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USCA1 Opinion

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


__________________________

Totti, Rodrigues-D az & Fuentes were


_________________________________

on brief,

and

for defendant-

appellant.
Peter Berkowitz, with
________________

whom

Roberto Rold n Burgos was


______________________

on

brief, for plaintiffs-appellees.

_________________________

April 24, 1997

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

In Johnson v. Jones, 115 S. Ct.


_______

_____

2151,

2156-59

circumstances

(1995),

in which

official's attempt to

the

Supreme

Court

district court's

dispose of

denial of

a claim for

63

F.3d

elaborated

appeal in

71,

by

immunity might be

Shortly thereafter, in Stella v. Kelley,


______
______

73-77 (1st

upon

the

a public

money damages

means of a pretrial motion asserting qualified

immediately appealable.

discussed

Cir.

1995),

our understanding

this case requires us to

of

we

applied Johnson
_______

it.

The

and

interlocutory

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

we

first set the stage.

In

the issue of

appealability vel non,


___ ___

1984, Miguel D az Mart nez (Officer

D az) became

member of

the Puerto

inspired approximately eighteen

Rico Police

on August

17, 1989,

He

disciplinary complaints, many of

which involved the profligate brandishing or

firearm without adequate cause.

Force.1

use of his official

The pi ce de r sistance occurred


_____ __ __________

when, after

assaulting and

threatening to

kill his wife, Officer D az captured a police station at gunpoint

and held several

incident,

he

fellow officers hostage.

was cashiered

and

As a result

involuntarily

of this

committed to

mental institution for three weeks.

Little daunted, Officer D az pressed

appeal.

Despite his

earlier escapades, he

an administrative

eventually regained

____________________

1Although

Officer D az

is

a defendant

in the

underlying

suit, he is not a party to the appeal.

his position

on the

force.

At

(March 25, 1993), and throughout

the time

of his

reinstatement

the period material hereto, the

appellant, Tom s V zquez Rivera (V zquez), served as an assistant

superintendent of

"Auxiliary

Affairs"

the

police

Superintendency

(having assumed

for

force and

the

Inspections

that post

in August

director

and

of

its

Disciplinary

1990).

In this

capacity, V zquez

was responsible,

inter alia, for


_____ ____

maintaining

administrative complaint records, identifying recidivist officers

(those

who

repeatedly

violated

ensuring that "problem" officers

disciplinary

standards),

and

received special training.

The

plaintiffs allege that, when Officer D az rejoined the force, the

personnel

director

ordered

authorizing

him

carry

appellant's

subordinates

informing

to

the assigned

contain any mention of

his disquieting

derogation of

an

gave

investigation

firearm,

D az

investigator

and

a clean

preliminary

that

bill

that D az's

past complaints or any other

history.

his assigned

They

also

allege that

duties, did not

one

of

of

to

the

health,

file did

not

indicium of

V zquez,

in

maintain up-to-date

files, and, consequently, neither identified D az as a recidivist

officer

nor recommended that he undergo remedial training.

result,

Officer

probationary

and,

after a

D az

period,

delay to

returned

to duty

without receiving

permit the

without

any

any

remedial training,

completion of

director's investigation, without having any

enduring

As a

the personnel

restrictions on his

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,

location which

the police

regarded as

That afternoon, while on guard duty, he

decedent, Jos

of

the

sufficient

Jos 's

and

from his

ordered him

apartment.

alacrity, Officer

sister,

intervene.

high-tension area.

accosted the plaintiffs'

Manuel Rosario D az (Jos ), a 19-year-old resident

project,

documents

Mar a

A scuffle

revolver, fired a bullet

to

retrieve

When Jos

D az shouted

Rosario

ensued.

D az

did not

comply with

obscenities at

(Mar a),

Officer

identification

attempted

D az drew

at Mar a (wounding her), and

him.

to

his police

then shot

and killed Jos .

In due

suit

season, Mar a and other

under 42 U.S.C.

1983 (1994).

family members brought

They alleged that Officer

D az and several supervisory police officials, including V zquez,

had violated

moved

Mar a's and Jos 's constitutional

for summary

immunity defense.

judgment,

raising, inter
_____

rights.

alia, a
____

V zquez

qualified

The district court denied his motion.

V zquez

now prosecutes this interlocutory appeal.

Section

against

1983 provides

for a

public officials who, under

private right

of action

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.

rights

violations

section

were

from

1983 as long as his conduct

"clearly

federal

is shielded

law.

established"

See Harlow
___ ______

under

claims

under

did not violate rights that

the

v. Fitzgerald,
__________

(1982); Buenrostro v. Collazo,


__________
_______

for damages

Constitution

or

under

457 U.S.

800, 818-19

973 F.2d 39, 42 (1st

Cir. 1992).

For purposes of this

the

"contours

reasonable

of

defense, a right is clearly

the right

[are]

would

understand

official

violates that right."

sufficiently

that what

established if

clear that

he

is

Anderson v. Creighton, 483 U.S.


________
_________

doing

635, 640

(1987).

Interlocutory

orders (such as

motions to

dismiss or for

appealable

as of

U.S.C.

summary judgment) ordinarily

right at the

1291 (1994).

qualified immunity

are entered.

by means of a pretrial

court denies

result sometimes

time they

are not

See 28
___

But where, as here, a defendant seeks the

shelter of qualified immunity

the nisi prius

orders denying pretrial

obtains.

the requested

If

defense is

the

motion and

relief, a

pretrial rejection

based on

a purely

different

of

the

legal ground,

such

as a finding that

assuming it occurred,

then

the

appeal.

denial

See
___

the conduct described

transgressed a clearly

may

be challenged

Johnson, 115
_______

defendant, entitled

S. Ct.

through

at 2155-56.

by the plaintiff,

established right,

an

interlocutory

Conversely,

to invoke a qualified-immunity

defense, may

not appeal a district

court's summary judgment order insofar

that order determines

whether or

forth a `genuine'

not the

issue of fact for

pretrial record

trial."

Id. at
___

"a

2159.

as

sets

The

dividing line that separates an immediately appealable order from

nonappealable

visualize.

one in

these purlieus

is

not always

In Stella, we attempted to illuminate it:


______

Thus, on

the

one hand,

a district

pretrial rejection of

a proffered

immunity

defense

remains

appealable

as

extent that

qualified
immediately

collateral

order

to

the

it turns on a pure issue of law,

notwithstanding

the

judgment.

the other

court's

court's

On
pretrial

absence

defense

is

appealable

to the

extent

hand,

rejection

immunity

of

a district

of a
not

final

qualified
immediately

that it

turns on

either an issue of fact or an issue perceived


by

the trial court

In such a

to be an

situation, the

the entry of

issue of fact.

movant must

await

final judgment before appealing

easy to

the adverse ruling.

Stella, 63 F.3d
______

Stella, then,
______

at 74

(citations omitted).

a defendant who, like

sought summary judgment based

to

Under Johnson
_______

and

V zquez, has unsuccessfully

on qualified immunity is permitted

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.

Court noted that

determination

fact"

denial

"[d]enial of summary judgment

that

there

are controverted

There, the

often includes a

issues

of material

and admonished that Johnson "does not mean that every such
_______

of summary judgment

is nonappealable."

Behrens, 116 S.
_______

Ct.

at 842.

Rather,

when

a court,

in denying

summary judgment premised on qualified immunity,

certain

conduct

attributed

to

a defendant,

a motion

for

determines that

if

proven,

will

suffice

to

defendant may

show a

violation

assert on

conduct which the

of clearly

established

interlocutory appeal

District Court

law, the

"that all

deemed sufficiently

of the

supported

for

purposes

`objective

of summary

legal reasonableness.'"

this extent, Behrens


_______

appellate

Still,

judgment

avenue

places a

that

some

met the

Id.
___

Harlow
______

(quoting Harlow).
______

gloss on Johnson
_______

had

standard of

thought

and reopens

Johnson
_______

To

an

foreclosed.

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

75.

post-trial entry of final judgment.

Stella, 63 F.3d at 74______

Thus, Stella survives the emergence of Behrens fully intact


______
_______

and remains the law of this circuit.

The

precedents.

appeal at hand withers

own acts or omissions.

v. Castillo- Rodriguez, 23
____________________

liability can arise out

leads

582

glare of these

Under section 1983, a supervisor may be found liable

on the basis of his

Such

in the hot

F.3d

576, 581-82

See Maldonado-Denis
___ _______________

(1st Cir.

of participation in

1994).

a custom that

to a violation of constitutional rights, see, e.g., id. at


___ ____ ___

(citing

indifference to

other

cases),

v. Cartagena,
_________

1989) (citing other cases).

on his

by

acting

the constitutional rights of

Gutierrez-Rodriguez
___________________

hinges

or

882 F.2d

with

deliberate

others, see, e.g.,


___ ____

553, 562

(1st Cir.

The plaintiffs' case against V zquez

alleged deliberate

indifference; they

claim, in

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

rehabilitated),

without

and

first

therefore,

having

that

September 8 would not have occurred.

been

the

retrained

tragic

events

and

of

V zquez's motion for brevis disposition challenged this


______

theory,

legally and factually.

In adjudicating it, the district

court made a binary determination.

reasonable official

in V zquez's position would

the "failure to take

officer] could

First, the court ruled that a

have known that

. . . remedial actions concerning

create supervisory liability."

This

[a rogue

is a

pure

conclusion of law as to which, in the qualified immunity context,

an immediate

Stella, 63
______

appeal

lies.

F.3d at 77;

511, 528 n.9 (1985)

question).

clearly

Behrens, 116
_______

see also Mitchell


___ ____ ________

S. Ct.

at

839;

v. Forsyth, 472
_______

U.S.

(acknowledging that the question

the conduct attributed

violates

See
___

by a plaintiff to a

established

right

of whether

particular defendant

is

"purely

legal"

Nonetheless,

applicable

law was

question that, at

we agree

clearly

with the

lower court

established; it

is beyond

that the

serious

the times relevant hereto, a reasonable police

supervisor, charged with the duties that V zquez bore, would have

understood

failing

to

that he

identify

could

and

be held

constitutionally liable

take remedial

action

concerning

for

an

officer with demonstrably dangerous predilections and a checkered

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

basis for supervisory liability if it is causally connected to

the actions that work the direct constitutional injury").

extent

To the

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

legal

motion for

theory,

the

summary judgment because,

evidence

was

insufficient

regardless of

to

establish

deliberate

(at

the

indifference on his part,

least)

rejected

qualified

this argument

controverted

those

to

facts

immunity.

on the

and that,

disputes favorably to

and, thus, he was entitled

But

basis that the

if a

Judge

record contained

factfinder were

the plaintiffs, he

Laffitte

to resolve

could then find

that V zquez's supervision of the disciplinary affairs bureau was

so pathetic that his conduct constituted deliberate

to

the plaintiffs' rights.3

Since V zquez does

indifference

not argue that

____________________

3This rejection was factbound.


for brevis disposition, Judge
______

In denying V zquez's motion

Laffitte, citing various exhibits,

commented that "the record is replete with evidence that [Officer


D az's] disciplinary file was poorly maintained."
pointed

to

evidence

indicating

"that

many

The judge then


of

the

police

department's disciplinary files on its officers were incomplete,"


and

noted

specifically evidence

to

the

effect "that

failed to maintain [Officer D az's] disciplinary


to identify him

as an

officer [who had

V zquez

records, failed

engaged in]

repetitive

conduct, and failed to


further

observed that,

refer him for training."


had the

file been

Judge Laffitte

properly maintained,

the facts asserted

by the plaintiffs,

fail to show deliberate indifference

counsel termed

that

at oral argument

the facts asserted by

warrant a

even if altogether

true,

he argues instead what his

"the absence

of facts,"

i.e.,

the plaintiffs are untrue, unproven,

different spin, tell only

a small part of

the story,

and

are

presented

out

of

context

determination is not reviewable on an

Behrens,
_______

116 S.

Ct. at

the

district

court's

interlocutory appeal.

842; Johnson,
_______

Berdec a-P rez v. Zayas-Green, ___ F.3d


______________
___________

115 S.

Ct. at

See
___

2156-59;

___, ___ (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

challenge to

need go no further.

the

order denying

To the

summary

review, it is impuissant.

Affirmed.
Affirmed.
________

Costs to appellees.
Costs to appellees.
__________________

extent that V zquez's

judgment is

ripe

for

____________________

Officer

D az likely would have been evaluated as unfit to return

to regular duty.
taken

in the

"sufficient

light most
to create

whether [V zquez]
failure to

In the court's view, this (and other) evidence,


complimentary to

a genuine

issue of

the plaintiffs,
material fact

was deliberately indifferent and

maintain an

accurate file on

[the plaintiffs'] injuries."

10

was

as to

whether this

[Officer D az]

caused