
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  and               _______________              __________________________          Totti,  Rodrigues-D az &  Fuentes were  on brief,  for defendant-          _________________________________          appellant.               Peter  Berkowitz, with  whom  Roberto Rold n  Burgos was  on               ________________              ______________________          brief, for plaintiffs-appellees.                              _________________________                                    April 24, 1997                              _________________________                    SELYA,  Circuit Judge.  In Johnson v. Jones, 115 S. Ct.                    SELYA,  Circuit Judge.                            _____________      _______    _____          2151,   2156-59  (1995),   the   Supreme   Court  discussed   the          circumstances  in which  a  district court's  denial of  a public          official's attempt to  dispose of  a claim for  money damages  by          means of a pretrial motion asserting qualified  immunity might be          immediately appealable.  Shortly thereafter, in Stella v. Kelley,                                                          ______    ______          63  F.3d  71,  73-77 (1st  Cir.  1995),  we  applied Johnson  and                                                               _______          elaborated  upon  our understanding  of  it.   The  interlocutory          appeal in  this case requires us to  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  the issue of  appealability vel non,                                                                   ___ ___          we  first set the stage.  In  1984, Miguel D az Mart nez (Officer          D az) became  a  member of  the Puerto  Rico Police  Force.1   He          inspired approximately eighteen  disciplinary complaints, many of          which involved the profligate brandishing or  use of his official          firearm without adequate cause.  The pi ce de r sistance occurred                                               _____ __ __________          on August  17, 1989,  when, after  assaulting and  threatening to          kill his wife, Officer D az captured a police station at gunpoint          and held several  fellow officers hostage.   As a result  of this          incident,  he  was cashiered  and  involuntarily  committed to  a          mental institution for three weeks.                    Little daunted, Officer D az pressed  an administrative          appeal.   Despite his  earlier escapades, he  eventually regained                                        ____________________               1Although  Officer D az  is  a defendant  in the  underlying          suit, he is not a party to the appeal.                                          2          his position  on the  force.  At  the time  of his  reinstatement          (March 25, 1993), and throughout  the period material hereto, the          appellant, Tom s V zquez Rivera (V zquez), served as an assistant          superintendent of  the  police  force and  the  director  of  its          "Auxiliary  Superintendency  for  Inspections   and  Disciplinary          Affairs"  (having assumed  that post  in August  1990).   In this          capacity, V zquez  was responsible,  inter alia, for  maintaining                                               _____ ____          administrative complaint records, identifying recidivist officers          (those  who  repeatedly  violated  disciplinary  standards),  and          ensuring that "problem" officers  received special training.  The          plaintiffs allege that, when Officer D az rejoined the force, the          personnel  director  ordered   an  investigation  preliminary  to          authorizing  him  to  carry  a  firearm,  and  that  one  of  the          appellant's  subordinates  gave  D az  a clean  bill  of  health,          informing  the assigned  investigator  that D az's  file did  not          contain any mention of  past complaints or any other  indicium of          his disquieting  history.   They  also  allege that  V zquez,  in          derogation of  his assigned  duties, did not  maintain up-to-date          files, and, consequently, neither identified D az as a recidivist          officer  nor recommended that he undergo remedial training.  As a          result,  Officer  D az  returned  to duty  without  enduring  any          probationary  period,  without receiving  any  remedial training,          and,  after a  delay to  permit the  completion of  the personnel          director's investigation, without having any  restrictions on his                                          3          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,          a  location which  the police  regarded as  a  high-tension area.          That afternoon, while on guard duty, he  accosted the plaintiffs'          decedent, Jos  Manuel Rosario D az (Jos ), a 19-year-old resident          of  the  project,  and  ordered him  to  retrieve  identification          documents  from his  apartment.   When Jos   did not  comply with          sufficient  alacrity, Officer  D az shouted  obscenities at  him.          Jos 's  sister,  Mar a   Rosario  D az   (Mar a),  attempted   to          intervene.    A scuffle  ensued.   Officer  D az drew  his police          revolver, fired a bullet  at Mar a (wounding her), and  then shot          and killed Jos .                    In due  season, Mar a and other  family members brought          suit  under 42 U.S.C.    1983 (1994).   They alleged that Officer          D az and several supervisory police officials, including V zquez,          had violated  Mar a's and Jos 's constitutional  rights.  V zquez          moved  for summary  judgment,  raising, inter  alia, a  qualified                                                  _____  ____          immunity defense.  The district court denied his motion.  V zquez          now prosecutes this interlocutory appeal.                    Section  1983 provides  for a  private right  of action          against  public officials who, under  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.                                          4          rights  violations  is shielded  from  claims  for damages  under          section  1983 as long as his conduct  did not violate rights that          were  "clearly  established"  under  the  Constitution  or  under          federal  law.   See Harlow  v. Fitzgerald,  457 U.S.  800, 818-19                          ___ ______     __________          (1982); Buenrostro v. Collazo,  973 F.2d 39, 42 (1st  Cir. 1992).                  __________    _______          For purposes of this  defense, a right is clearly  established if          the  "contours  of  the right  [are]  sufficiently  clear that  a          reasonable  official  would  understand  that what  he  is  doing          violates that right."   Anderson v. Creighton, 483 U.S.  635, 640                                  ________    _________          (1987).                    Interlocutory  orders (such as  orders denying pretrial          motions to  dismiss or for  summary judgment) ordinarily  are not          appealable  as of  right at the  time they  are entered.   See 28                                                                     ___          U.S.C.    1291 (1994).  But where, as here, a defendant seeks the          shelter of qualified immunity  by means of a pretrial  motion and          the nisi prius  court denies  the requested  relief, a  different          result sometimes  obtains.   If  the  pretrial rejection  of  the          qualified immunity  defense is  based on  a purely  legal ground,          such  as a finding that  the conduct described  by the plaintiff,          assuming it occurred,  transgressed a clearly  established right,          then  the  denial  may  be challenged  through  an  interlocutory          appeal.  See  Johnson, 115  S. Ct.  at 2155-56.   Conversely,  "a                   ___  _______          defendant, entitled  to invoke a qualified-immunity  defense, may          not appeal a district  court's summary judgment order insofar  as          that order determines  whether or  not the  pretrial record  sets          forth a `genuine'  issue of fact for  trial."  Id. at  2159.  The                                                         ___                                          5          dividing line that separates an immediately appealable order from          a  nonappealable  one in  these purlieus  is  not always  easy to          visualize.  In Stella, we attempted to illuminate it:                         ______                    Thus, on  the  one hand,  a district  court's                    pretrial rejection of  a proffered  qualified                    immunity    defense    remains    immediately                    appealable  as  a  collateral  order  to  the                    extent that  it turns on a pure issue of law,                    notwithstanding  the  absence   of  a   final                    judgment.    On  the other  hand,  a district                    court's  pretrial  rejection  of a  qualified                    immunity    defense   is    not   immediately                    appealable  to the  extent  that it  turns on                    either an issue of fact or an issue perceived                    by  the trial court  to be an  issue of fact.                    In such a  situation, the  movant must  await                    the entry of  final judgment before appealing                    the adverse ruling.          Stella, 63 F.3d  at 74  (citations omitted).   Under Johnson  and          ______                                               _______          Stella, then,  a defendant who, like  V zquez, has unsuccessfully          ______          sought summary judgment based  on qualified immunity is permitted          to  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.  There, the          Court noted that  "[d]enial of summary judgment  often includes a          determination  that  there  are controverted  issues  of material          fact"  and admonished that Johnson "does not mean that every such                                     _______          denial  of summary judgment  is nonappealable."   Behrens, 116 S.                                                            _______          Ct.  at 842.   Rather,  when  a court,  in denying  a motion  for          summary judgment premised on qualified immunity,  determines that          certain  conduct  attributed  to  a defendant,  if  proven,  will                                          6          suffice  to  show a  violation  of clearly  established  law, the          defendant may  assert on  interlocutory appeal  "that all  of the          conduct which the  District Court  deemed sufficiently  supported          for  purposes  of summary  judgment  met the  Harlow  standard of                                                        ______          `objective  legal reasonableness.'"   Id.  (quoting Harlow).   To                                                ___           ______          this extent, Behrens  places a  gloss on Johnson  and reopens  an                       _______                     _______          appellate  avenue  that  some  had  thought  Johnson  foreclosed.                                                       _______          Still,  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  post-trial entry of final judgment.   Stella, 63 F.3d at 74-                                                     ______          75.   Thus, Stella survives the emergence of Behrens fully intact                      ______                           _______          and remains the law of this circuit.                    The  appeal at hand withers  in the hot  glare of these          precedents.  Under section 1983, a supervisor may be found liable          on the basis of his  own acts or omissions.   See Maldonado-Denis                                                        ___ _______________          v. Castillo-  Rodriguez, 23  F.3d  576, 581-82  (1st Cir.  1994).             ____________________          Such  liability can arise out  of participation in  a custom that          leads  to a violation of constitutional rights, see, e.g., id. at                                                          ___  ____  ___          582  (citing   other  cases),   or  by  acting   with  deliberate          indifference to  the constitutional rights of  others, see, e.g.,                                                                 ___  ____          Gutierrez-Rodriguez  v. Cartagena,  882 F.2d  553, 562  (1st Cir.          ___________________     _________          1989) (citing other cases).  The plaintiffs' case against V zquez          hinges  on his  alleged deliberate  indifference; they  claim, in                                          7          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   without   first   having   been  retrained   and          rehabilitated),  and   therefore,  that  the   tragic  events  of          September 8 would not have occurred.                    V zquez's motion for brevis disposition challenged this                                         ______          theory,  legally and factually.  In adjudicating it, the district          court made a binary determination.  First, the court ruled that a          reasonable official  in V zquez's position would  have known that          the "failure to take  . . . remedial actions concerning  [a rogue          officer] could  create supervisory liability."   This  is a  pure          conclusion of law as to which, in the qualified immunity context,          an immediate  appeal  lies.   See  Behrens, 116  S. Ct.  at  839;                                        ___  _______          Stella, 63  F.3d at 77;  see also Mitchell  v. Forsyth, 472  U.S.          ______                   ___ ____ ________     _______          511, 528 n.9 (1985)  (acknowledging that the question  of whether          the conduct attributed  by a plaintiff to a  particular defendant          violates  a  clearly  established   right  is  a  "purely  legal"          question).                    Nonetheless,  we agree  with the  lower court  that the          applicable  law was  clearly  established; it  is beyond  serious          question that, at  the times relevant hereto, a reasonable police          supervisor, charged with the duties that V zquez bore, would have          understood  that he  could  be held  constitutionally liable  for          failing  to  identify  and  take remedial  action  concerning  an          officer with demonstrably dangerous predilections and a checkered                                          8          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          a  basis for supervisory liability if it is causally connected to          the actions that work the direct constitutional injury").  To the          extent  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  motion for  summary judgment because,  regardless of          legal  theory,   the  evidence  was   insufficient  to  establish          deliberate  indifference on his part,  and, thus, he was entitled          (at  the  least)  to  qualified  immunity.   But  Judge  Laffitte          rejected  this argument  on the  basis that the  record contained          controverted  facts  and that,  if a  factfinder were  to resolve          those  disputes favorably to  the plaintiffs, he  could then find          that V zquez's supervision of the disciplinary affairs bureau was          so pathetic that his conduct constituted deliberate  indifference          to  the plaintiffs' rights.3   Since V zquez does  not argue that                                        ____________________               3This rejection was factbound.   In denying V zquez's motion          for brevis disposition, Judge  Laffitte, citing various exhibits,              ______          commented that "the record is replete with evidence that [Officer          D az's] disciplinary file was poorly maintained."  The judge then          pointed  to   evidence  indicating  "that  many   of  the  police          department's disciplinary files on its officers were incomplete,"          and  noted  specifically evidence  to  the  effect "that  V zquez          failed to maintain [Officer D az's] disciplinary  records, failed          to identify him  as an  officer [who had  engaged in]  repetitive          conduct, and failed to  refer him for training."   Judge Laffitte          further  observed that,  had the  file been  properly maintained,                                          9          the facts asserted  by the plaintiffs,  even if altogether  true,          fail to show deliberate indifference   he argues instead what his          counsel termed  at oral argument  "the absence  of facts,"  i.e.,          that  the facts asserted by  the plaintiffs are untrue, unproven,          warrant a  different spin, tell only  a small part of  the story,          and  are   presented  out  of  context     the  district  court's          determination is not reviewable on an  interlocutory appeal.  See                                                                        ___          Behrens,  116 S.  Ct. at  842; Johnson,  115 S.  Ct. at  2156-59;          _______                        _______          Berdec a-P rez v. Zayas-Green, ___ F.3d  ___, ___ (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  need go no further.   To the  extent that V zquez's          challenge to  the  order denying  summary  judgment is  ripe  for          review, it is impuissant.                    Affirmed.  Costs to appellees.                    Affirmed.  Costs to appellees.                    ________   __________________                                        ____________________          Officer  D az likely would have been evaluated as unfit to return          to regular duty.  In the court's view, this (and other) evidence,          taken  in the  light most  complimentary to  the plaintiffs,  was          "sufficient  to create  a genuine  issue of  material fact  as to          whether [V zquez]  was deliberately indifferent and  whether this          failure to  maintain an  accurate file on  [Officer D az]  caused          [the plaintiffs'] injuries."                                          10
