United States Court of Appeals
For the First Circuit
No. 03-2123
REYNALDO RODRÍGUEZ-RODRÍGUEZ, ZENAIDA VEGA-SANTIAGO
and their conjugal partnership; RADAMÉS SANTIAGO-LÓPEZ
and ANGEL O. VÉLEZ-PACHECO,
Plaintiffs, Appellees,
v.
MIGUEL G. ORTIZ-VÉLEZ and KATIA MEDINA-PEDRAZA,
in their personal capacities,
Defendants, Appellants.
__________
SABANA GRANDE MUNICIPALITY; LUIS A. BÁEZ,
Sabana Grande Commissioner; OSVALDO OCASIO-RODRÍGUEZ;
PERSONS X, Y, Z; JANET LNU,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.
*
Of the Northern District of California, sitting by
designation.
Johanna M. Emmanuelli-Huertas with whom Law Offices of
Pedro E. Ortiz-Álvarez, PSC was on brief for appellants.
Francisco R. González with whom F.R. González Law Office was
on brief for appellees.
December 8, 2004
BOUDIN, Chief Judge. This appeal involves a federal
civil rights suit brought by Reynaldo Rodríguez-Rodríguez
("Rodríguez") arising out of an election-week fracas that occurred
on November 2, 2000, in the municipality of Sabana Grande, Puerto
Rico. The defendants included Miguel Ortiz-Vélez ("Ortiz"), the
mayor of Sabana Grande, and municipal police officer Katia Medina-
Pedraza ("Medina"). These two defendants now appeal from the
district court's denial of their motion for summary judgment which
rested in part on their qualified immunity defense.
The underlying facts are far from clear. About all that
the two sides agree upon is that on November 2, 2000, Rodríguez was
driving a sound truck for the NPP (one of Puerto Rico's two main
political parties) near a local headquarters of the PDP (the other
main party); that PDP Mayor Ortiz and multiple persons on the
street engaged in a physical confrontation with Rodríguez during
which Rodríguez hit Ortiz; and that Officer Medina sought to
intervene.
Rodríguez' version of events, drawn from his complaint
and two nearly identical sworn statements made by him,1 are that
rocks were thrown at his vehicle; that when he stopped to inspect
the damage, Medina arrived in her police car and asked why he had
1
These sworn statements, as well as those of other individuals
involved, were attached as exhibits to the parties' summary
judgment filings. Most are sworn witness statements in the related
criminal proceedings against Rodríguez; one consists of criminal
trial testimony.
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stopped; that while he was answering, Ortiz appeared with a mob of
supporters, told Medina that he (Ortiz) would handle the matter,
and then struck Rodríguez in the face with a blackjack; that
Rodríguez managed to hit back at Ortiz, after which Medina struck
Rodríguez with her baton; and that Rodríguez was then attacked by
the crowd on the street.
The aftermath included criminal proceedings against
Rodríguez in state court and fruitless efforts by Rodríguez to have
the mayor criminally charged. In the present lawsuit (but not in
the complaint), Rodríguez asserted that the mayor, while at one of
Rodríguez' criminal trials, was greeted by another official of
Ortiz' PDP party who went to the judge's chambers and who then
left, signaling to the mayor that he (the other official) had "made
the necessary arrangements."
Based on these alleged events, Rodríguez brought the
present action under 42 U.S.C. § 1983 (2000) against Ortiz, Medina,
the municipality of Sabana Grande, the police commissioner and
others. The legal claims asserted in the complaint were various
and not well defined. In essence, Rodríguez claimed that Ortiz and
Medina had each wrongfully struck him, that Ortiz and Medina had
together "initiated, instigated, planned, participated and
directed" the "multitudinous assault and battery" and that they had
both failed to protect Rodríguez when he was being beaten.
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The claim against Medina was framed as one of excessive
force by a police officer. Ortiz, according to Rodríguez, was
acting under color of state law when he allegedly told Medina to
step aside and then struck Rodríguez. Rodríguez also claimed that
the defendants wrongfully failed to protect him from the crowd's
attacks. He further alleged that they violated his substantive due
process rights and his First Amendment rights; the latter claim is
premised on Rodríguez' view that "[t]he reason for the assault and
mob beating was that [Rodríguez] was . . . exercising his First
Amendment [rights] of Political Speech and association."
Rodríguez also alleged that the mayor and the municipal
government failed to properly train and supervise the police and
others and failed to enforce regulations, thereby endangering
individuals' constitutional rights. Finally, Rodríguez has
asserted that Medina and Ortiz obstructed justice by not arresting
Ortiz or prosecuting others who were involved in the incident.
After discovery, the defendants moved for summary
judgment. Their version of what happened, backed by their own
affidavits and affidavits from others, was quite different in
crucial respects. They claimed that Rodríguez had driven with his
sound truck blaring past the PDP party headquarters and that he had
stopped there, dismounted, and got in an altercation with a 15-
-5-
year-old boy that ended with Rodríguez striking the boy and
breaking his glasses.2
Medina's sworn statement said that she had arrived at the
scene after a fight had broken up and that Ortiz approached her and
asked her to file a complaint against Rodríguez for assaulting the
boy. According to Medina, Rodríguez responded by striking the
mayor. She says she tried to arrest Rodríguez, but was unable to
do so because of the large crowd that then attacked him. Unable to
break up the crowd, Medina said that she radioed for assistance and
returned to try to protect Rodríguez from the crowd, which finally
dispersed as paramedics arrived.
In his own sworn statement, the mayor supported Medina's
story (although he didn't observe what she did after he was hit by
Rodríguez). Another witness's story roughly corroborated Medina's-
-although he testified that the first punch was thrown by someone
other than the mayor or Rodríguez and that during the fracas Medina
"tried in, with her baton, taking . . . the ones who [were]
fighting."
In moving for summary judgment on the merits, Ortiz and
Medina argued that Medina had been acting reasonably, that Ortiz
2
The evidence about this fight is rather thin; the boy was the
only witness whose sworn statement described the incident. Ortiz
only said that he heard others complaining that Rodríguez had
assaulted a minor. Medina arrived at the scene after a fight she
did not see, but apparently was told it was between one Julio Ortiz
and someone else.
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had not in any event been a state actor in the encounter, that
neither had been acting in concert with the other, and that the
criminal charges brought thereafter against Rodríguez were filed by
the Puerto Rico Department of Justice and not any of the
defendants. Medina and the mayor quite briefly invoked qualified
immunity, saying that neither had foreseen how events would
develop.
The district judge denied the motions for summary
judgment without explanation and this appeal by Ortiz and Medina
followed. Normally the denial of a motion for summary judgment is
not immediately appealable, but a denial of qualified immunity may
be appealed to the extent the decision is a "purely legal" one,
Dwan v. City of Boston, 329 F.3d 275, 278 (1st Cir. 2003); what
cannot be appealed is a district court's denial of qualified
immunity based on the court's determination that "the pretrial
record sets forth a 'genuine' issue of fact." Johnson v. Jones,
515 U.S. 304, 320 (1995).
A denial of summary judgment because of a genuine issue
of material fact is itself a ruling of law and not a finding of
fact; but Johnson makes clear that this class of legal rulings is
not immediately appealable even if the district court is mistaken
in thinking that there was a genuine issue. Still, a denial of
qualified immunity on such a ground can be appealed immediately on
the issue whether the plaintiffs' own version of events together
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with uncontested facts entitles the defendant to immunity. See
Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Camilo-Robles v.
Hoyos, 151 F.3d 1, 8 (1st Cir. 1998), cert. denied, 525 U.S. 1105
(1999).
Although we could remand for clarification of the
district court's reasoning if we thought it necessary, Camilo-
Robles, 151 F.3d at 8 n.5, the district court almost surely thought
(1) that the two sides' stories were in direct conflict on crucial
points--which they self-evidently are--and (2) that on Rodríguez'
version qualified immunity would not be available. The latter
ruling is reviewable now under Johnson. We are constrained to
agree with the district court that Rodríguez' allegations preclude
qualified immunity at the present time, although only barely so as
to Medina.
Starting with Medina, in principle a constitutional claim
can be made under the Fourth Amendment against a police officer who
uses excessive force during a "seizure." Graham v. Connor, 490
U.S. 386, 395-96 (1989). Even if there is no "seizure" for Fourth
Amendment purposes, a constitutional claim of conscience-shocking
force can be made out against an officer under substantive due
process principles. County of Sacramento v. Lewis, 523 U.S. 833,
843, 846-47 (1998). Assuming that Rodríguez could prove at trial
his own sworn version of events, it is barely possible--even though
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extremely unlikely--that he could establish a claim against Medina
for which qualified immunity would not be available.
The gist of Rodríguez' sworn statement is this: "After
[Ortiz] attacked me I . . . threw a punch to defend myself, hitting
him on his face; then the police woman attacked me with the baton
stabbing at my ribs with the tip . . . ." Rodríguez also describes
falling to the ground and the extensive injuries he sustained in
the melee that followed. It is this sequence of events that
Rodríguez says amounts to deliberate and unjustified use of force
by a police officer.
This is a very dubious claim of excessive force;
Rodríguez has admitted striking the mayor and, whether or not the
mayor struck first, Medina probably would have been acting
reasonably (and thus lawfully) if she used her baton to prevent a
second blow by Rodríguez or hit him by accident in trying to break
up the crowd gathering around him or for any of several other
defensible reasons. See Saucier v. Katz, 533 U.S. 194, 204-05
(2001) (force incident to arrest); see also Cummings v. McIntire,
271 F.3d 341, 345 (1st Cir. 2001) (force not incident to arrest).
Furthermore, for qualified immunity she would not even need to show
that her judgment was correct but only that a reasonable police
officer could in the circumstances have reasonably believed that
this step was not legally excessive. See Saucier, 533 U.S. at 205.
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The difficulty is that Medina has never invoked any set
of circumstances to explain why she, or a reasonable officer in her
place, would have struck Rodríguez. Without mentioning the alleged
baton strike, Medina stated in effect that Rodríguez struck the
mayor and "I proceeded to intervene with the man [Rodríguez] to try
to put him under arrest . . . ." Nothing is said, for example,
about whether she struck him and, if so, why she needed to strike
him incident to an arrest or otherwise. There is no indication
that Rodríguez was poised to strike another blow or to flee or that
the blow was light and accidental. In sum, the materials for a
likely qualified immunity defense may be lying at hand,
see Saucier, 533 U.S. at 204-05, but the construction work has not
been done.
In reaching our conclusions as to Medina, we give no
weight at all to Rodríguez' charges that Medina conspired with
Ortiz, that Medina directed the mob beating Rodríguez or that
Medina wrongfully failed to protect Rodríguez. These conclusory
charges in the complaint have been effectively denied by Medina who
has furnished a sworn plausible, non-conspiratorial and non-
culpable version of her interactions--apart from the alleged baton
strike. By contrast, Rodríguez has not offered any supporting
evidence or detail to buttress most of his claims. This is not a
matter of two conflicting factual claims but of conclusory rhetoric
as against sworn, specific statements.
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This brings us to Ortiz. To establish a free-speech
violation, Rodríguez would have to show both that the mayor struck
Rodríguez in retaliation for the latter's broadcast of political
propaganda or for some other reason connected to Rodríguez'
political affiliation, see El Dia, Inc. v. Rossello, 165 F.3d 106,
109 (1st Cir. 1999), and also that he did so in his role as mayor
rather than in his private capacity, see Yeo v. Town of Lexington,
131 F.3d 241, 248-49, 255 (1st Cir. 1997) (en banc), cert. denied
524 U.S. 904 (1998).3 It may be surprising that such a claim
survived summary judgment, but it is also hard to see what
qualified immunity has to do with the matter.
Qualified immunity applies when an official takes an
action that a reasonable official could believe to be lawful--even
though it turns out not to be, see Dwan v. City of Boston, 329 F.3d
275, 278 (1st Cir. 2003); the easy example is a close-call case of
probable cause to arrest, see, e.g., Abreu-Guzman v. Ford, 241 F.3d
69, 73 (1st Cir. 2001). This qualified immunity protection is
available in First Amendment cases as well, although less easily
invoked. See, e.g., Dirrane v. Brookline Police Dep't, 315 F.3d
65, 70-71 (1st Cir. 2002).
3
Rodríguez also says that the mayor told Medina to strike
Rodríguez; but this charge is not repeated in any sworn statement
by Rodríguez nor supported in any record evidence submitted by
Rodríguez.
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Here, if the mayor did without justification strike
Rodríguez with a blackjack, as Rodríguez has claimed, no reasonable
mayor could believe that this was lawful or entitled him to
qualified immunity. Of course, the mayor may not have struck
Rodríguez at all; but this is a raw factual dispute. The district
court's failure to resolve it in the mayor's favor on summary
judgment is unreviewable short of a final judgment, whether it is
treated as a merits question or dubitante as pertaining to
qualified immunity.
One may well doubt whether, if the mayor did strike
Rodríguez, he did so as a state actor. But if he were a state
actor, he would not enjoy immunity because, as just indicated, the
action would not be even arguably lawful; and if he were not a
state actor, immunity would again not be available because the
purpose of immunity is to protect persons acting in an official
capacity. While the latter conclusion would defeat the federal
civil rights claim, the issue is not properly before us.
What Ortiz and Medina have done on this appeal is to
raise very serious questions whether the excessive force and
mayoral assault claims have any likelihood of success as federal
civil rights claims. We trust that the district judge will not let
the case linger or ignore any further well-founded effort to sort
out this kitchen-sink complaint short of trial. If Rodríguez loses
his case, the defendants are free to apply for attorneys' fees.
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See Fid. Guarantee Mortgage Corp. v. Reben, 809 F.2d 931, 935-36
(1st Cir. 1987).
We have addressed in this decision only the two most
concrete claims made by Rodríguez: the charge of excessive force
against Medina and the free-speech assault claim against Ortiz.
Rodríguez has, as already noted, made other numerous but shadowy
charges, primarily against Ortiz. Neither the charges themselves,
nor any possible defense based on qualified immunity, are
sufficiently distilled by the parties on appeal to warrant any
further comment about them.
The judgment on appeal is affirmed as to the claim by
appellants that the district court erred on an issue of law
concerning qualified immunity. As to whether the district court
made a mistake in believing that factual disputes barred qualified
immunity or in denying summary judgment on the merits, we have no
authority to entertain an interlocutory appeal on either score.
Each side shall bear its own costs on this appeal.
It is so ordered.
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