UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-2108
MARIA TERESA DIAZ, ET AL.,
Plaintiffs, Appellees,
v.
MIGUEL DIAZ MARTINEZ, ET AL.,
Defendants, Appellees,
TOMAS VAZQUEZ RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
John M. Garcia, with whom Jos Javier Santos Mimoso and
Totti, Rodrigues-D az & Fuentes were on brief, for defendant-
appellant.
Peter Berkowitz, with whom Roberto Rold n Burgos was on
brief, for plaintiffs-appellees.
April 24, 1997
SELYA, Circuit Judge. In Johnson v. Jones, 115 S. Ct.
SELYA, Circuit Judge.
2151, 2156-59 (1995), the Supreme Court discussed the
circumstances in which a district court's denial of a public
official's attempt to dispose of a claim for money damages by
means of a pretrial motion asserting qualified immunity might be
immediately appealable. Shortly thereafter, in Stella v. Kelley,
63 F.3d 71, 73-77 (1st Cir. 1995), we applied Johnson and
elaborated upon our understanding of it. The interlocutory
appeal in this case requires us to reexamine Stella in light of
Behrens v. Pelletier, 116 S. Ct. 834, 838-41 (1996). We conclude
that our holding in Stella remains fully intact.
Before discussing the issue of appealability vel non,
we first set the stage. In 1984, Miguel D az Mart nez (Officer
D az) became a member of the Puerto Rico Police Force.1 He
inspired approximately eighteen disciplinary complaints, many of
which involved the profligate brandishing or use of his official
firearm without adequate cause. The pi ce de r sistance occurred
on August 17, 1989, when, after assaulting and threatening to
kill his wife, Officer D az captured a police station at gunpoint
and held several fellow officers hostage. As a result of this
incident, he was cashiered and involuntarily committed to a
mental institution for three weeks.
Little daunted, Officer D az pressed an administrative
appeal. Despite his earlier escapades, he eventually regained
1Although Officer D az is a defendant in the underlying
suit, he is not a party to the appeal.
2
his position on the force. At the time of his reinstatement
(March 25, 1993), and throughout the period material hereto, the
appellant, Tom s V zquez Rivera (V zquez), served as an assistant
superintendent of the police force and the director of its
"Auxiliary Superintendency for Inspections and Disciplinary
Affairs" (having assumed that post in August 1990). In this
capacity, V zquez was responsible, inter alia, for maintaining
administrative complaint records, identifying recidivist officers
(those who repeatedly violated disciplinary standards), and
ensuring that "problem" officers received special training. The
plaintiffs allege that, when Officer D az rejoined the force, the
personnel director ordered an investigation preliminary to
authorizing him to carry a firearm, and that one of the
appellant's subordinates gave D az a clean bill of health,
informing the assigned investigator that D az's file did not
contain any mention of past complaints or any other indicium of
his disquieting history. They also allege that V zquez, in
derogation of his assigned duties, did not maintain up-to-date
files, and, consequently, neither identified D az as a recidivist
officer nor recommended that he undergo remedial training. As a
result, Officer D az returned to duty without enduring any
probationary period, without receiving any remedial training,
and, after a delay to permit the completion of the personnel
director's investigation, without having any restrictions on his
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right to carry a firearm.2
On his second day of armed duty, September 8, 1993,
Officer D az was stationed at the Barbosa Public Housing Project,
a location which the police regarded as a high-tension area.
That afternoon, while on guard duty, he accosted the plaintiffs'
decedent, Jos Manuel Rosario D az (Jos ), a 19-year-old resident
of the project, and ordered him to retrieve identification
documents from his apartment. When Jos did not comply with
sufficient alacrity, Officer D az shouted obscenities at him.
Jos 's sister, Mar a Rosario D az (Mar a), attempted to
intervene. A scuffle ensued. Officer D az drew his police
revolver, fired a bullet at Mar a (wounding her), and then shot
and killed Jos .
In due season, Mar a and other family members brought
suit under 42 U.S.C. 1983 (1994). They alleged that Officer
D az and several supervisory police officials, including V zquez,
had violated Mar a's and Jos 's constitutional rights. V zquez
moved for summary judgment, raising, inter alia, a qualified
immunity defense. The district court denied his motion. V zquez
now prosecutes this interlocutory appeal.
Section 1983 provides for a private right of action
against public officials who, under color of state law, deprive
individuals of rights declared by the Constitution or laws of the
United States. Nonetheless, a public official accused of civil
2For purposes of his summary judgment motion, described
infra, V zquez did not contest these allegations, and we
therefore must accept them as true.
4
rights violations is shielded from claims for damages under
section 1983 as long as his conduct did not violate rights that
were "clearly established" under the Constitution or under
federal law. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19
(1982); Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992).
For purposes of this defense, a right is clearly established if
the "contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640
(1987).
Interlocutory orders (such as orders denying pretrial
motions to dismiss or for summary judgment) ordinarily are not
appealable as of right at the time they are entered. See 28
U.S.C. 1291 (1994). But where, as here, a defendant seeks the
shelter of qualified immunity by means of a pretrial motion and
the nisi prius court denies the requested relief, a different
result sometimes obtains. If the pretrial rejection of the
qualified immunity defense is based on a purely legal ground,
such as a finding that the conduct described by the plaintiff,
assuming it occurred, transgressed a clearly established right,
then the denial may be challenged through an interlocutory
appeal. See Johnson, 115 S. Ct. at 2155-56. Conversely, "a
defendant, entitled to invoke a qualified-immunity defense, may
not appeal a district court's summary judgment order insofar as
that order determines whether or not the pretrial record sets
forth a `genuine' issue of fact for trial." Id. at 2159. The
5
dividing line that separates an immediately appealable order from
a nonappealable one in these purlieus is not always easy to
visualize. In Stella, we attempted to illuminate it:
Thus, on the one hand, a district court's
pretrial rejection of a proffered qualified
immunity defense remains immediately
appealable as a collateral order to the
extent that it turns on a pure issue of law,
notwithstanding the absence of a final
judgment. On the other hand, a district
court's pretrial rejection of a qualified
immunity defense is not immediately
appealable to the extent that it turns on
either an issue of fact or an issue perceived
by the trial court to be an issue of fact.
In such a situation, the movant must await
the entry of final judgment before appealing
the adverse ruling.
Stella, 63 F.3d at 74 (citations omitted). Under Johnson and
Stella, then, a defendant who, like V zquez, has unsuccessfully
sought summary judgment based on qualified immunity is permitted
to appeal the resultant denial on an interlocutory basis only to
the extent that the qualified immunity defense turns upon a
"purely legal" question.
Behrens marks the Supreme Court's latest effort to shed
light upon the timing of qualified immunity appeals. There, the
Court noted that "[d]enial of summary judgment often includes a
determination that there are controverted issues of material
fact" and admonished that Johnson "does not mean that every such
denial of summary judgment is nonappealable." Behrens, 116 S.
Ct. at 842. Rather, when a court, in denying a motion for
summary judgment premised on qualified immunity, determines that
certain conduct attributed to a defendant, if proven, will
6
suffice to show a violation of clearly established law, the
defendant may assert on interlocutory appeal "that all of the
conduct which the District Court deemed sufficiently supported
for purposes of summary judgment met the Harlow standard of
`objective legal reasonableness.'" Id. (quoting Harlow). To
this extent, Behrens places a gloss on Johnson and reopens an
appellate avenue that some had thought Johnson foreclosed.
Still, this court anticipated the Behrens gloss in Stella, where
we wrote that a summary judgment "order that determines whether
certain given facts demonstrate, under clearly established law, a
violation of some federally protected right" may be reviewed on
an intermediate appeal, Johnson notwithstanding, without awaiting
the post-trial entry of final judgment. Stella, 63 F.3d at 74-
75. Thus, Stella survives the emergence of Behrens fully intact
and remains the law of this circuit.
The appeal at hand withers in the hot glare of these
precedents. Under section 1983, a supervisor may be found liable
on the basis of his own acts or omissions. See Maldonado-Denis
v. Castillo- Rodriguez, 23 F.3d 576, 581-82 (1st Cir. 1994).
Such liability can arise out of participation in a custom that
leads to a violation of constitutional rights, see, e.g., id. at
582 (citing other cases), or by acting with deliberate
indifference to the constitutional rights of others, see, e.g.,
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
1989) (citing other cases). The plaintiffs' case against V zquez
hinges on his alleged deliberate indifference; they claim, in
7
essence, that if he had minded the store, the shootings would not
have transpired because Officer D az, given his horrendous
record, would not have been rearmed (or, at least, would not have
been rearmed without first having been retrained and
rehabilitated), and therefore, that the tragic events of
September 8 would not have occurred.
V zquez's motion for brevis disposition challenged this
theory, legally and factually. In adjudicating it, the district
court made a binary determination. First, the court ruled that a
reasonable official in V zquez's position would have known that
the "failure to take . . . remedial actions concerning [a rogue
officer] could create supervisory liability." This is a pure
conclusion of law as to which, in the qualified immunity context,
an immediate appeal lies. See Behrens, 116 S. Ct. at 839;
Stella, 63 F.3d at 77; see also Mitchell v. Forsyth, 472 U.S.
511, 528 n.9 (1985) (acknowledging that the question of whether
the conduct attributed by a plaintiff to a particular defendant
violates a clearly established right is a "purely legal"
question).
Nonetheless, we agree with the lower court that the
applicable law was clearly established; it is beyond serious
question that, at the times relevant hereto, a reasonable police
supervisor, charged with the duties that V zquez bore, would have
understood that he could be held constitutionally liable for
failing to identify and take remedial action concerning an
officer with demonstrably dangerous predilections and a checkered
8
history of grave disciplinary problems. See Gutierrez-Rodriguez,
882 F.2d at 562-64; see generally Maldonado-Denis, 23 F.3d at 582
(explaining that a showing of gross negligence on a supervisory
official's part "can signify deliberate indifference and serve as
a basis for supervisory liability if it is causally connected to
the actions that work the direct constitutional injury"). To the
extent that V zquez's appeal seeks to contest this verity, it is
baseless.
Having disposed of the purely legal question, we are
left with V zquez's asseveration that the district court erred in
denying his motion for summary judgment because, regardless of
legal theory, the evidence was insufficient to establish
deliberate indifference on his part, and, thus, he was entitled
(at the least) to qualified immunity. But Judge Laffitte
rejected this argument on the basis that the record contained
controverted facts and that, if a factfinder were to resolve
those disputes favorably to the plaintiffs, he could then find
that V zquez's supervision of the disciplinary affairs bureau was
so pathetic that his conduct constituted deliberate indifference
to the plaintiffs' rights.3 Since V zquez does not argue that
3This rejection was factbound. In denying V zquez's motion
for brevis disposition, Judge Laffitte, citing various exhibits,
commented that "the record is replete with evidence that [Officer
D az's] disciplinary file was poorly maintained." The judge then
pointed to evidence indicating "that many of the police
department's disciplinary files on its officers were incomplete,"
and noted specifically evidence to the effect "that V zquez
failed to maintain [Officer D az's] disciplinary records, failed
to identify him as an officer [who had engaged in] repetitive
conduct, and failed to refer him for training." Judge Laffitte
further observed that, had the file been properly maintained,
9
the facts asserted by the plaintiffs, even if altogether true,
fail to show deliberate indifference he argues instead what his
counsel termed at oral argument "the absence of facts," i.e.,
that the facts asserted by the plaintiffs are untrue, unproven,
warrant a different spin, tell only a small part of the story,
and are presented out of context the district court's
determination is not reviewable on an interlocutory appeal. See
Behrens, 116 S. Ct. at 842; Johnson, 115 S. Ct. at 2156-59;
Berdec a-P rez v. Zayas-Green, F.3d , (1st Cir. 1997)
[No. 96-1490, slip op. at 3]; Santiago-Mateo v. Cordero, F.3d
, (1st Cir. 1997) [No. 96-1688, slip op. at 3-5]; Stella,
63 F.3d at 75-77.
We need go no further. To the extent that V zquez's
challenge to the order denying summary judgment is ripe for
review, it is impuissant.
Affirmed. Costs to appellees.
Affirmed. Costs to appellees.
Officer D az likely would have been evaluated as unfit to return
to regular duty. In the court's view, this (and other) evidence,
taken in the light most complimentary to the plaintiffs, was
"sufficient to create a genuine issue of material fact as to
whether [V zquez] was deliberately indifferent and whether this
failure to maintain an accurate file on [Officer D az] caused
[the plaintiffs'] injuries."
10