          United States Court of Appeals
                        For the First Circuit


No. 17-1838

              SANTOS ESCALERA-SALGADO; OLGA PAGÁN-TORRES;
                     J.E.P., Minor; D.E.P., Minor,

                        Plaintiffs, Appellants,

                                  v.

                            UNITED STATES,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]


                                Before

                   Torruella, Thompson, and Kayatta,
                            Circuit Judges.


     Guillermo Ramos Luiña for appellants.
     Brad Hinshelwood, Attorney, Appellate Staff, Civil Division,
U.S. Department of Justice, with whom Chad A. Readler, Acting
Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Mark B. Stern, Attorney, Appellate Staff,
Civil Division, U.S. Department of Justice, were on brief, for
appellee.


                           December 19, 2018
             KAYATTA, Circuit Judge.       Santos Escalera-Salgado, his

wife, and their two minor children sued the United States under

the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-

2680, seeking to recover damages for injuries suffered when a

Department of Homeland Security agent shot Escalera during the

execution of a search warrant at Escalera's residence.                 The

district court entered judgment for the United States after a bench

trial.   For the following reasons, we affirm.

                                    I.

             On   October 29,   2011,   Puerto   Rico   Police   Department

officers and U.S. Homeland Security Investigations (HSI) agents

convened to execute a search warrant at Escalera's residence.1

Puerto Rico Police Department officers informed the HSI agents

that Escalera was a drug trafficker and a gang leader, and that he

had large amounts of drugs, firearms, and cash stashed at his

residence.        Because of these risk factors, HSI was tapped to

"clear" the residence before local police conducted the search.

Before daylight, an HSI agent knocked on Escalera's door, announced

police presence, and -- after receiving no response -- forcibly

entered the apartment.      There were no lights on in the apartment



     1 In recounting the facts, our task is greatly simplified by
the district court's findings of fact crediting the government's
version of events leading up to the shooting. Presumably in view
of the applicable standard of review, Escalera does not challenge
this finding, so we relate the facts as reported by the government.


                                   - 2 -
other than the powerful flashlights held by the agents.        HSI agent

Menéndez saw Escalera's silhouette emerging from a bedroom.            In

Spanish, Menéndez yelled "police," and ordered Escalera to show

his hands and stay still. Ignoring these commands, Escalera lifted

his shirt, reached for his waistband, and moved for cover behind

a bedroom wall.    His waistband contained no discernible "bulge."

Before Escalera drew his hand from his waistband area, both

Menéndez and another HSI agent shot at Escalera's center mass.

One of the two rounds lodged in Escalera's elbow.           A subsequent

search revealed no weapon either on Escalera or in the apartment.

The search did, however, turn up three kilograms of cocaine, $4,000

in U.S. currency, and a gun cleaning kit.

            Escalera, together with his wife and minor children,

filed an FTCA claim for damages stemming from his gunshot injury.

The parties consented to have the case adjudicated by a magistrate

judge ("the district court").        Following a bench trial, the

district court ruled for the United States.         In so doing, the

district court assumed that Escalera had proven a claim of common-

law battery under Puerto Rico law.         It rested its decision,

instead, upon two conclusions:        First, that even if the HSI

officers'   conduct   constituted   common-law   battery,    the   United

States could not be held liable unless the unlawfulness of the

officers' conduct was clearly established at the time they acted;

and second, that at the time the officers acted, no precedent


                                - 3 -
clearly   established      that   the   officers'        conduct    was   unlawful.

Escalera timely appealed.

                                        II.

           In    passing    the   FTCA,       Congress    provided     "a   limited

congressional waiver of the sovereign immunity of the United States

for tortious acts and omissions committed by federal employees

acting within the scope of their employment."                      Díaz-Nieves v.

United States, 858 F.3d 678, 683 (1st Cir. 2017); see also 28

U.S.C. § 1346(b)(1). In general, the FTCA does not waive sovereign

immunity for intentional torts, but it does allow claims against

the United States for "assault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution" arising from

"acts or omissions of investigative or law enforcement officers of

the United States Government."                28 U.S.C. § 2680.           To assess

liability under the FTCA, we look to "the law of the place where

the act or omission occurred."          Id. § 1346(b)(1).          Puerto Rico law

therefore supplies the substantive rules of decision in this case.

           The district court's qualified immunity analysis relied

upon our circuit's oft-repeated assumption "that Puerto Rico tort

law would not impose personal liability" in tort actions "where

the officers would be protected in Bivens claims by qualified

immunity."2     Solis-Alarcón v. United States, 662 F.3d 577, 583 (1st


     2 See generally Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).


                                    - 4 -
Cir. 2011); see also Soto-Cintrón v. United States, 901 F.3d 29,

35 (1st Cir. 2018) ("We also remain mindful of our precedent

holding that the scope of liability under Puerto Rico false

imprisonment      mirrors   liability        under    qualified     immunity

principles.").     This assumption was never based on Puerto Rican

authority expressly embracing the "clearly established" inquiry

employed in Bivens cases.        Rather, the assumption was based on a

"parallel" between Puerto Rico's tort law and federal qualified

immunity principles. Soto-Cintrón, 901 F.3d at 35; see also Solis-

Alarcón, 662 F.3d at 583 (noting that Puerto Rico cases that

balance the state's law enforcement function with the right of an

injured citizen to be compensated for wrongful state action echo

the "view that animates federal qualified immunity doctrine").

Making this assumption has allowed us to bypass the "significant

question[s]" of "whether any local court could impose damage

liability on federal officers where they would be exempt in a

federal lawsuit and whether Congress under the FTCA would expect

the federal government to shoulder such liability."           Díaz-Nieves,

858 F.3d at 687 (quoting Solis-Alarcón, 662 F.3d at 583–84). These

questions   are    significant     because    the    "legislative   history

accompanying the 1974 amendment [to the FTCA] makes clear that

Congress intended 'to make the Government independently liable in

damages for the same type of conduct that is alleged to have

occurred in Bivens (and for which that case imposes liability upon


                                   - 5 -
the individual Government officials involved).'"      Rodríguez v.

United States, 54 F.3d 41, 45–46 (1st Cir. 1995) (quoting S. Rep.

No. 93-588, at 3 (1973), as reprinted in 1974 U.S.C.C.A.N. 2789,

2791).

          We need not decide in this case whether our repeated

assumption concerning the availability of a qualified immunity

defense in an FTCA action arising in Puerto Rico is correct.

Escalera makes no argument that the district court erred by

assuming the defense to be applicable.     Instead, Escalera argues

that the district court erred in concluding that the officers did

not violate clearly established law.3     Turning our attention to

that argument, we ask whether the officers' actions "violate[d]

clearly established statutory or constitutional rights of which a

reasonable person would have known."     Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).   In assessing whether an official's conduct

violated clearly established law, we typically reason by analogy,

asking whether there is any prior case in which the use of force

was deemed unlawful under circumstances reasonably similar to

those present in the case at hand.     See Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011) ("We do not require a case directly on point,



     3 Escalera also devotes a section of his brief to the argument
that the district court erred in its assessment of the common law
of battery in Puerto Rico.       But because the district court
ultimately assumed that Escalera proved a battery, we need not
consider this issue.


                               - 6 -
but    existing   precedent   must    have    placed   the    statutory       or

constitutional question beyond debate."); Begin v. Drouin, 908

F.3d 829, 836 (1st Cir. 2018) ("[A] case need not be identical to

clearly establish a sufficiently specific benchmark against which

one may conclude that the law also rejects the use of deadly force

in circumstances posing less of an immediate threat.").                 When a

defendant    invokes   qualified     immunity,   the   burden      is   on   the

plaintiff to show that the defense is inapplicable.                See Rivera-

Corraliza v. Morales, 794 F.3d 208, 215 (1st Cir. 2015).                 Here,

then, Escalera had the burden to identify "controlling authority

or a robust consensus of persuasive authority such that any

reasonable official in the defendant's position would have known

that   the    challenged   conduct    is     illegal   in    the    particular

circumstances that he or she faced."             Id. at 214–15 (internal

quotation marks omitted).

             In the briefing and at oral argument, Escalera attempted

to distinguish cases in which circuit courts have held that an

officer's use of deadly force was reasonable.          See Carnaby v. City

of Houston, 636 F.3d 183 (5th Cir. 2011) (use of force was

reasonable); Ontiveros v. City of Rosenberg, 564 F.3d 379 (5th

Cir. 2009) (same); Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991)

(same); Young v. City of Killeen, 775 F.2d 1349 (5th Cir. 1985)

(same); Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001) (same).

But Escalera failed to compare his shooting to the facts of a


                                   - 7 -
single case in which an officer's use of force was held to be

constitutionally excessive.       Nor is this a case in which the HSI

officers' conduct was self-evidently unlawful.         The officers had

ample reason to suspect danger: (1) They had been warned that

Escalera was a gang leader and had guns in the apartment; (2) No

one answered the door when beckoned; (3) Escalera did not comply

with police commands to show his hands and to remain still; and

(4) Escalera "lifted his shirt, reached for his waistband, and

moved for cover behind a bedroom wall."       Escalera's best point is

that the officers did not actually see a weapon or the "bulge" of

an apparent weapon.   But he cites no case law clearly establishing

that actually seeing a weapon is the sine qua non of reasonableness

in circumstances such as those presented here -- where the officers

were forewarned that Escalera might well be armed and dangerous,

and where Escalera's behavior would lead almost anyone to believe

he was reaching for a weapon.       The district court therefore did

not err in dismissing Escalera's claim on the clearly-established

step of qualified immunity analysis.4

                                   III.

          For   the   foregoing    reasons,   we   affirm   the   district

court's judgment.


     4The district court also properly dismissed Escalera's wife's
and children's claims because they are "wholly derivative and
depend[] on the viability of the underlying claim of the relative
or loved one." Díaz-Nieves, 858 F.3d at 689.


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