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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                    _________________________ <br> <br>No. 97-2260 <br> <br>                      GRANCID CAMILO-ROBLES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>      DR. GUILLERMO HOYOS AND DR. HECTOR O. RIVERA-GONZALEZ, <br>                     Defendants, Appellants. <br>                    _________________________ <br> <br>No. 97-2261 <br> <br>                      GRANCID CAMILO-ROBLES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                     PEDRO A. TOLEDO-DAVILA, <br>                      Defendant, Appellant. <br>                    _________________________ <br> <br>No. 97-2262 <br> <br>                      GRANCID CAMILO-ROBLES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                       GILBERTO DIAZ-PAGAN, <br>                      Defendant, Appellant. <br>                    _________________________ <br> <br>No. 97-2264 <br> <br>                      GRANCID CAMILO-ROBLES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                     PABLO SANTIAGO-GONZALEZ, <br>                      Defendant, Appellant. <br> <br>                    _________________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br>                    _________________________ <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br> <br>                 Campbell, Senior Circuit Judge, <br> <br>                    and Stahl, Circuit Judge. <br> <br>                    _________________________ <br> <br>     Roberto Lefranc Romero, with whom Martinez Alvarez, Menendez <br>Cortada & Lefranc Romero was on brief, for appellants Hoyos and <br>Rivera-Gonzalez. <br>     John F. Nevares, with whom Ayleen Charles, Lizzie Portela, and <br>Smith & Nevares were on brief, for appellant Toledo-Davila. <br>     Orlando Duran-Medero, with whom Ricardo R. Rodriguez Padilla <br>Law Offices was on brief, for appellant Diaz-Pagan. <br>     Roberto Santana Aparicio, with whom Marisol Vega Coputo and <br>Del Toro & Santana were on brief, for appellant Santiago-Gonzalez. <br>     Judith Berkan, with whom Peter Berkowitz was on brief, for <br>appellee. <br> <br>                    _________________________ <br> <br>                         June 29, 1998 <br> <br> <br>                    _________________________

          SELYA, Circuit Judge.  After suffering indignities at the <br>hands of an unstable police officer, plaintiff-appellee Grancid <br>Camilo-Robles sued an array of defendants under 42 U.S.C.  1983 <br>(1994). In due season, five such defendants, appellants here, <br>moved for summary judgment on the ground of qualified immunity.  <br>The district court rejected their motions (in some instances <br>without waiting for an opposition).  Although the timing of the <br>district court's ruling and the lack of any authoritative insight <br>into the court's reasoning complicate our task, we affirm. <br>I.  BACKGROUND <br>     Parking privileges denote special status in our motorized <br>society, and emotions often run high when a parking space is at <br>stake.  This case vividly illustrates that verity. <br>     On May 13, 1994, Miguel Diaz-Martinez, a police officer <br>assigned to the Bayamon Criminal Investigation Corps (CIC), sought <br>to park in an area reserved for judges at the Bayamon Judicial <br>Center.  Camilo-Robles, a security guard sworn to protect that <br>hallowed ground, told Diaz-Martinez that he could not park there.  <br>In response to this perceived affront, Diaz-Martinez placed his <br>hand on his gun, arrested Camilo-Robles, handcuffed him, shoved the <br>prisoner into his (Diaz-Martinez's) police cruiser, and drove to <br>the station house (pausing to punch Camilo-Robles in the stomach <br>and slap him in the face).  Upon their arrival, Diaz-Martinez <br>forced the plaintiff to remove his belt and shoes and placed him in <br>a cell with other detainees.  Cooler heads prevailed, and Diaz- <br>Martinez's prey was released, uncharged, some three hours later. <br>     Camilo-Robles sued Gilberto Diaz-Pagan (director of the <br>Bayamon CIC), Pablo Santiago-Gonzalez (Bayamon area commander), and <br>Pedro A. Toledo-Davila (superintendent of police).  In addition to <br>these high-ranking police officials, Camilo-Robles named a host of <br>other defendants including inter alia two psychiatrists who worked <br>for the police department, Drs. Guillermo Hoyos and Hector O. <br>Rivera-Gonzalez.  Invoking section 1983, Camilo-Robles alleged that <br>these five named defendants (collectively, "the appellants") had <br>deprived him of his civil rights by their deliberate indifference <br>in carrying out their supervisory responsibilities (with the result <br>that Diaz-Martinez, a demonstrably unstable officer, was allowed to <br>remain on active duty). <br>     The district court issued its scheduling order on <br>February 21, 1996.  In December of that year, the appellants filed <br>summary judgment motions.  Camilo-Robles responded on the merits to <br>the psychiatrists' summary judgment motion, but served a cross- <br>motion seeking additional time in which to oppose the police <br>officials' motions, see Fed. R. Civ. P. 56(f), explaining that they <br>had stonewalled during pretrial discovery.  The district court <br>granted this cross-motion without limit of time and referred all <br>pending discovery matters to a magistrate judge.  Lassitude set in, <br>and the magistrate made no rulings until August 26, 1997.  Two days <br>later, the district court denied the appellants' summary judgment <br>motions in a curt, two-page order.  These appeals followed.  <br>II.  A CAREER TO MAKE ST. SEBASTIAN WEEP <br>       Because the allegations of liability and the defenses <br>thereto hinge upon what actions the various defendants took (or <br>should have taken) in light of Diaz-Martinez's flagitious history <br>of violence, the latter's career is of great relevance.  We extract <br>the facts from the summary judgment record, resolving all conflicts <br>in favor of the plaintiff.  See Garside v. Osco Drug, Inc., 895 <br>F.2d 46, 50 (1st Cir. 1990). <br>     Diaz-Martinez joined the police force as a cadet in March <br>1984.  That December, he was suspended for an assault.  Despite the <br>suspension, he became a regular officer and served as such for the <br>next five years.  His record reflects numerous disciplinary <br>infractions involving violent and/or threatening behavior   we <br>count at least eighteen   many of which entailed unwarranted <br>brandishing of his weapon.  The denouement occurred in August 1989 <br>when, after assaulting his wife, Diaz-Martinez entered the Catano <br>police station, seized a shotgun, and held several gendarmes <br>(including the acting police superintendent) hostage for several <br>hours. <br>     Subsequent to this bizarre display, Diaz-Martinez was <br>committed involuntarily to a psychiatric hospital and diagnosed as <br>schizophrenic.  The hospital discharged him and three months later <br>a police psychiatrist, Dr. Pagan-Davis, recommended that he be <br>separated from the force and given a civilian position.  The police <br>department suspended Diaz-Martinez in 1990 and formally expelled <br>him in 1991. <br>     Justice sometimes moves in mysterious ways.  Diaz- <br>Martinez successfully appealed his expulsion and the police <br>department reinstated him in May 1993.  While on desk duty, he <br>assaulted a civilian.  Nevertheless, Drs. Hoyos and Rivera-Gonzalez <br>found Diaz-Martinez free from mental illness and fit for active <br>duty (with no restrictions) when they examined him in August.  The <br>department promptly rearmed him and assigned him to work in a high- <br>tension neighborhood.  On September 8, 1993 (the day following his <br>return to active duty), Diaz-Martinez engaged in an altercation <br>with two unarmed, law-abiding neighborhood residents.  In the <br>course of this fracas, he shot both of them, wounding one and <br>killing the other.  See Diaz v. Diaz Martinez, 112 F.3d 1, 2 (1st <br>Cir. 1997) (summarizing the facts of that episode).  The police <br>department immediately confiscated his weapon. <br>     After a self-imposed exile, Diaz-Martinez returned to <br>desk duty in November 1993.  On January 20, 1994, while still <br>unarmed, Diaz-Martinez threatened to kill a fellow officer at the <br>Bayamon Radio Center.  Six days later, he was transferred to the <br>Bayamon CIC.  On February 28, 1994, Drs. Hoyos and Rivera-Gonzalez <br>again examined Diaz-Martinez and again declared him ready for <br>unrestricted active duty and fit to carry a weapon.  The police <br>department rearmed him forthwith. <br>     The incident that sparked this suit occurred in May of <br>1994.  The police department again expelled Diaz-Martinez that <br>August.  He eventually pled guilty to voluntary manslaughter in <br>connection with the September 1993 shootings and was sentenced to <br>serve a prison term. <br>III.  THE LEGAL LANDSCAPE <br>     Before tackling the vagaries of each defendant's appeal, <br>we first must map the crossroads at which the qualified immunity <br>doctrine and principles of supervisory liability under section 1983 <br>intersect.  We then discuss pertinent questions of appellate <br>jurisdiction and pause to note the somewhat tentative nature of <br>orders denying summary judgment in the qualified immunity context. <br>        A.  Qualified Immunity and Supervisory Liability. <br>     Federal law provides a cause of action when an <br>individual, acting under color of state law, deprives a person of <br>federally assured rights.   See 42 U.S.C.  1983.  Public officials <br>who stand accused of civil rights violations under section 1983 <br>nonetheless can avoid liability for money damages by showing either <br>that they did not violate a right clearly established under federal <br>law or that they acted with objective legal reasonableness.  SeeHarlow v. Fitzgerald, 457 U.S. 800, 819 (1982); Buenrostro v. <br>Collazo, 973 F.2d 39, 42 (1st Cir. 1992). <br>     The Supreme Court has emphasized that a section 1983 <br>plaintiff must allege a violation of a clearly established right <br>secured either by the Constitution or by some other federal law.  <br>See County of Sacramento v. Lewis, ___ S. Ct. ___, ___ n.5 (1998) <br>[1998 WL 259980 at *4 n.5].  Here, the plaintiff vaults this hurdle <br>with room to spare.  The right to be free from unreasonable seizure <br>(and, by extension, unjustified arrest and detention) is clearly <br>established in the jurisprudence of the Fourteenth Amendment <br>(through which the Fourth Amendment constrains state action).  The <br>right to due process of law (and, by extension, to be free from <br>police brutality) is likewise clearly established under the <br>Fourteenth Amendment (through which the Fifth Amendment constrains <br>state action). <br>     We have not had occasion to address the question whether, <br>to be liable under section 1983, a supervisor must have violated an <br>independent, "clearly established" right, or whether a supervisor <br>may be liable based only on his proximity to a subordinate's <br>violation of a "clearly established" right.  Other circuits, <br>however, have addressed this interplay between the "clearly <br>established" requirement and supervisory liability.  We follow <br>their lead and adopt an approach that comports with the core <br>principle of qualified immunity by protecting supervisory officials <br>from suit when they could not reasonably anticipate liability. <br>     When a supervisor seeks qualified immunity in a section <br>1983 action, the "clearly established" prong of the qualified <br>immunity inquiry is satisfied when (1) the subordinate's actions <br>violated a clearly established constitutional right, and (2) it was <br>clearly established that a supervisor would be liable for <br>constitutional violations perpetrated by his subordinates in that <br>context.  See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456 <br>(5th Cir. 1994); Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir. 1994).  <br>In other words, for a supervisor to be liable there must be a <br>bifurcated "clearly established" inquiry   one branch probing the <br>underlying violation, and the other probing the supervisor's <br>potential liability. <br>     Here, both elements are satisfied.  We already have noted <br>that the plaintiff's clearly established rights were violated, seesupra Part III(A), and it is equally well settled that a <br>deliberately indifferent police supervisor may be held liable for <br>the constitutional violations of his subordinates.  See Diaz, 112 <br>F.3d at 4. <br>     The question, then, reduces to the test of objective <br>legal reasonableness.  This test does not serve as a proxy for <br>liability, because even state actors who commit constitutional <br>violations may be entitled to qualified immunity.  See, e.g., <br>Ringuette v. City of Fall River, ___ F.3d ___, ___ (1st Cir. 1998) <br>[No. 96-1107, slip op. at 10]; Brennan v. Hendrigan, 888 F.2d 189, <br>194 (1st Cir. 1989).  Instead, the test's utility is restricted to <br>the qualified immunity inquiry.  In that milieu, the test provides <br>a method for determining whether, in relation to a clearly <br>established right, a defendant's conduct was (or was not) <br>reasonable.  Withal, objective legal reasonableness is a concept <br>that grew up in the prototypical section 1983 context   a context <br>in which a state actor ("A") inflicts injury directly on a victim <br>("V") in derogation of V's constitutionally-protected rights.  <br>Where the context shifts   as where A is not a direct actor (i.e., <br>he himself did not perpetrate the seizure, detention, or assault of <br>which V complains), but, rather, stands accused of permitting a <br>third person ("B"), also a state actor, to violate V's rights   the <br>test remains intact, but its focus shifts.  In this tri-cornered <br>situation, objective legal reasonableness (and, hence, qualified <br>immunity) necessarily depends upon the relationship between A's <br>acts or omissions and B's conduct. <br>     This brings us to the doctrine of supervisory liability, <br>which holds that a supervisor (defined loosely to encompass a wide <br>range of officials who are themselves removed from the perpetration <br>of the rights-violating behavior) may be liable under section 1983 <br>if he formulates a policy or engages in a practice that leads to a <br>civil rights violation committed by another.  See City of Oklahoma <br>City v. Tuttle, 471 U.S. 808, 823-24 (1985).  Notice is a salient <br>consideration in determining the existence of supervisory <br>liability.  See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, <br>93 (1st Cir. 1994) (treating as "[a]n important factor . . . <br>whether [the supervisor] was put on notice of behavior which was <br>likely to result in the violation of . . . constitutional rights").  <br>Nonetheless, supervisory liability does not require a showing that <br>the supervisor had actual knowledge of the offending behavior; he <br>"may be liable for the foreseeable consequences of such conduct if <br>he would have known of it but for his deliberate indifference or <br>willful blindness."  Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d <br>576, 582 (1st Cir. 1994). <br>     To demonstrate deliberate indifference a plaintiff must <br>show (1) a grave risk of harm, (2) the defendant's actual or <br>constructive knowledge of that risk, and (3) his failure to take <br>easily available measures to address the risk.  See Manarite v. <br>City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992).  This <br>formulation correctly implies that deliberate indifference alone <br>does not equate with supervisory liability; a suitor also must show <br>causation.  See Maldonado-Denis, 23 F.3d at 582 (explaining that <br>the supervisor must have "had the power and authority to alleviate <br>[the violation]").  In other words, the plaintiff must <br>"affirmatively connect the supervisor's conduct to the <br>subordinate's violative act or omission."  Id.  This affirmative <br>connection need not take the form of knowing sanction, but may <br>include tacit approval of, acquiescence in, or purposeful disregard <br>of, rights-violating conduct.  See id.  <br>     This returns us to the point of our beginning:  the <br>relationship between qualified immunity and supervisory liability.  <br>By definition, a defendant who claims qualified immunity must do so <br>either on the theory that the asserted right is not clearly <br>established or on the theory that the conduct attributed to him <br>satisfies the test of objective legal reasonableness.  See Harlow, <br>457 U.S. at 819.  Because the constitutional rights and supervisory <br>liability doctrine that underlie Camilo-Robles's claim are clearly <br>established, the qualified immunity analysis here turns on whether, <br>in the particular circumstances confronted by each appellant, that <br>appellant should reasonably have understood that his conduct <br>jeopardized these rights.  See Ringuette, ___ F.3d at ___ [slip op. <br>at 10]; Berthiaume v. Caron, ___ F.3d ___, ___ (1st Cir. 1998) [No. <br>97-1958, slip op. at 7]. <br>     The inquiry into qualified immunity is separate and <br>distinct from the inquiry into the merits.  Consequently, courts <br>are well-advised to separate "qualified immunity" analysis from <br>"merits" analysis whenever practicable.  In some circumstances, <br>however, these inquiries overlap.  So it is here:  the appellants <br>stand accused of culpable conduct in a setting that requires an <br>inquiry into deliberate indifference (which is customarily a <br>merits-related topic). <br>     Given this setting, discerning whether a particular <br>appellant's behavior passes the context-specific test of objective <br>legal reasonableness to some extent collapses the separate <br>"qualified immunity" and "merits" inquiries into a single analytic <br>unit.  Such an approach is unusual, but we occasionally have <br>engaged in precisely this sort of merits-centric analysis in the <br>course of deciding questions of qualified immunity.  See, e.g., <br>Morales v. Ramirez, 906 F.2d 784, 787 (1st Cir. 1990) (explaining <br>"that, in certain cases, some aspect of the merits may be <br>inexorably intertwined with the issue of qualified immunity") <br>(citation and internal quotation marks omitted); Amsden v. Moran, <br>904 F.2d 748, 753-58 (1st Cir. 1990) (examining the substance of <br>the plaintiff's due process claims to determine the defendants' <br>eligibility for qualified immunity). <br>     We weave these strands together into a thread that binds <br>these appeals.  The plaintiff alleges a violation of clearly <br>established constitutional rights and asserts that several <br>defendants bear supervisory liability for that violation.  <br>Responding to these allegations, each defendant claims qualified <br>immunity and, because both the rights in question and each <br>defendant's susceptibility to supervisory liability are clearly <br>established, these qualified immunity claims hinge on whether that <br>defendant's conduct was objectively reasonable.  Since our inquiry <br>into objective legal reasonableness involves deliberate <br>indifference, however, we are compelled to engage the merits to a <br>greater extent than is usual. <br>       B.  Considerations Affecting Appellate Jurisdiction. <br>     Were we reviewing a district court's grant of summary <br>judgment based on qualified immunity, our course would be clear:  <br>we would determine de novo whether the affected defendant was <br>entitled to a favorable judgment as a matter of law.  Here, <br>however, the summary judgment motions were denied, not granted, and <br>this fact complicates our analysis.  In the qualified immunity <br>realm, the dividing line between appealable and non-appealable <br>denials of summary judgment is blurred. <br>     Cases are clear enough at the extremes.  We know, for <br>instance, that when a motion for summary judgment that asserts <br>qualified immunity is rejected, the denial cannot ground an <br>interlocutory appeal if the operative question is "whether or not <br>the pretrial record sets forth a genuine issue of fact for trial."  <br>Johnson v. Jones, 515 U.S. 304, 320 (1995).  Similarly, we know <br>that the denial of such a motion is immediately appealable if the <br>operative question is purely legal in nature.  See id. at 319.  In <br>fine, "a summary judgment order which determines that the pretrial <br>record sets forth a genuine issue of fact, as distinguished from an <br>order that determines whether certain given facts demonstrate, <br>under clearly established law, a violation of some federally <br>protected right, is not reviewable on demand."  Stella v. Kelley, <br>63 F.3d 71, 74 (1st Cir. 1995); accord Behrens v. Pelletier, 516 <br>U.S. 299, 306 (1996). <br>     Determining the existence vel non of appellate <br>jurisdiction in cases closer to the equator is more difficult.  <br>Some examples may be useful.  In Diaz, we determined that we lacked <br>jurisdiction to entertain an interlocutory appeal from a pretrial <br>decision denying qualified immunity because the decision turned on <br>the existence of a factual conflict or on what the lower court <br>perceived to be a factual conflict.  112 F.3d at 4-5.   This <br>contrasts with situations in which the district court assumes a set <br>of facts and decides, as a matter of law, that those facts will not <br>support a qualified immunity defense   in which event jurisdiction <br>exists to entertain an immediate appeal.  See Behrens, 516 U.S. at <br>313. <br>     If this were not complex enough, the district judge is <br>not legally obliged to explain the basis on which a denial of <br>summary judgment rests.  See Johnson, 515 U.S. at 319 <br>(acknowledging that "[d]istrict judges may simply deny summary <br>judgment motions without indicating their reasons for doing so"); <br>Domegan v. Fair, 859 F.2d 1059, 1065-66 (1st Cir. 1988) (similar).  <br>When the district court's order is unilluminating, the appellate <br>court must fend for itself.  Anticipating the dilemma that such an <br>inscrutable order may pose in the qualified immunity context, the <br>Court prophesied "that a court of appeals may have to undertake a <br>cumbersome review of the record to determine what facts the <br>district court, in the light most favorable to the nonmoving party, <br>likely assumed."  Johnson, 515 U.S. at 319.  Hence, we must perform <br>the equivalent of an archeological dig and endeavor to reconstruct <br>the probable basis for the district court's decision. <br>     Here, the district court denied the appellants' motions <br>for summary judgment before the plaintiff filed oppositions to <br>several of those motions.  As a result of this hastiness, the data <br>before the court were limited   and limited further by the <br>appellants' apparent intransigence in furnishing discovery.  <br>Withal, the district court had before it a great deal of <br>information from sources such as the psychiatrists' summary <br>judgment papers, the plaintiff's opposition to the psychiatrists' <br>motion, and evidentiary materials submitted by a former codefendant <br>in connection with an earlier summary judgment motion.  The court <br>also had before it all the appellants' moving papers (which contain <br>more than a smidgen of intramural fingerpointing).  The court was <br>at liberty to consult all these sources, and we, too, can consult <br>them in endeavoring to determine whether the court below based its <br>decision on contested facts as opposed to a quintessentially legal <br>judgment. <br>                      C.  A Note of Caution. <br>     Having performed the exercise described in Part III(B), <br>supra, we conclude, for reasons made manifest in our subsequent <br>discussion of the appellants' claims, that we have jurisdiction <br>over all these appeals and that the lower court appropriately <br>denied all four summary judgment motions.  We note, however, that <br>this endorsement of the district court's ruling has a somewhat <br>tentative cast.  We offer three pertinent observations. <br>     First, our approach assumes, despite the awkwardness of <br>the conceptual fit, that deliberate indifference cases are amenable <br>to standard qualified immunity analysis   a proposition that <br>logically may be debatable, but that nevertheless follows from the <br>Supreme Court's broad pronouncements.  See, e.g., Harlow, 457 U.S. <br>at 819.  Second, a pretrial refusal to grant qualified immunity is <br>only a way station in the travel of a case.  When a defendant fails <br>on a pretrial qualified immunity claim, he nonetheless can plead <br>qualified immunity as an affirmative defense and resurrect the <br>claim at trial.  See Ringuette, ___ F.3d at ___ [slip op. at 6]; <br>King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993); Vazquez Rios v. <br>Hernandez-Colon, 819 F.2d 319, 329 (1st Cir. 1987).  Third, <br>notwithstanding a pretrial rejection of qualified immunity, the <br>merits remain open. <br>IV.  THE PSYCHIATRISTS <br>     The plaintiff alleges that the psychiatrists, Drs. Hoyos <br>and Rivera-Gonzalez, evaluated Diaz-Martinez on February 28, 1994, <br>with complete indifference to the constitutional rights of others <br>and recklessly declared him fit for duty and able to carry a <br>weapon.  The psychiatrists' joint summary judgment motion addressed <br>this claim on two levels, positing that they enjoy (1) absolute <br>immunity from suit under Puerto Rico law, and (2) qualified <br>immunity from suit under federal law because their performance was <br>objectively reasonable and, in any event, had no direct bearing on <br>the decision to restore an armed Diaz-Martinez to active duty.  We <br>grapple with these asseverations in sequence. <br> <br>                      A.  Absolute Immunity. <br>     A district court's refusal to grant summary judgment on <br>an absolute immunity claim is, generally speaking, within the scope <br>of our appellate jurisdiction on interlocutory appeal.  SeeAcevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 21 (1st Cir. <br>1992).  In this instance, it invokes the Puerto Rico Medico- <br>Hospital Professional Liability Insurance Act, which provides in <br>pertinent part: <br>     No health service professional may be included <br>     as a defendant in a civil suit for damages due <br>     to malpractice caused in the performance of <br>     his/her profession while said health service <br>     professional acts in compliance with his <br>     duties and functions as an employee of the <br>     Commonwealth of Puerto Rico, its dependencies, <br>     instrumentalities and municipalities. <br> <br>P.R. Laws Ann. tit. 26,  4105 (1994).  The psychiatrists contend <br>that this statute immunizes them because they examined Diaz- <br>Martinez pursuant to the terms of a contract purporting to free <br>them from liability under section 4105 (incorrectly identified as <br>section 5105).  We do not agree. <br>     In the first place, the statute on its face applies to <br>"employees."  The contract states that the psychiatrists are <br>independent contractors, not employees, and the record at the very <br>least raises unanswered factual questions anent the statute's <br>applicability.  See, e.g., Flores Roman v. Ramos-Gonzalez, 127 P.R. <br>Dec. 601, 608-09 (P.R. 1990) (examining the relevant contract to <br>determine whether a given defendant is an employee or independent <br>contractor); see also Nieves v. University of P.R., 7 F.3d 270, 273 <br>(1st Cir. 1993) (discussing section 4105). <br>     In the second place, even if section 4105 applies, it at <br>most gives government-employed physicians immunity from claims <br>brought under Puerto Rico law.  A state-conferred immunity cannot <br>shield a state actor from liability under section 1983.  SeeMartinez v. California, 444 U.S. 277, 284 n.8 (1980) ("Conduct by <br>persons acting under color of state law which is wrongful under 42 <br>U.S.C.  1983 . . . cannot be immunized by state law.") (quoting <br>Hampton v. City of Chicago, 484 F.2d 602, 607 (7th Cir. 1973)).  <br>Indeed, a regime that allowed a state immunity defense to trump the <br>imposition of liability under section 1983 would emasculate the <br>federal statute.  See id.  We therefore reject the proposition that <br>absolute immunity entitled the psychiatrists to summary judgment. <br>                     B.  Qualified Immunity. <br>     Before confronting the psychiatrists' qualified immunity <br>defense, we make a preliminary point.  The psychiatrists are <br>private practitioners, not government employees in the traditional <br>sense.  Consequently, one might wonder whether they could be liable <br>at all under section 1983, or, if so, whether they would be <br>entitled to qualified immunity even on a "best case" scenario.  The <br>answer to both questions is in the affirmative. <br>     A private party's conduct is attributable to the state if <br>the state "has so far insinuated itself into a position of <br>interdependence with [the private party] that it must be recognized <br>as a joint participant in the challenged activity."  Barrios- <br>Velazquez v. Asociacin de Empleados del Estado Libre Asociado, 84 <br>F.3d 487, 494 (1st Cir. 1996) (citation and internal quotation <br>marks omitted; alteration in the original).  Here, the <br>psychiatrists acted under contract with the police department to <br>assist in a necessary departmental function:  the evaluation of <br>officers.  Hence, the psychiatrists, virtually by their own <br>admission (see supra Part IV(A)), are for purposes of this case <br>state actors performing in concert with the department.  As such, <br>they are both subject to suit under section 1983 and eligible for <br>the balm of qualified immunity.  See Rodriques v. Furtado, 950 F.2d <br>805, 814 (1st Cir. 1991) (extending qualified immunity to a <br>physician who agreed to assist the police in a body cavity search). <br>     That said, the psychiatrists' pretrial case for qualified <br>immunity lacks force.  First, perscrutation of the record discloses <br>uncontested facts sufficient to permit us to exercise jurisdiction <br>over their appeal.  Second, those facts, construed favorably to <br>Camilo-Robles, adequately ground a tripartite conclusion (1) that <br>Diaz-Martinez posed an unusually serious risk of harm, (2) that the <br>psychiatrists had actual knowledge of the risk, and (3) that they <br>failed to take readily apparent steps to alleviate that risk.  <br>Third, the assumed set of facts presented here reveals a reckless <br>disregard for the rights of others that outstrips any band of <br>protection afforded by the doctrine of qualified immunity in cases <br>of deliberately indifferent conduct. <br>     We see no need to differentiate between the two <br>psychiatrists for present purposes; after all, they themselves have <br>abjured such a course and presented a united front both below and <br>on appeal.  By like token, it seems unnecessary to rehearse all the <br>facts that contribute to our conclusions.  Instead, we offer a <br>sampling. <br>          The psychiatrists approached the February <br>          1994 evaluation with abundant <br>          foreknowledge of Diaz-Martinez's case, <br>          gleaned from their August 1993 evaluation <br>          of him and their ensuing certification <br>          that he was fit for active duty at that <br>          time. <br> <br>          On September 1, 1993, a few days after <br>          they  issued the August 1993 <br>          certification, the psychiatrists received <br>          a psychologist's report (the Sedra <br>          Report), dated July 14, 1993, which noted <br>          that Diaz-Martinez denied reality, that <br>          he was immature, impulsive, and anxious, <br>          and that "his tension level could make <br>          him . . . act[] out."  Dr. Sedra later <br>          described this last observation as <br>          equivalent to saying that  Diaz-Martinez <br>          "could explode at any time."  Despite <br>          receiving this report, the psychiatrists <br>          did not revisit their original <br>          certification of Diaz-Martinez as fit for <br>          duty, and seem to have ignored the Sedra <br>          Report during the February 1994 <br>          examination. <br> <br>          On September 8, 1993, Diaz-Martinez shot <br>          two innocent civilians, thus confirming <br>          Dr. Sedra's warnings.  Still, the <br>          psychiatrists (both of whom knew of that <br>          incident) nonetheless recertified Diaz <br>          Martinez for rearming and active duty in <br>          February 1994 without an intervening <br>          psychological evaluation. <br> <br>          To administer their government contract, <br>          the psychiatrists set up a system whereby <br>          each doctor would independently interview <br>          each referred officer, thus ensuring two <br>          detached opinions.  Although the <br>          psychiatrists knew Diaz-Martinez's <br>          stunning history of violence, they  <br>          nonetheless deviated from this protocol <br>          in their February 1994 evaluation.  <br>          Indeed, their entire examination <br>          consisted of one joint interview. <br> <br>          After conducting their joint interview, <br>          the psychiatrists declared Diaz-Martinez <br>          "fit to engage in all of the duties <br>          inherent to a law enforcement agent . . . <br>          (including the use of a regulation <br>          weapon)," without carrying out any <br>          further investigation. <br> <br>          By his own admission, Dr. Hoyos neglected <br>          to read the Caldern Report (which <br>          detailed numerous instances of Diaz- <br>          Martinez's aberrant behavior) before <br>          signing off on Diaz-Martinez's status.  <br>          Dr. Rivera-Gonzalez, who did read the <br>          Caldern Report, brushed it aside as <br>          insufficient to warrant further <br>          investigation. <br> <br>          There is no evidence to suggest that the <br>          psychiatrists  requested or consulted <br>          Diaz-Martinez's current complaint history <br>          before they gave him a clean bill of <br>          health in February 1994. <br> <br>     The presence of these essentially uncontested facts <br>strongly suggests that the district court denied the psychiatrists' <br>motion for summary judgment as a matter of law.  We therefore have <br>appellate jurisdiction.  See Behrens, 516 U.S. at 313. <br>     Exercising that jurisdiction and reviewing the district <br>court's decision de novo, we believe that under at least one <br>plausible scenario depicted by these assumed facts   in which the <br>psychiatrists did not comply with their own evaluation protocol, <br>failed to credit or take seriously the psychologist's report, made <br>only a cursory effort to gather relevant data, and virtually <br>ignored the information that did come to their attention   the <br>psychiatrists carried out an objectively unreasonable course of <br>conduct. <br>     Of course, the psychiatrists have a fallback position:  <br>they maintain that their conduct (whether or not objectively <br>reasonable) did not cause harm to Camilo-Robles because they <br>functioned merely as advisors and did not themselves make the <br>decision to return a fully armed Diaz-Martinez to the streets.  <br>This contention is better suited to a discussion of the merits, but <br>to the extent that some causal connection is necessary to find that <br>a state actor has failed the test of objective legal <br>reasonableness, that nexus exists here. <br>     To be sure, the psychiatrists did not have official <br>authority to rearm Diaz-Martinez and restore him to active duty.  <br>Nonetheless, the summary judgment record makes it pellucid that the <br>psychiatrists knew that their certification of Diaz-Martinez would, <br>in Dr. Hoyos's phrase, "most probably" result in the officer's <br>immediate rearming and return to active duty   as it had in every <br>other previous instance.  The police superintendent likewise <br>attested to the significance of the psychiatrists' role.  According <br>to him, once the examining psychiatrist "certifies in writing that <br>[an officer] is authorized to bear arms . . . we proceed to give <br>back the weapon."  Then, too, the director of the Bayamon CIC <br>stated that the psychiatrists   not the police hierarchy   made the <br>decision to rearm Diaz-Martinez.  Finally, the record permits a <br>reasonable inference that the psychiatrists eschewed easily <br>accessible steps to forestall the rearming of Diaz-Martinez and <br>instead certified his fitness for unrestricted active duty.  <br>Because this is an adequate showing of causation to support a <br>denial of qualified immunity, the psychiatrists' fallback position <br>avails them naught. <br>V.  THE REMAINING APPELLANTS <br>     The plaintiff alleges that the remaining three appellants <br>have supervisory liability under section 1983 for their individual <br>failures to keep Diaz-Martinez unarmed and away from the public.  <br>The affected appellants unanimously deny this averment.  Their <br>separate summary judgment motions maintain that, at the least, <br>qualified immunity attaches.  Consequently, we troll the record in <br>search of facts bearing on the putative immunity of each appellant.  <br>We then examine those collected facts to determine the basis of the <br>district court's decision (and, thus, the existence vel non of <br>appellate jurisdiction).  Lastly, we proceed to determine whether <br>the district court erred in rejecting the qualified immunity <br>defense. <br>                         A.  Diaz-Pagan. <br>     The summary judgment record reveals the following <br>uncontested facts concerning Diaz-Pagan. <br>          In January 1994, Diaz-Martinez joined the <br>          Bayamon CIC.  Throughout his tenure <br>          there, Diaz-Pagan served as the unit's <br>          director. <br> <br>          As director, Diaz-Pagan had the authority <br>          to oversee and countermand his <br>          subordinates' staffing decisions and/or <br>          to dispatch police officers for special <br>          human relations training to minimize the <br>          likelihood of future outbursts. <br> <br>          Diaz-Pagan also possessed the authority <br>          to ensure that Diaz-Martinez would remain <br>          in an administrative position, removed <br>          from public contact. <br> <br>          By early 1994, Diaz-Pagan had read the <br>          Caldern Report and was aware of Diaz- <br>          Martinez's extensive history of violence, <br>          including the 1989 hostage-taking <br>          incident, a 1993 death threat against <br>          Diaz-Martinez's landlord, the September <br>          1993 shootings, and a very recent death <br>          threat against a fellow officer.  This <br>          compendium of incidents led Diaz-Pagan to <br>          advise the area commander, Col. Pablo <br>          Santiago-Gonzalez, that Diaz-Martinez <br>          "displays a pattern of behavior which <br>          requires special attention." <br> <br>          Notwithstanding the foregoing, Diaz-Pagan <br>          neither recommended Diaz-Martinez for <br>          special human relations training nor <br>          intervened to assure that Diaz-Martinez's <br>          assignments would insulate him from <br>          public contact. <br> <br>          Diaz-Pagan did not alert his subordinates <br>          who were in charge of day-to-day <br>          operations to the risk that he himself <br>          foresaw. <br> <br>          Despite his foreknowledge of the imminent <br>          danger that rearming Diaz-Martinez <br>          entailed, Diaz-Pagan did not take any <br>          measures to influence whether Diaz- <br>          Martinez would be rearmed. <br> <br>          Although he professed "surprise[]" when <br>          he learned (prior to the incident <br>          involving Camilo-Robles) that Diaz- <br>          Martinez's weapon had been restored, <br>          Diaz-Pagan acquiesced in that action and <br>          did not attempt to rescind it. <br> <br>          When Diaz-Pagan left for vacation on <br>          April 18, 1994, he neglected to inform <br>          his temporary replacement, Capt. Jorge <br>          Hernandez-Colon, of Diaz-Martinez's <br>          disciplinary record. <br> <br>                      B.  Santiago-Gonzalez. <br> <br>     The summary judgment record reveals the following <br>uncontested facts concerning Santiago-Gonzalez. <br>          Santiago-Gonzalez served as Bayamon area <br>          commander during the time in question. <br> <br>          Santiago-Gonzalez knew of Diaz-Martinez's <br>          violent history.  He had received the <br>          Caldern Report and had personally <br>          overseen the efforts to calm the affected <br>          neighborhood in the wake of the 1993 <br>          double shooting. <br> <br>          Diaz-Pagan identified Santiago-Gonzalez <br>          as his "boss" and as "the person who has <br>          control of the Area."  Thus, the chain- <br>          of-command observations set forth as to <br>          Diaz-Pagan apply with at least equal <br>          force to Santiago-Gonzalez. <br> <br>          The superintendent of police testified <br>          that: "It is the discretion of the Area <br>          Commander [Santiago-Gonzalez] to assign <br>          [officers] to the different units." <br> <br>          Santiago-Gonzalez enjoyed the discretion <br>          to assign Diaz-Martinez to desk duty or <br>          other administrative work, yet failed to <br>          use this power to make certain that the <br>          rogue officer would not come in contact <br>          with the public. <br> <br>                        C.  Toledo-Davila. <br> <br>     The summary judgment record reveals the following <br>uncontested facts concerning Toledo-Davila. <br>          Toledo-Davila served as police <br>          superintendent throughout the time in <br>          question. <br> <br>          The police superintendent is the only <br>          person empowered to assign a regulation <br>          weapon to a member of the police force, <br>          and has plenary discretion to withhold or <br>          confiscate a weapon in those cases in <br>          which he deems such action appropriate.  <br>          See Puerto Rico Police Department <br>          Personnel Reg.  9.3(1)(a), (d). <br> <br>          Toledo-Davila knew the details of Diaz- <br>          Martinez's violent record.  He also knew <br>          that the Puerto Rico Department of <br>          Justice had assumed control of the <br>          investigation into the September <br>          shootings, and that as of February 1994 <br>          its investigation was ongoing. <br> <br>          Toledo-Davila abdicated his duty to <br>          exercise  independent judgment in <br>          determining which officers should bear <br>          arms.  In that respect, he stated that <br>          once a psychiatrist certifies an officer <br>          as fit for duty, "the superiors are <br>          notified . . . [a]nd then we proceed to <br>          give back the weapon." <br> <br>                   D.  Appellate Jurisdiction. <br> <br>     After full consideration of the record, we believe that <br>the district court supportably assumed a set of documented facts <br>from which it denied the supervisors' motions for summary judgment <br>as a matter of law. Consequently, we have jurisdiction to review <br>the district court's decision. <br>     Our rationale is straightforward.  On the record as it <br>stands, the facts as to these appellants' powers, functions, <br>conduct, and omissions are not seriously disputed, nor are the <br>facts as to what corrective measures were available to them.  This <br>makes it very likely that the district court assumed the facts to <br>be as stated.  That the district court did not wait for the <br>plaintiff's opposition   a practice that we do not commend   <br>buttresses this conclusion and suggests that the court did not <br>believe it necessary for the plaintiff to adduce additional facts <br>because the facts that already were in the record, assumed as true <br>and interpreted favorably to the plaintiff, were insufficient as a <br>matter of law to warrant the application of qualified immunity.  <br>Thus, we turn to the correctness of that conclusion, again taking <br>the supervisors one by one. <br>               E.  Qualified Immunity   Diaz-Pagan. <br>     Diaz-Pagan trumpets that Diaz-Martinez was not under his <br>direct command, and that, in all events, he was on vacation when <br>Diaz-Martinez allegedly assaulted Camilo-Robles.  Based largely on <br>these undisputed facts, Diaz-Pagan maintains that he deserves <br>qualified immunity because there is no causal link between his <br>conduct and the assault on Camilo-Robles. <br>     This argument speaks less to qualified immunity and more <br>to the merits   and a denial of summary judgment on the merits, <br>even in a section 1983 case, is not immediately appealable.  SeeDomegan, 859 F.2d at 1061.  Still, a plausible causal chain is <br>relevant to the objective legal reasonableness of a state actor's <br>conduct and, viewed in that light, Diaz-Pagan's contentions are not <br>entirely off base.  At any rate, on the assumed set of facts the <br>court supportably could have concluded that Diaz-Martinez presented <br>a serious risk of harm and that Diaz-Pagan knew as much; put <br>another way, Diaz-Pagan "was put on notice of behavior which was <br>likely to result in the violation of the constitutional rights of <br>citizens."  Febus-Rodriguez, 14 F.3d at 93.  The court likewise <br>could have concluded that Diaz-Pagan had the authority to prevent <br>recurrences of Diaz-Martinez's erratic behavior, but nevertheless <br>failed to take obvious steps within his power to reduce or <br>eliminate that risk.  Similarly, the court could have found the <br>requisite causal connection.  Finally, the court could have <br>concluded that Diaz-Pagan's omission was outside the range of <br>mistaken judgments that the qualified immunity doctrine protects.  <br>Seen in that light, Diaz-Pagan's conduct was not objectively <br>reasonable and, thus, qualified immunity does not attach. <br>          F.  Qualified Immunity   Santiago-Gonzalez.   <br>     Santiago-Gonzalez similarly claims qualified immunity on <br>the ground that the causal connection between his functions and <br>Diaz-Martinez's transgressions is too attenuated to justify the <br>imposition of section 1983 liability.  As above, we examine <br>causation insofar as it bears on qualified immunity (i.e., as an <br>element of objective legal reasonableness). <br>     On the facts proffered by Santiago-Gonzalez and amplified <br>elsewhere in the record, it is plain that Santiago-Gonzalez knew <br>that Diaz-Martinez was a ticking time bomb and also knew (or should <br>have known) that Diaz-Martinez, if restored to active duty, was <br>likely to commit acts that would violate the constitutional rights <br>of others.  As was true of Diaz-Pagan, Santiago-Gonzalez had both <br>the authority and the opportunity to prevent Diaz-Martinez from <br>interacting with the public, yet failed to intervene.  Accordingly, <br>his indifference and the assault on Camilo-Robles were causally <br>linked.  In a nutshell, on the assumed set of facts revealed by the <br>summary judgment record the district court supportably could <br>conclude that Santiago-Gonzalez acted in an objectively <br>unreasonable fashion, thus exempting his conduct from the <br>prophylaxis of qualified immunity. <br>             G.  Qualified Immunity   Toledo-Davila. <br>     At the end of the day, Toledo-Davila maintains that he <br>and the officers under his command followed proper police <br>procedures when rearming Diaz-Martinez.  He adds that in all events <br>he acted in good faith   and qualified immunity protects officers <br>who make good-faith mistakes.  See Anderson, 483 U.S. at 641.  <br>Although we find no evidence to suggest that Toledo-Davila (or the <br>other appellants, for that matter) acted in bad faith, we <br>nonetheless conclude that Toledo-Davila cannot wrap himself in the <br>mantle of qualified immunity. <br>     The extant record eloquently refutes Toledo-Davila's <br>assertion that his conduct was, as a matter of law, objectively <br>reasonable.  Toledo-Davila knew of Diaz-Martinez's vicious <br>propensities and the peril presented; he had the sole de jure <br>responsibility to authorize rearming; and yet he treated Diaz- <br>Martinez not as a dangerous sociopath, but as any other officer.  <br>To cinch matters, a causal relationship existed between Toledo- <br>Davila's conduct and the incident at the Bayamon Judicial Center.  <br>We think that the police superintendent's latitudinarian approach <br>in the face of Diaz-Martinez's patent instability was so far <br>outside the realm of reasonableness that it rendered him ineligible <br>for protection under the qualified immunity doctrine. <br> <br>VI.  CONCLUSION <br>     We add an eschatocol of sorts.  This is a hard case, for <br>it does not readily fit the mold cast by the Court's precedents.  <br>We believe it is possible that the Court, when confronted with a <br>claim of qualified immunity in a deliberate indifference case, may <br>recognize the awkwardness of the fit and formulate a special set of <br>rules to cover such situations.  Until further guidance emerges, <br>however, we have little choice but to apply the existing qualified <br>immunity paradigm across the board.  We have endeavored to do so <br>here. <br>     We need go no further.  Qualified immunity protects "all <br>but the plainly incompetent or those who knowingly violate the <br>law."  Malley v. Briggs, 475 U.S. 335, 341 (1986).  In this case, <br>none of the appellants consciously chose to violate the law.  If <br>the assumed facts indicated that they were merely inattentive or <br>careless, then qualified immunity would shield them despite the <br>fact that Diaz-Martinez violated the plaintiff's clearly <br>established rights.  See, e.g., Ringuette, ___ F.3d at ___ [slip <br>op. at 12]; Brennan, 888 F.2d at 194.  Here, however, indulging <br>reasonable pro-plaintiff inferences, the record shows conduct on <br>the appellants' part that can best be described as reckless and <br>wanton   conduct that is emblematic of the plain incompetency to <br>which the Malley Court alluded.  The appellants' behavior is, <br>therefore, outside the wide band of mistaken police judgments that <br>the qualified immunity doctrine is intended to shield and the <br>appellants, to a man, are not entitled to summary judgment. <br> <br>Affirmed.  Costs in favor of appellee.</pre>

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