United States Court of Appeals
For the First Circuit
No. 03-2627
MARGARET TORRES-RIVERA; ERNID GOMEZ-TORRES,
Plaintiffs, Appellees,
GUADALUPE GOMEZ-CORA; TALINA A. FERNANDEZ-TORRES; RAMONA CORA-
HUERTAS; ANGEL SANTIAGO-CORA,
Plaintiffs,
v.
CHARLES O'NEILL-CANCEL,
Defendant, Appellant,
ERNESTO ESPADA-CRUZ; JOHN DOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Selya, and Lynch, Circuit Judges.
Julio Cesar Alejandro Serrano, with whom William Vazquez
Irizarry, Secretary of Justice, Jo Ann Estades, Director of Federal
Litigation Division, Department of Justice, Eileen Landron
Guardiola, Eduardo A. Vera Ramirez, and Landron & Vera, LLP were on
brief, for appellant.
David A. Cerda, with whom Sigfredo A. Irizarry-Semidei was on
brief, for appellees.
May 3, 2005
LYNCH, Circuit Judge. A fifteen-year old boy, Ernid
Gomez, was beaten by an on-duty Puerto Rico Police officer, Ernesto
Espada-Cruz ("Espada"). Another law enforcement officer at the
scene, appellant Charles O'Neill-Cancel ("O'Neill"), had restrained
Ernid against a wall by training his gun on the boy. O'Neill also
pointed the gun at Ernid's mother, Margaret Torres-Rivera ("Torres-
Rivera"), when she came out to see what was happening, and kept her
from interfering. While O'Neill did not himself beat Ernid,
neither did he stop Espada from beating the child. Espada was
convicted of criminal assault on Ernid in a Puerto Rico court.
Ernid, his mother, and Angel Santiago-Cora, another boy
who was beaten by Espada, then brought a federal civil rights
action under 42 U.S.C. § 1983 for damages against Espada and
O'Neill. A jury found Espada liable for use of excessive force.
The jury also found O'Neill liable under section 1983 for his
involvement with Espada's excessive use of force against Ernid and
also, under Puerto Rico law, for negligently injuring Torres-Rivera
during the assault. O'Neill appeals from the jury verdict, both as
to liability and damages.
We affirm. In doing so, we reject O'Neill's argument
that this excessive force case should not be viewed under the
Fourth Amendment objective-reasonableness test, see Graham v.
Connor, 490 U.S. 386, 395 (1989), but rather under a Fourteenth
Amendment "shock the conscience" test, see County of Sacramento v.
-2-
Lewis, 523 U.S. 833, 854 (1998). We also reject O'Neill's argument
that the Fourth Amendment excessive force claim is actionable only
in arrest or pretrial detention situations.
I.
We recite the facts in the light most favorable to the
jury verdict. See Correa v. Hosp. San Francisco, 69 F.3d 1184,
1188 (1st Cir. 1995).
On August 29, 1998, at about 9:30 PM, the Puerto Rico
Treasury Department and Puerto Rico Police engaged in a joint
operation to inspect businesses at an intersection in Arroyo,
Puerto Rico, for compliance with Treasury Department regulations.
After the inspection, the officers issued traffic tickets to
drivers at the intersection. Appellant O'Neill, a Treasury
Department agent, and defendant Espada, a police officer, both
participated in the operation.
While the officers were issuing traffic tickets, two
children about 300 feet away from the intersection shouted
obscenities at the ticket writing officers. While the other
officers remained at the intersection, Espada, who was wearing
police uniform, walked up the street to confront the shouting
youths. O'Neill, who was in plain clothes, got into a minivan and
drove after Espada to provide backup.
Ernid was standing with his cousin in front of his
grandmother's house across from the shouting children. He was not
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one of the shouting children. The shouting children hid as Espada
and O'Neill approached. O'Neill drove to Ernid's house, got out of
the van, and pointed his gun at Ernid and his cousin, ordering them
to put themselves against the wall. Ernid testified, "And I see
[O'Neill] getting out of the minivan, point[]s [the gun] at us, and
tells us to get up against the wall and that if we were to move or
to run, he would shoot at us." O'Neill stood about ten feet from
Ernid. Espada walked up the street and shouted, "Come over here
and tell me that."
Angel Santiago-Cora, an eighteen-year old who lived up
the street from Ernid's grandmother's house, walked up and saw
O'Neill pointing the gun at Ernid and his cousin. Scared, he
retreated back around a street corner so that he was out of sight
but only about thirty feet from O'Neill. When he saw officer
Espada, who, unlike O'Neill, was wearing a police uniform, he
decided to approach him, but Espada pulled out his nightstick and
beat Angel five or six times with the nightstick. As he was hit,
Angel screamed, "Ow, ow, ow, why are they hitting me, I just got
here, I just got here. I don't know anything, ow, ow, ow, why are
you hitting me?" Ernid, still facing the wall, heard the screams.
Ernid's mother, Torres-Rivera, who was inside Ernid's
grandmother's house, heard Angel screaming. She went outside and
shouted, "What happened?" Espada stopped beating Angel and walked
around the corner to the front of the house.
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As Ernid's mother, Torres-Rivera, walked towards the
street from the house, O'Neill turned the gun (which until then was
still pointed at Ernid and his cousin) and pointed it at Torres-
Rivera's face. Torres-Rivera immediately raised her hands and
said, "Oh my God, what's happening?" Espada at this time was
speaking with an unidentified third officer, who told Espada that
Torres-Rivera was a security guard. Espada walked up to Torres-
Rivera and said to her, "I don't care if you are a guard." Torres-
Rivera asked Espada to explain what was happening with Ernid. At
this point, O'Neill lowered his gun, but kept it out and did not
put it away in his holster. Torres-Rivera kept her hands up the
entire time because she was afraid.
Espada told Torres-Rivera that the boys (Ernid and his
cousin) were shouting profanities at the officers. Torres-Rivera
said that if that were true she would beat Ernid herself in front
of the officers. Both Ernid and Ernid's sister, Talina, who was
also at the scene, denied that Ernid shouted at the police.
Espada then walked over to Ernid, and, with his
nightstick, hit Ernid in the testicles. Ernid "twisted down and
bent over a little bit, but [he] was afraid to move . . . because
[he] was told that if [he] was to move or run, they would shoot at
[him]." Torres-Rivera watched as Espada beat her child. She did
not dare to intervene because O'Neill still had his gun out. She
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did not even lower her hands. She looked at O'Neill and said,
"Don't hit him. Don't hit my boy. It wasn't him."
Espada continued to hit Ernid three more times in the
shoulders and the back. Espada taunted Ernid while he was beating
him, saying "shout now" and "shout, you're a tough guy."
Throughout, O'Neill stood where he was and did not intervene to
stop Espada, and kept his gun out. Ernid and Torres-Rivera were
afraid to move, mindful of O'Neill's gun. After these blows,
Espada searched Ernid, "in a very brutal way, striking [him] really
hard, . . . slapping [him] on the way down [his] body." Espada
found nothing on Ernid.
At this point, Ernid's grandmother, who had come out of
the house sometime during the incident, moved Torres-Rivera out of
the way and begged Espada to stop hitting Ernid. Seeing Ernid's
grandmother, who Angel knew well, Angel then limped from around the
corner, yelling to Ernid's grandmother that he had been hit, and
then fell at her feet. Espada turned his attention from Ernid to
Angel and taunted Angel by saying, "Get up off the ground, you
jerk, you wuss, you." Angel then got up. A group of officers
arrived at that point, many of them laughing at the scene. Angel's
brother then arrived and after hearing that Angel had been beaten,
told Angel to get Espada's badge number. After Angel asked Espada
for his badge number, Espada asked Angel if he wanted to get hit
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again. O'Neill then drove off, and the remaining officers,
including Espada, left on foot.
Afterwards, Torres-Rivera and her sister took Ernid to
the emergency room. Ernid told Torres-Rivera, "Mami, it hurts me
a lot." The emergency room doctor examined Ernid. Ernid's "left
testicle was all swollen, red, with . . . a hematoma." The medical
records also indicated trauma in Ernid's left shoulder. For two to
three weeks after the beating, Ernid felt pain when urinating or
walking, and he did not move much due to the pain. Ernid developed
dysuria,1 which lasted long after the beating. At the emergency
room, Torres-Rivera herself had to be given tranquilizers as a
result of the trauma.
Ernid's grades declined after the beating. Ernid and
Torres-Rivera also saw a psychologist for therapy for five or six
sessions. Even close to five years after the incident, Ernid
testified during trial that he was scared around police officers.
"I see a police officer, I get nervous, I get scared and I go far
away from them. I don't want to be close to where the cops are."
O'Neill and his fellow officers did not file a report
about the incident. The plaintiffs brought state criminal charges
against the officers. At a police line-up shortly after the
incident in response to these charges, the plaintiffs identified
1
Dysuria is defined as "difficult or painful discharge of
urine." Merriam Webster's Collegiate Dictionary 361 (10th ed.).
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Espada. The plaintiffs were also called to identify O'Neill at a
line-up shortly after the incident, but the police were unable to
go through with the identification because O'Neill was not
represented by an attorney. As a result, the plaintiffs were not
able to identify O'Neill until a separate line-up two months after
the beating. By that time, O'Neill had grown long hair and a full
beard and the plaintiffs failed to identify him. At the time of
the beating, O'Neill was clean shaven and had short hair.
Espada was convicted of criminal assault and battery.
The plaintiffs then brought this federal suit under 42 U.S.C. §
1983 in August, 1999, alleging that Espada and O'Neill violated
their rights under the First, Fourth, Fifth, and Fourteenth
Amendments to the U.S. Constitution. The plaintiffs also brought
supplemental Puerto Rico tort law claims.
Jury trial was held from August 6 through August 13,
2003.2 Neither Espada nor counsel representing him appeared for
trial. O'Neill's defense strategy at trial was to blame Espada.
He argued that Espada was rightfully convicted for criminal assault
and did injure the plaintiffs, but that O'Neill did not see or hear
Espada's assault and so he should not be held responsible for
Espada's acts.
2
Before trial, O'Neill sought summary judgment on the ground,
inter alia, that he was entitled to qualified immunity. The
district court denied summary judgment.
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The trial judge gave the following instruction to the
jury:
The claim of Ernid Gomez against O'Neill
arises from the alleged failure of O'Neill to
intervene to protect him from Espada's
physical assault.
. . .
Members of the jury, citizens of the United
States are protected against the use of
excessive force by the Fourth Amendment of the
[C]onstitution of the United States. The
reasonableness of a particular seizure depends
not only on when it is made but also on how it
is carried out.
. . .
The reasonableness of the particular use of
force must be judged from the perspective of a
reasonable officer on the scene.
. . .
The question is whether the officer's actions
are objectively reasonable in light of the
facts and circumstances confronting the
officer, without regard to the underlying
intent or motivation of the officer.
. . .
Law enforcement officers, members of the jury,
sometimes have an affirmative duty to
intervene, which is enforceable under the due
process clause of the Fourth Amendment. For
example, an officer who is present at the
scene of a detention or an arrest, who is
aware of what is going on and fails to take
reasonable steps to protect the victim of
another officer's use of excessive force, can
be held liable under Section 1983 of the Civil
Rights Act[] for his nonfeasance, provided
that that officer, the onlooker officer, had a
realistic opportunity to prevent the other
officer's actions.
A constitutional duty to intervene may
also arise if the onlooker officer is
instrumental in assisting the actual attacker
or aggressor to place the victim in a
vulnerable position.
-9-
The jury found, by special verdict form, that Espada
violated Ernid's Fourth Amendment rights by using excessive force,
and awarded Ernid $100,000 in compensatory damages.3 The jury also
found that O'Neill violated Ernid's Fourth Amendment rights by
failing to intervene during the use of excessive force, and awarded
Ernid $100,000 in compensatory damages. Lastly, the jury found
that Espada and O'Neill negligently caused damage to Torres-Rivera
under Puerto Rico law and awarded her $20,000 in compensatory
damages from each defendant.
O'Neill timely appealed.
II.
On appeal, O'Neill argues: 1) the district court erred by
allowing the plaintiffs to add the failure to intervene claim
against O'Neill without adequate prior notice; 2) the district
court's jury instructions were erroneous as to the failure to
intervene claim because a) the instructions used the Fourth
Amendment "objective reasonableness" standard rather than the
Fourteenth Amendment "shock the conscience" standard, and b) the
instructions failed to include all the elements of a failure to
intervene claim and thus did not limit the damages for which
O'Neill should be held liable; 3) the district court erred by
denying O'Neill qualified immunity; and 4) the verdict against
3
The jury also found that Espada violated Angel's Fourth
Amendment rights by using excessive force and awarded $100,000 in
compensatory damages.
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O'Neill for negligence with respect to Torres-Rivera was not
adequately supported by evidence.
A. Adequate Notice of the Failure to Intervene Claim
O'Neill argues that he was unfairly surprised by the
failure to intervene claim against him, which he represents was a
"last-minute amendment to the pleadings . . . through argument at
trial" that "had the effect of preventing . . . O'Neill from
conducting significant discovery on the failure to intervene
claim." He argues that "allegations in the complaint, as well as
the subsequent pleadings filed with the Court failed to give
O'Neill any reasonable notice that he would be facing trial for
failing to intervene with Espada's beating of Ernid Gomez."
This contention is without merit, in light of the record.
The allegations in the complaint were that Espada and O'Neill,
"acting under color of law, illegally and maliciously assaulted,
pointed a firearm, threatened with serious bodily harm and
terrorized coplaintiffs . . . for no valid reason." Although the
complaint did not specify the role of each defendant, the pleadings
are sufficient under liberal notice pleading standards to give
notice to O'Neill that the plaintiffs were alleging that O'Neill
was present during, and contributed to, Espada's beating of Ernid.
There is no heightened pleading requirement for section 1983 civil
rights claims. See Leatherman v. Tarrant County Narcotics
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Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993);
Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61,
66-67 (1st Cir. 2004).
The plaintiffs also clearly informed O'Neill of their
failure to intervene claim in pretrial motions. For example, in
March 2001, seventeen months before trial, the plaintiffs' response
to O'Neill's second motion for summary judgment stated that O'Neill
was "the government officer who stood by Espada-Cruz while the
brutal acts were committed upon plaintiffs" and that O'Neill "aided
and assisted Espada-Cruz's brutal attacks on the plaintiffs,
instead of preventing them" (emphasis added). If O'Neill failed to
pursue his defense to that theory in the ensuing seventeen months,
as he now asserts, he has only himself to blame.
Other parts of the record further undermine O'Neill's
claim. During a July 31, 2002 status conference held in chambers,
the plaintiffs outlined the merits of their failure to intervene
claim against O'Neill and cited case law in support of their
position.
O'Neill's appellate argument that he was surprised by the
failure to intervene claim is further belied by the fact that in
his January 23, 2003 motion for summary judgment, he devoted an
entire section to addressing the failure to intervene claim, making
many of the same arguments he now makes on appeal. There was no
lack of notice.
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B. Jury Instructions
O'Neill argues that the trial judge erred by not
instructing the jury properly on the failure to intervene claim
against him in that: 1) the trial judge used the Fourth Amendment
"objective reasonableness" standard rather than the Fourteenth
Amendment "shock the conscience" standard; and 2) the trial judge
did not include all the elements of a failure to intervene claim in
the instructions, and thus did not limit the damages for which
O'Neill should be held liable.
In the proceedings below, O'Neill did not submit jury
instructions on the failure to intervene claim. At the pre-charge
jury instruction conference, O'Neill argued that the proposed jury
instructions on the failure to intervene claim were inadequate,
but there was a great deal of confusion as to exactly what were
O'Neill's precise requests for modification to the instructions.
O'Neill did not submit any specific language he wished to be
included, and only made an oblique reference to the "shock the
conscience" standard. After the jury charge and before jury
deliberations, the court asked O'Neill if there were any objections
to the jury instructions. O'Neill responded in the negative.
At the time of the jury trial, the version of Fed. R.
Civ. P. 51 in effect read, "No party may assign as error the giving
or the failure to given an instruction unless that party objects
thereto before the jury retires to consider its verdict." Fed. R.
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Civ. P. 51 (2003 ed.).4 Our interpretation of this Rule has been
strict. Connelly v. Hyundai Motor Co., 351 F.3d 535, 544 (1st Cir.
2003). In this circuit, "[e]ven if the initial request for an
instruction is made in detail, the requesting party must object
again after the instructions are given but before the jury retires
for deliberations." Foley v. Commonwealth Elec. Co., 312 F.3d 517,
521 (1st Cir. 2002). By failing to object when invited to do so by
the district court, O'Neill failed to preserve his claims of error
as to the jury instructions.5
When an objection to a jury instruction is forfeited, our
review is for plain error. Connelly, 351 F.3d at 545. "To obtain
relief under this standard, the party claiming error must show (1)
an error, (2) that is plain (i.e., obvious and clear under current
law) (3) that is likely to alter the outcome, and (4) that is
sufficiently fundamental to threaten the fairness or integrity or
4
Jury trial in this case was conducted on August 6-13, 2003.
Rule 51 was amended on March 27, 2003, to be effective December 1,
2003. Fed. R. Civ. P. 51 (2005 ed.). At the time of the trial,
the pre-amendment version of the Rule was in effect.
5
The parties discussed the jury instructions with the court
immediately before the jury charge on August 12, 2003. During the
discussion, O'Neill made references to the effect that the district
court had already ruled on some of his objections at an earlier
"informal charge conference" on August 11, and he wanted to
reiterate those objections "[b]riefly for the record." The court
asked O'Neill to state them specifically for the record. To the
extent O'Neill wishes us to consider the "informal charge
conference" we cannot because no transcript has been provided. In
any event, he still failed to object post-charge and pre-
deliberations.
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public reputation of the judicial process." Id. There was no
plain error here.
1. Whether the district court erred in not using the "shock the
conscience" standard.
O'Neill argues that the trial court should have
instructed the jury that the claim against O'Neill for failure to
intervene in the excessive use of force was governed by the "shock
the conscience" standard applicable to substantive due process
claims under the Fourteenth Amendment, not the "objectively
reasonable" standard applicable to Fourth Amendment claims.
O'Neill grounds this argument on the premise that he was
"faced with split-second decisions . . . when the circumstances
[were] still developing" during the course of an investigatory
stop. O'Neill cites County of Sacramento v. Lewis, 523 U.S. 833
(1998), which held that the death of a motorcyclist allegedly
caused by a high-speed police chase was not the result of a search
or seizure under the Fourth Amendment, id. at 843, and that "when
unforeseen circumstances demand an officer's instant judgment," a
substantive due process violation under the Fourteenth Amendment
requires official action to shock the conscience, id. at 853-54.
The plaintiffs respond that Graham v. Connor, 490 U.S. 386 (1989),
made it clear that "all claims that law enforcement officers have
used excessive force -- deadly or not -- in the course of an
arrest, investigatory stop, or other 'seizure' of a free citizen
should be analyzed under the Fourth Amendment and its
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'reasonableness' standard, rather than under a 'substantive due
process' approach," id. at 395 (second emphasis added).
Neither Lewis nor Graham dealt with a failure of one
police officer to intervene in the excessive use of force by
another officer in his presence. A claim of "failure to intervene"
arises in a variety of factual circumstances and the phrase by
itself cannot determine either whether a duty arises or how claims
of violation of the duty are to be evaluated. In Martinez v.
Colon, 54 F.3d 980 (1st Cir. 1995), this court discussed the
fundamental distinction between the duty of an officer to intervene
when a private actor is inflicting the violence and the officer's
duty to intervene when another police officer (acting as a police
officer) inflicts the violence. Id. at 985-86. As DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189
(1989), held, "a State's failure to protect an individual against
private violence simply does not constitute a violation of the Due
Process Clause." Id. at 197. This is "because the purpose of the
Due Process Clause is to protect the people from the state, not to
ensure that the state protects them from each other." Rivera v.
Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005). As Martinez
explains, the DeShaney substantive due process rule6 does not apply
6
As we recognized in Davis v. Rennie, 264 F.3d 86 (1st Cir.
2001), a "set of unique rules has developed" for involuntarily
committed mental patients. Id. at 98 (quoting Hasenfus v.
LaJeunesse, 175 F.3d 68, 71 (1st Cir. 1999)).
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where it is an on-duty police officer acting under color of law
whose violence causes the injury. See Martinez, 54 F.3d at 985.
Even when the claim is that a state actor (not a private
person) causes the injury, that alone does not tell us enough to
make dispositive judgments. There are a variety of state actors
and a variety of settings within which they act. A police officer
who is actively engaged in a search or seizure, as here, is subject
to the restrictions of the Fourth Amendment. Such an officer's
actions are evaluated differently than the conduct of a police
supervisor who is not on the scene and does not engage in the
search or seizure but is later alleged to have violated a duty to
have trained the officers not to engage in violence which led to
another officer's violation of the injured person's rights. There
are very different, specific standards applied under the Fourteenth
Amendment for such supervisory liability claims, which are
different from either the Fourth Amendment or the DeShaney
standards. We made this point in Wilson v. Town of Mendon, 294
F.3d 1, 6 (1st Cir. 2002). See also Camilo-Robles v. Hoyos, 151
F.3d 1, 6-7 (1st Cir. 1998); Maldonado-Denis v. Castillo-Rodriguez,
23 F.3d 576, 581-82 (1st Cir. 1994).
The claim here is a straightforward Fourth Amendment
excessive force claim.
Where . . . the excessive force claim arises
in the context of an arrest or investigatory
stop of a free citizen, it is most properly
characterized as one invoking the protections
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of the Fourth Amendment, which guarantees
citizens the right "to be secure in their
persons . . . against unreasonable . . .
seizures" of the person.
Graham, 490 U.S. at 394.
At trial, the plaintiffs' case, under the rubric of
"failure to intervene," was predicated on two theories, each with
support in the record.7 The jury instructions given reflected
these two alternate grounds for the "duty to intervene": first,
officers may have an affirmative duty to intervene arising from
being present at the scene, aware of the use of excessive force by
another officer, and able to stop it; and second, "[a]
constitutional duty to intervene may also arise if the onlooker
officer is instrumental in assisting the actual attacker or
aggressor to place the victim in a vulnerable position." O'Neill's
arguments fail under both theories.
This first theory in the instructions expressed the
classic paradigm of police failure to stop the excessive use of
force by a fellow officer, which we addressed in Gaudreault v.
Municipality of Salem, 923 F.2d 203 (1st Cir. 1990). The plaintiff
there sued four police officers who did not actively participate in
7
The parties were clearly aware of the two theories for
liability. Prior to final arguments, the court even discussed with
the parties the possibility of an instruction that O'Neill may be
found to be jointly liable with Espada if O'Neill "had a realistic
opportunity to intervene and didn't . . . and aided and abetted,
assisted the aggressor in harming him." The closing arguments also
reflected these two theories.
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another unidentified officer's assault on the plaintiff under
detention. Id. at 207. The court explained that "[a]n officer who
is present at the scene and who fails to take reasonable steps to
protect the victim of another officer's excessive force can be held
liable under section 1983 for his nonfeasance." Id. at 207 n.3.
No liability for the non-participating bystander officers existed
there because "the attack came quickly and was over in a matter of
seconds," giving the officers no "'realistic opportunity' to
prevent an attack." Id. (citing O'Neill v. Krzeminski, 839 F.2d 9,
11-12 (2d Cir. 1988)).
O'Neill attempts to take advantage of Gaudreault by
saying that he had no opportunity to intervene. A jury, though,
could and did find that O'Neill had such an opportunity. Based on
the evidence, the jury could find that O'Neill was aware of
Espada's earlier beating of Angel, and had sufficient time to
intervene then, before Espada assaulted Ernid. The jury could also
find that the entire episode of Espada's beating of Ernid lasted
much longer than "a matter of seconds," giving O'Neill, who was
only ten feet away, both time and opportunity to prevent or stop
the beating.
More importantly, for present purposes, if there was no
opportunity for the non-participating officer to stop the excessive
use of force, then O'Neill would succeed on the excessive use of
force claim. See id. But that would not convert it from a Fourth
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Amendment claim to a Fourteenth Amendment claim. A fair reading of
the case law convinces us that O'Neill was not entitled to a "shock
the conscience" instruction for this first theory of his liability.
That conclusion is even clearer under the second theory
-- that O'Neill was a participant and enabler of the attack. The
joint participant basis for liability is well established in the
section 1983 case law. See Martinez, 54 F.3d at 985 n.4 ("A
constitutional duty to intervene may also arise if onlooker
officers are instrumental in assisting the actual attacker to place
the victim in a vulnerable position. In such a scenario, the
onlooker officers and the aggressor officer are essentially joint
tortfeasors and, therefore, may incur shared constitutional
responsibility." (citations omitted)). A "shock the conscience"
instruction would not be appropriate for this theory of joint
participation.
The adequate opportunity to intervene instruction which
O'Neill did receive is less pertinent on this second theory, since
the issue would not be his failure to intervene, but his
participation. See Wilson, 294 F.3d at 15 (explaining that joint
participation instruction depends on evidence of joint enterprise).
As applied to this second theory, the adequate opportunity to
intervene is related to the concept that officers must, under some
circumstances, make judgments without any time for reflection.
That is the Graham instruction that "[t]he calculus of
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reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments -- in
circumstances that are tense, uncertain, and rapidly evolving --
about the amount of force that is necessary in a particular
situation." Graham, 490 U.S. at 396-97. That concept was also
contained in the court's instructions. There was no error in
instructing the jury under a Fourth Amendment standard.
2. Whether the district court failed to instruct the jury on
all the elements of the failure to intervene claim and so
failed to limit the damages award against O'Neill.
O'Neill makes one last argument that, even in instructing
in Fourth Amendment terms, the court did not give the correct
Fourth Amendment instruction and that the error affected the
damages award.
O'Neill argues that the district court erred, at least as
to the first theory, in not calling the jury's attention to what he
calls the "temporal element of the duration of the incident." See
Davis v. Rennie, 264 F.3d 86, 97 (1st Cir. 2001). This, he argues,
is pertinent to the damages award because O'Neill did not have time
to prevent Espada from his initial blow to Ernid's genital area,
which O'Neill contends is the largest component of the award of
damages. Like the previous challenge to the jury instructions, by
failing to object at the required time, O'Neill has not preserved
his claim of error. On this point, there was no error at all.
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When a disappointed party "asks an appellate court to
scrutinize a trial judge's word choices, 'the central inquiry
reduces to whether, taking the charge as a whole, the instructions
adequately illuminate the law applicable to the controlling issues
in the case without unduly complicating matters or misleading the
jury.'" Elliott v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir. 1998)
(quoting United States v. DeStefano, 59 F.3d 1, 3 (1st Cir. 1995)).
The trial judge's instructions, by stating that, in order
to be held liable, O'Neill must have a "realistic opportunity to
prevent the other officer's actions" "from the perspective of a
reasonable officer on the scene," adequately took into account the
question of whether O'Neill had enough time to intervene. See
Davis, 264 F.3d at 97, 102 (discussing how the phrasing of
"realistically" intervene and "sufficient" time to intervene in
the jury instructions focused the jury's attention on whether
attendant circumstances permitted intervention).
The trial judge did not abuse her discretion in
determining that more commentary on the time frame of the attack
would have confused the issues in this case and misled the jury.
As the trial judge explained during the pre-charge conference:
[T]here is, in this case, an issue on what was
the time frame of the attacks, the assaults,
and for the Court to be making reference to
things such as if the assault occurred in a
matter of seconds . . . would bring a message
to the jury that the Court has made a ruling
on liability as to whether this was over in a
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matter of seconds . . . . That's for them to
decide.
There was conflicting testimony as to how long the entire assault
lasted and it was for the jury to resolve that question of fact,
decide whether and when O'Neill could have realistically intervened
during the episode, and determine how much of the damages Ernid
suffered should be attributed to O'Neill. The trial judge's
refusal to give an instruction was not abuse of discretion and,
thus, was not plain error.
C. Qualified Immunity
O'Neill argues that the trial court erred by denying him
qualified immunity from the failure to intervene claim. His chief
argument is that in 1998, "the law [was] not clearly established as
to the application of a failure to intervene standard in an open
street investigatory detention scenario."
In this circuit, qualified immunity analysis is divided
into three stages. See Riverdale Mills Corp. v. Pimpare, 392 F.3d
55, 60-61 (1st Cir. 2004). The first stage asks: "Taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officer's conduct violated a constitutional
right?" Id. at 61 (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). In the second stage, the question is "'whether the right
was clearly established at the time of the alleged violation' such
that a reasonable officer would 'be on notice that [his] conduct
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[was] unlawful.'" Id. (quoting Suboh v. Dist. Attorney's Office,
298 F.3d 81, 90 (1st Cir. 2002)). And in the last stage, the
question is "whether a 'reasonable officer, similarly situated,
would understand that the challenged conduct violated' the clearly
established right at issue." Id. (quoting Suboh, 298 F.3d at 90).
O'Neill focuses on the second step in the analysis, and
he argues that in August 1998 there was no clearly established duty
for officers to intervene in situations of excessive use of force
by other officers except those involving an actual arrest or
pretrial detention. See Davis, 264 F.3d at 113-14 (pre-1998 case
law "clearly established that a police officer has a duty to act
when he sees another officer using excessive force against an
arrestee or pretrial detainee if the officer could realistically
prevent that force and had sufficient time to do so" (emphasis
added)).
This argument is simply wrong. Davis and the case law do
not distinguish an officer's duty to intervene during an
"investigatory stop" from that during an arrest or pre-trial
detention. The Fourth Amendment duty applies here where Ernid was
seized. "A law enforcement officer has an affirmative duty to
intercede on the behalf of a citizen whose constitutional rights
are being violated in his presence by other officers." Krzeminski,
839 F.2d at 11 (emphasis added); see also Martinez, 54 F.3d at 985
(explaining that Gaudreault "contemplates that the underlying
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tortious conduct take place within the context of an arrest,
interrogation, or similar maneuver" (emphasis added)); Gaudreault,
923 F.2d at 207 n.3. The Supreme Court found no difference between
an investigatory stop and an arrest or "other 'seizure'" of the
person for purposes of the constitutional right to be free from the
use of excessive force under the Fourth Amendment. Graham, 490
U.S. at 395.
In keeping with these principles, no reasonable officer
would have concluded that this stop was outside of these Fourth
Amendment obligations. At least one other circuit had determined
by 1998 that an officer had an affirmative duty to intervene to
prevent the use of excessive force by another officer during an
investigatory stop. See Mick v. Brewer, 76 F.3d 1127, 1136 (10th
Cir. 1996); see also Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.
1994) (officer may be held liable for failing to intervene against
another officer's use of excessive force during the investigation
of a crime scene).8
Further, the alternate basis of joint participant
liability in the failure to intervene claim against O'Neill was
clearly established in 1998. See, e.g., Martinez, 54 F.3d at 985
8
O'Neill attempts to distinguish these cases on the ground
that they do not squarely hold that the Fourth Amendment (as
opposed to the Fourteenth Amendment) is what gives rise to the
claim for failure to intervene. This argument is a diversion at
best. The cases clearly establish that a bystander police officer
had a duty to intervene in the excessive use of force by a fellow
officer during the course of an investigatory stop.
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n.4 ("In such a scenario, the onlooker officers and the aggressor
officer are essentially joint tortfeasors and, therefore, may incur
shared constitutional responsibility."); see generally Monroe v.
Pape, 365 U.S. 167 (1961). O'Neill does not make any argument that
this theory of liability was unclear at the time of the beating.
O'Neill is not entitled to qualified immunity because the law was
clearly established in 1998 that an officer in O'Neill's
circumstances had a duty to intervene.
D. The Jury Verdict for Torres-Rivera's Puerto Rico Law
Negligence Claim.
O'Neill finally argues that the evidence was insufficient
to justify the jury verdict against O'Neill for negligence. Again,
the arguments are without merit.
The general Puerto Rico tort law statute, Article 1802 of
the Civil Code of Puerto Rico, under which Torres-Rivera brought
her claim, states: "A person who by an act or omission causes
damage to another through fault or negligence shall be obliged to
repair the damage so done. Concurrent imprudence of the party
aggrieved does not exempt from liability, but entails a reduction
of the indemnity." 31 P.R. Laws Ann. § 5141.
O'Neill first argues that a jury was compelled to find
that Torres-Rivera's own actions in coming out of the house and
asking "What happened?" were not reasonable, and so O'Neill could
not be liable for negligently harming her. The reasonableness of
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Torres-Rivera's actions does not go to O'Neill's liability. As
Article 1802 makes clear, that is an argument to the jury that
O'Neill's damages be reduced, and not an argument as to liability.
O'Neill next contends that O'Neill did not "seize"
Torres-Rivera by pointing the gun at her. This is a non sequitur.
Torres-Rivera's claim against O'Neill is not that he negligently
seized her, but that he negligently caused harm to her by his
actions.
O'Neill's final argument is that Torres-Rivera did not
sufficiently prove her damages. Torres-Rivera testified that she
was traumatized by the incident and the harm to her son Ernid,
which she witnessed, and that she had to receive medical treatment
herself, leaving her sister to be in charge of Ernid. Torres-
Rivera also had to receive psychological treatment as a result of
the incident and gave up her plans to become a police officer even
though she already took the first exams. There is sufficient
evidence for the jury to conclude that Torres-Rivera successfully
proved her damages.
III.
The district court's judgment is affirmed. Costs are
awarded to plaintiffs/appellees.
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