205, 1244-45 (7th Cir. 1984), and the

Supreme Court has not yet ruled on this issue.

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8

under the Fourteenth Amendment and the Puerto Rico

Constitution.7 It follows that even if the district court

committed plain error in sending to the jury the plaintiffs'

individual claims under the Fourteenth Amendment of the

United States Constitution, the fact that it did not commit

plain error in allowing the Puerto Rican constitutional prong

of the claims to go forward prevented it from later allowing

defendants' Rule 50(b) motion to invalidate the jury's award

of individual damages to plaintiffs.

In Puerto Rico, there is no precedent of which we

are aware holding that family members of a deceased victim of

lethal force used by the police in violation of Article II,

10 of the Puerto Rico Constitution either have or do not have

a private right of action for their own damages derived from

7. The district court instructed the jury, "The plaintiffs'
claims under the Puerto Rico Constitution essentially mirror
and are the same as those asserted under the United States
Constitution." The court further stated:

Since the elements of this claim [under
Article II, 10 of the Puerto Rico
Constitution] are the same as under the
Federal Constitution, I will not repeat
them here. The verdict form that will be
provided to you after I finish my
instructions will reflect the claims
under both the Federal and Puerto Rico
Constitutions. If you find liability
under both constitutions, or either of
them, the amount of damages you award
will only be provided to the plaintiff
once, not double. That is, no double
recovery may be granted by you.

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9

the victim's injury and death. No Puerto Rico opinion,

however, forecloses such an action, and decisions in other,

related areas of Puerto Rico law indicate that the Puerto

Rico Supreme Court might allow it.

The provisions of the Puerto Rico Constitution are

said to operate ex proprio vigore, without the need for an

effectuating statute comparable to 1983. The Puerto Rico

Supreme Court has written, "The fact that a law has not been

enacted defining privacy rights does not relieve us from our

duty to give effect to that provision, since it is known that

all constitutional provisions are, by their own nature, of

privileged norm under the legislation, self-exercisable."

Quinones v. Commonwealth, 90 P.R.R. 791, 794 (1964).

More recently, the Court wrote:

We have repeatedly held that the
character and primacy of the right of
privacy operate ex proprio vigore, and

may be enforced even between private
individuals. We must reach the same
conclusion with regard to the
constitutional right which protects the
inviolability of the dignity of the human
being, and with regard to that right
which protects every worker against risks
to his personal integrity in his work.
We have also recognized the right to
be compensated for damages caused when a
private citizen encroaches upon one of
these rights.

Arroyo v. Rattan Specialties, 17 O.T.S. 43, 74-75 (1986)

(citations omitted).

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10

Under this rationale, the Puerto Rico Supreme Court

held that the victim of an illegal search had a private right

of action for damages under the Organic Act of Puerto Rico,

even before the Puerto Rico Constitution had come into

existence. See Miguel v. Hernaiz Targa & Co., 51 P.R.R. 568,

574-75 (1937). More recently, the Court has recognized a

private right of action for violations of Article II, 10's

ban on wiretapping, see Puerto Rico Telephone Co. v.

Martinez, 14 O.T.S. 420, 435 (1983); see also Menda Biton v.

Menda, 796 F. Supp. 631, 633 (D.P.R. 1992), and for

violations of Article II, 8's right to protection against

abusive attacks against one's reputation or family life, see

Ayala v. San Juan Racing Corp., 12 O.T.S. 1012, 1019-20

(1982); Colon v. Romero Barcelo, 12 O.T.S. 718 (1982);

Gonzalez v. Cuerda, 88 P.R.R. 121, 130 (1963); see also

Rivera-Flores v. Puerto Rico Telephone Co., 64 F.3d 742, 751

n.9 (1st Cir. 1995) (recognizing that Article II, 1 and 8

operate ex proprio vigore to make violators liable for tort

damages).

Recognition of a private right of action by or on

behalf of the victim of a constitutional wrong does not, of

course, necessarily mean that members of the victim's family

may sue in their individual capacities for damages suffered

as a result of the victim's death or injury. Puerto Rico

tort law, however, allows the close relatives of the victim

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in unlawful death cases to recover for their own damages.

See Hernandez v. Fournier, 80 P.R.R. 93, 96-104 (1957); Caez

v. U.S. Casualty Co., 80 P.R.R. 729, 734-36 (1958); Rojas-

Hernandez v. Puerto Rico Electric Power Authority, 925 F.2d

492, 493 (1st Cir. 1991). As the Puerto Rico Supreme Court

wrote, "Thus, our jurisprudence admits that the next of kin

of the victim are entitled to compensation for the material

and moral damages which they personally suffered, whether or

not they are heirs of the deceased." Hernandez, 80 P.R.R. at

99. The same could well be true in the realm of

constitutional torts as well, although the Puerto Rico courts

have yet to rule definitively. See Colon (allowing relatives

of a murdered man to recover under, inter alia, Article II,

8 of the Puerto Rico Constitution's guarantee of privacy, for

the use of pictures of the deceased's corpse in political

advertisements, without clarifying whether the recovery was

for the breach of the deceased's privacy or the relatives').

The Supreme Court of Puerto Rico seems particularly

likely to recognize a private right of action for victims'

family members in the privacy arena. The Court has declared

that the right of privacy set forth in sections 1, 8, and 10

of Article II of the Puerto Rico Constitution "has a

privileged place in the wide range of rights protected by the

Constitution." Commonwealth v. Puerto Rico Telephone Co., 14

O.T.S. 505, 514 (1983); see also Kerr-Selgas v. American

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12

Airlines, Inc., 69 F.3d 1205, 1213 (1st Cir. 1995)

(recognizing the "great importance" attached by the Puerto

Rico Supreme Court to the Puerto Rico Constitution's

guarantee of the right of privacy and human dignity).

Although the relevant language of Article II, 10

of the Puerto Rico Constitution is identical to that of the

Fourth Amendment to the United States Constitution, the

Puerto Rico Supreme Court has declared that it may interpret

a provision of the Puerto Rico Constitution as being more

protective of the right involved than is the analogous

provision of the United States Constitution. See People v.

Conde Pratts, 15 O.T.S. 411, 416-17 (1984). Thus, the Puerto

Rico Supreme Court could and might decide against adopting an

"aimed at the relationship" test for the Puerto Rico

Constitution even if the United States Supreme Court were to

adopt one for the United States Constitution. The fact that

the First Circuit has adopted such a test under the United

States Constitution is not determinative of the plaintiffs'

rights under the Puerto Rico Constitution.

We conclude, therefore, that, in the absence of any

Puerto Rico authority recognizing an "aimed at the

relationship" requirement, and given Puerto Rico law's strong

policy in favor of compensating the tort victim's relatives

for their independent damages, it is at least questionable

whether the Puerto Rico courts would read an "aimed at the

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relationship" requirement into private actions brought under

Article II, 10 of the Puerto Rico Constitution. It follows

that it was not plain error for the district court to send

the plaintiffs' individual claims under the Puerto Rico

Constitution to the jury. This being so, the district court

later committed error when, following the verdict, it allowed

the defendants' Rule 50(b) motion and dismissed the jury's

damages award, which rested separately on the Puerto Rico

Constitution as well as, doubtfully, on the Fourteenth

Amendment.

Had the defendants wished to preserve the "aimed at

the relationship" issue, in particular under Puerto Rico law,

for ruling by the district court and ourselves, they should

have raised it when they moved for judgment as a matter of

law during the trial under Rule 50(a) or, at least, by way of

objection to the court's jury instruction submitting the

individual plaintiffs' claims to the jury. This they

completely failed to do.

Up until this point, we have assumed that the

district court's power to engage in post-verdict correction

was limited to instances of plain error a very tough

standard in civil cases. It could possibly be argued,

however, that district and appellate courts possess some sort

of additional authority to consider a waived issue on the

merits if it presents an important and novel question of law.

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See City of Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981) (choosing to review a waived issue de novo on its

merits because the district court had done so, the court of

appeals had not disagreed with the district court's

conclusions, and the issue was a novel question of law that

was important and likely to recur); Getty Petroleum Corp. v.

Bartco Petroleum Corp., 858 F.2d 103, 107-08 (2d Cir. 1988)

(examining an issue on the merits despite a party's failure

to object to a jury instruction because the district court

had considered the question on the merits and because the

issue involved was an important and novel question of federal

law, citing City of Newport), cert. denied, 490 U.S. 1006

(1989); Weaver v. Bowers, 657 F.2d 1356, 1361 (3d Cir. 1981)

(relying partly on City of Newport as authority to examine on

the merits a defense of failure to state a claim upon which

relief can be granted which was not raised until after the

conclusion of the trial, stating that "in unusual

circumstances the courts of appeals also have inherent power

to reach issues although not timely raised below"), cert.

denied, 455 U.S. 942 (1982).

The short answer to any contention that the

district court was empowered to rule here by the above City

of Newport principles is that the issue in question is one of

Puerto Rico law on which the Puerto Rico Supreme Court, and

not we or even the United States Supreme Court, has the final

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15

say.8 As such, consideration of the issue on the merits

would "neither . . . promote the interests of justice nor

. . . advance efficient judicial administration." City of

Newport, 453 U.S. at 257.

As we review the defendants' belated objection

under the plain error standard and find no plain error, at

least in respect to the Puerto Rico law claim, we reverse the

district court's post-trial grant of judgment as a matter of

law on the plaintiffs' individual damages claims.

We note that because the district court granted

judgment as a matter of law to the defendants on the

plaintiffs' individual claims, it did not consider the

defendants' request, included within their post-trial motion

under Rules 50(b) and 59, for a remittitur and for a new

trial on these claims. As we have restored the jury's

verdict, we remand to the district court so that it may now

consider these requests to the extent the parties wish to

pursue them.

Vacated and remanded.

8. A longer answer could be that whatever power the Supreme
Court relied upon in City of Newport was limited to itself

and would least likely apply to non-appellate tribunals, such
as the district courts, even assuming it were to apply to
courts of appeal, which remains doubtful, although we do not
rule on the matter. As the Court wrote, "While concluding
that in this unusual case, the interest of justice warrants
our plenary consideration, we express no view regarding the

application of the plain-error doctrine by the Courts of
Appeals." City of Newport, 453 U.S. at 257 n.16 (citation

omitted) (emphasis added).

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