
USCA1 Opinion

	




                                 ____________________          No. 91-2337                              LEONEL BUENROSTRO, ET AL.,                                Plaintiffs, Appellees,                                          v.                 PABLO COLLAZO, a/k/a PABLO COLLAZO MARRERO, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                            and Skinner,* District Judge.                                          ______________                                 ____________________               John  F. Nevares,  with  whom Annabel  Rodriguez,  Solicitor               ________________              __________________          General, Reina Colon, Assistant Solicitor General, Silvio Cancio,                   ___________                               _____________          and Saldana, Rey & Alvarado were on brief, for appellants.              _______________________               Francisco A. Besosa, with whom  Goldman Antonetti Ferraiuoli               ___________________             ____________________________          & Axtmayer was on brief, for appellees.          __________                                 ____________________                                  August 26, 1992                                 ____________________          ____________________          *of the District of Massachusetts, sitting by designation.                    SELYA,  Circuit   Judge.     Plaintiff-appellee  Leonel                    SELYA,  Circuit   Judge                            _______________          Buenrostro, portraying himself  as a victim of  mistaken identity          and misplaced  zeal, sued  a number of  police officers  under 42          U.S.C.   1983  (1988).1  The defendants  unsuccessfully attempted          to  pretermit the  suit  on  qualified  immunity  grounds.    The          district  court  denied their  motion for  summary judgment.   We          affirm.                                          I                                          I                                          _                    Consistent with the method of Fed. R. Civ. P. 56(c), we          take  the  record in  the  light  most  hospitable to  the  party          opposing summary judgment  and indulge all reasonable  inferences          favorable to him.   See Garside v. Osco Drug, Inc.,  895 F.2d 46,                              ___ _______    _______________          48 (1st Cir. 1990).                    On   March  29,  1988,  the  extradition  squad  raided          Buenrostro's home, hauled him out, and arrested him pursuant to a          "wanted person" request  (WPR) from the State  of New York.   The          police admittedly  acted in the  absence of an arrest  warrant, a          search  warrant,  or  any  exigent  circumstances  sufficient  to          justify the intrusion.                    As  a result of  this arrest, appellee  was handcuffed,                                        ____________________               1The defendants include Pablo Collazo Marrero, Angel Morales          Gonez, Edwin Teruel,  and Jose M. Collazo, members  of the Puerto          Rico  Police   Department's  Division  of  Special   Arrests  and          Extraditions;  Armando Tapia Suarez,  the head of  that Division;          and  Carlos  Lopez  Feliciano,   the  Superintendent  of  Police.          Although other defendants were also sued, these six  officers are          the sole appellants  in this proceeding.  For  ease in reference,          we  disregard for  the  time  being  that  Buenrostro's  conjugal          partnership and  family members  are named  plaintiffs and  treat          Buenrostro as if he alone was the plaintiff-appellee.                                            2          taken   to   police   headquarters,  and   locked   in   a  cell.          Subsequently,  a  local  magistrate  determined  that  there  was          probable  cause to detain  him while extradition  proceedings ran          their course.  Despite a number of red flags   e.g., Buenrostro's          claims that the  probable-cause determination was based  on false          accusations  mouthed by  members of  the  extradition squad,  his          continuing  protests  of   innocence,  significant  discrepancies          between the description  of the suspect mentioned in  the WPR and          Buenrostro's physical characteristics, and available (but unused)          fingerprint  evidence   Buenrostro  remained immured in  what the          district court termed "horrific conditions"  for thirty-one days.          Finally,  a more thorough  examination of New  York's extradition          request was undertaken, and the Puerto Rican authorities admitted          that they had arrested the wrong man.  Buenrostro was released.                    Not long thereafter,  Buenrostro sued for damages.   He          alleged  in his complaint that his constitutional rights had been          infracted in various ways.  He also asserted pendent claims.   In          due course,  the appellants  sought brevis  disposition based  on                                              ______          qualified immunity.  When the district court denied their Rule 56          motion, Buenrostro  v. Collazo, 777  F. Supp. 128  (D.P.R. 1991),                  __________     _______          they filed this appeal.                                          II                                          II                                          __                                          A.                                          A.                                          __                    Ordinarily, we would not  entertain an immediate appeal          from a denial of summary judgment.  See, e.g., Fisichelli v. City                                              ___  ____  __________    ____          Known as the  Town of Methuen, 884  F.2d 17, 18 (1st  Cir. 1989);          _____________________________                                          3          see also 28 U.S.C.    1291 (1988) ("[t]he courts of appeals . . .          ___ ____          shall have  jurisdiction of appeals  from all final  decisions of                                                        _____          the  district courts")  (emphasis supplied).   Nevertheless,  the          denial  of  a  government  actor's  dispositive  pretrial  motion          premised on qualified immunity falls within a narrow exception to          the finality principle and is, therefore, immediately appealable.          See  Mitchell v.  Forsyth, 472  U.S.  511, 524-30  (1985); Roque-          ___  ________     _______                                  ______          Rodriguez  v. Lema  Moya,  926  F.2d 103,  105  (1st Cir.  1991);          _________     __________          Fisichelli, 884 F.2d at 18.   The window of opportunity, however,          __________          is tiny.   "Notwithstanding that  we have jurisdiction  to review          the  denial of qualified immunity midstream, any additional claim          presented   to  and   rejected  by   the   district  court   must          independently satisfy the collateral-order exception to the final          judgment rule  in order for us to  address it on an interlocutory          appeal."    Roque-Rodriguez,  926  F.2d  at  105  (citations  and                      _______________          internal  quotation marks omitted); see also Domegan v. Fair, 859                                              ___ ____ _______    ____          F.2d 1059, 1061-62 (1st Cir. 1988).                    In this case, there is no other basis for earlier-than-          usual review.  It follows  inexorably that, for present purposes,          we must  focus  exclusively  upon  the question  of  whether  the          defense  of qualified  immunity, as  invoked  by the  appellants,          shielded them  from  liability for  money damages,  and from  the          concomitant  burden of  a  trial,  arising  out  of  the  alleged          constitutional  deprivation.   See Roque-Rodriguez,  926 F.2d  at                                         ___ _______________          105-06.                                          B.                                          B.                                          __                                          4                    Appealability aside, appellate review of district court          orders granting or denying summary judgment works the same way in          qualified  immunity cases  as in  other  cases.   See Morales  v.                                                            ___ _______          Ramirez, 906 F.2d  784, 785 (1st Cir. 1990); Amsden v. Moran, 904          _______                                      ______    _____          F.2d  748, 752  (1st  Cir.  1990), cert.  denied,  111 S.Ct.  713                                             _____  ______          (1991).     Summary  judgment   is  proper  if   "the  pleadings,          depositions,  answers to interrogatories, and admissions on file,          together  with the  affidavits, if  any,  show that  there is  no          genuine issue as to  any material fact and that  the moving party          is entitled to a  judgment as a matter of law."   Fed. R. Civ. P.          56(c).     District  court  orders  granting  or  denying  brevis                                                                     ______          disposition  are  subject  to plenary  review.2    Griggs-Ryan v.                                                             ___________          Smith, 904  F.2d 112, 115 (1st  Cir. 1990); Garside, 895  F.2d at          _____                                       _______          48.                                         III                                         III                                         ___                                          A.                                          A.                                          __                    Through  the  medium  of qualified  immunity,  the  law          strives to balance  its desire to  compensate those whose  rights          are infringed by  state actors with an  equally compelling desire          to  shield public  servants  from  undue  interference  with  the                                        ____________________               2We recognize  that, in  some relatively  rare instances  in          which Rule 56 motions might technically be granted, the  district          courts  occasionally exercise a  negative discretion in  order to          permit a potentially  deserving case to be  more fully developed.          See, e.g.,  McLain v. Meier, 612  F.2d 349, 356 (8th  Cir. 1979);          ___  ____   ______    _____          McInnis  v. Harley-Davidson  Motor  Co.,  625  F.Supp.  943,  958          _______     ___________________________          (D.R.I. 1986).   We express  no opinion on whether  this negative          discretion can flower in a case that turns on qualified immunity,          nor  do we  speculate about  what standard  of review  might then          obtain.                                          5          performance of their duties and  from threats of liability which,          though unfounded, may nevertheless be unbearably disruptive.  See                                                                        ___          Harlow v.  Fitzgerald, 457  U.S. 800, 806  (1982).   Hence, state          ______     __________          officials  exercising  discretionary  authority are  entitled  to          qualified immunity insofar  as their conduct does  not transgress          clearly established constitutional or federal statutory rights of          which a reasonably prudent official  should have been aware.  See                                                                        ___          Harlow,  457 U.S. at  818; Roque-Rodriguez, 926 F.2d  at 107.  In          ______                     _______________          this  context, the  phrase "clearly  established"  has a  precise          definition:   "The  contours of  the right  must be  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); accord Amsden, 904 F.2d at 752.                      ______ ______                    In analyzing a qualified immunity defense, a court must          ascertain whether the  plaintiff has alleged, with  the requisite          particularity, that a  state actor violated some  right emanating          from federal law.3   See Siegert v. Gilley, 111 S. Ct. 1789, 1793                               ___ _______    ______          (1991); Amsden, 904 F.2d  at 752.  The next step  is to ascertain                  ______          whether the right at issue  was "clearly established" at the time          of infringement.   See Anderson, 483 U.S. at 640.   If it was, an                             ___ ________          inquiring  court can  then presume  that the  defendant  knew, or          should have  known, that his  conduct was beyond  the pale.   See                                                                        ___          Harlow, 457 U.S. at 818-19; Amsden, 904 F.2d at 752.          ______                      ______                                        ____________________               3At  the summary  judgment stage,  the  allegation must,  of          course,  be  substantiated by  competent  evidence  sufficient to          create  a genuine issue of material fact.  See Mesnick v. General                                                     ___ _______    _______          Elec. Co., 950 F.2d 816, 822  (1st Cir. 1991), cert. denied,  112          _________                                      _____ ______          S. Ct. 2965 (1992); see also Mitchell, 472 U.S. at 526.                              ___ ____ ________                                          6                                          B.                                          B.                                          __                    The protections of the Fourth Amendment are fundamental          to the rights of all  American citizens and apply unreservedly in          Puerto  Rico.   See Torres  v.  Puerto Rico,  442  U.S. 465,  471                          ___ ______      ___________          (1979).   That prophylaxis guarantees, inter alia, every person's                                                 _____ ____          right to  be free from  unreasonable searches and seizures.   See                                                                        ___          Payton  v. New  York,  445  U.S. 573,  585  (1980).   Warrantless          ______     _________          searches  or  seizures  occurring  within  a  person's  home  are          "presumptively unreasonable," id. at 586   a postulate which  was                                        ___          indelibly  etched in  jurisprudential  granite  at  the  time  of          Buenrostro's arrest.   See id.; see also Santiago  v. Fenton, 891                                 ___ ___  ___ ____ ________     ______          F.2d  373, 386  (1st Cir. 1989)  (discussing state of  the law in          1983);   Wagenmann v. Adams,  829 F.2d  196, 209 (1st  Cir. 1987)                   _________    _____          (similar).                    Payton  sends  the  clearest signal  for  our purposes.                    ______          There, the Supreme Court held that a non-consensual, non-exigent,          warrantless  entry   into  a   home  to   effectuate  an   arrest          transgressed the Fourth Amendment,  notwithstanding that probable          cause  sufficient to  justify the  same arrest  in a  more public          arena  may have  existed.   Payton,  445  U.S. at  590;  see also                                      ______                       ___ ____          Minnesota v. Olson, 495 U.S.  91, 95 (1990) (describing Payton as          _________    _____                                      ______          holding  "that a  suspect should  not  be arrested  in his  house          without an arrest warrant"); New York v. Harris, 495 U.S. 14, 17-                                       ________    ______          18 (1990) (Payton "drew a line"  prohibiting police from entering                     ______          a person's home without a warrant); United States v. Beltran, 917                                              _____________    _______          F.2d 641, 642  (1st Cir. 1990) (apart  from exigent circumstances                                          7          or a consensual entrance, the Constitution requires the police to          obtain  a warrant  "before entering  a person's  home to  make an          arrest").   Absent some  legally cognizable  justification, then,          appellants  violated a  clearly established  constitutional right          when  they unceremoniously hauled  the plaintiff from  hearth and          home.                                          C.                                          C.                                          __                    Appellants attempt to salvage  their qualified immunity          defense by  asserting various  justifications for  their actions.          They claim, first  and foremost, that they had  probable cause to          believe  that Buenrostro was a  fugitive from justice and, hence,          to arrest and detain him.   That is not, however, the dispositive          criterion.   Probable cause,  without more,  cannot legitimate  a          warrantless entry into  a suspect's home.  See Olson, 495 U.S. at                                                     ___ _____          95; Payton, 445 U.S. at 587-90.              ______                    Appellants' remaining contentions can be grouped.  They          contend  that  the  wanted  person  request  was  the  functional          equivalent  of an arrest  warrant.4  But  it seems  obvious to us          that, in the context of seizing an individual within the confines          of his own home, a wanted person request circulated by an out-of-          state  police  department  differs significantly  from  an arrest          warrant  issued  by  a neutral,  detached  magistrate  within the                                        ____________________               4If it were correct, this contention would likely  carry the          day.  See,  e.g., Steagald v.  United States, 451  U.S. 204,  214                ___   ____  ________     _____________          n.7, 221 (1981) (valid arrest warrant may justify apprehension of          suspect in his own home,  notwithstanding the absence of a search          warrant); Payton, 445 U.S. at 602-03 (similar).                    ______                                          8          jurisdiction where the dwelling is located.                      Alternatively, appellants contend that they entered the          house with Buenrostro's  consent   a datum which,  if true, would          obviate the need for a warrant.   Buenrostro, however, vehemently          denies  that he  consented  to  the intrusion.    At the  summary          judgment stage, therefore,  the district court could  not resolve          the issue against him.   See, e.g., Unwin  v. Campbell, 863  F.2d                                   ___  ____  _____     ________          124, 136 (1st Cir. 1988) (if the record reveals a genuine dispute          over a fact-specific question essential to the qualified immunity          inquiry, summary judgment cannot be granted).                     What is more, the grouped contentions are both infected          by  an incurable  strain of  procedural  default.   In the  court          below,  appellant described the qualified immunity issue as being          "simply whether  the police officers,  at the time  they arrested                  _________________________________________________________          the plaintiff, had probable  cause to believe that  plaintiff had          _________________________________________________________________          violated the law."   Memorandum in Support of  Motion for Summary          _________________          Judgment (Memorandum) at 18 (emphasis  in original); see also id.                                                               ___ ____ ___          at  16.  They eschewed  any reliance on the  WPR as a valid proxy          for a conventional  arrest warrant.  Their  moving papers nowhere          suggested, let alone documented, that Buenrostro consented to the          entry into  his home.   Thus, the "arrest warrant"  and "consent"          arguments are  by the boards  for purposes of  this appeal.   See                                                                        ___          McCoy v. Massachusetts Inst. of  Technology, 950 F.2d 13, 22 (1st          _____    __________________________________          Cir. 1991) (arguments made in a  perfunctory or incomplete manner          in the  court below are  deemed waived on appeal),  cert. denied,                                                              _____ ______          112 S. Ct.  1939 (1992); Clauson v. Smith, 823 F.2d 660, 666 (1st                                   _______    _____                                          9          Cir. 1987) (theories not advanced in the district court cannot be          pressed for the first time on appeal).                    We will not paint the  lily.5  On this scumbled record,          the district court  acted with impeccable propriety  in rejecting          the qualified  immunity defense and  refusing to enter  a summary          judgment predicated thereon.                                          D.                                          D.                                          __                    Although our  analysis to  this point  disposes of  the          appeal,  we add  an eschatocol  of sorts.   Much of  the parties'          briefing and argumentation ventures  beyond the easily visualized          Fourth Amendment violation  and discusses  whether an  additional          constitutional deprivation  resulted  from the  sheer  length  of          Buenrostro's imprisonment.  See Baker v. McCollan,  443 U.S. 137,                                      ___ _____    ________          145  (1979)  (dictum).6    Given  the  posture  of  this  appeal,                                        ____________________               5It should be noted that two of the appellants, Tapia Suarez          and Lopez Feliciano,  were supervisors, not directly  involved in          Buenrostro's  arrest.  In  moving for summary  judgment, however,          they did not suggest that their involvement should be judged by a          different standard; instead, they were content to lump themselves          with the  members of the  extradition squad.  We  have repeatedly          held that,  if a defendant wishes  to be separated from  the pack          and  treated   independently  from  his   codefendants  regarding          qualified immunity, it is necessary that  he make the distinction          and present an  appropriate argument to that effect  in the trial          court.   See   Brennan v. Hendrigan,  888 F.2d 189,  193 n.2 (1st                   ___   _______    _________          Cir. 1989); Domegan, 859 F.2d  at 1065.  Since appellants' moving                      _______          papers did not  attempt to carve out any  such differential niche          in respect  to either Tapia  Suarez or Lopez Feliciano,  we treat          them on a par with the arresting officers.               6The Baker Court wrote:                    _____                    We may even assume, arguendo, that, depending                                        ________                    on   what   procedures  the   State   affords                    defendants  following  arrest  and  prior  to                    actual trial,  mere detention  pursuant to  a                    valid  warrant but  in the  face of  repeated                                          10          however, the issue is a dead letter.  We explain briefly.                    In the court below, appellants premised their qualified          immunity defense strictly and solely on what they claimed was the          officers'   objectively   reasonable  conduct   in   effectuating          Buenrostro's arrest.7  See Memorandum  at 14-19.  They cannot now                                 ___          switch  horses  and argue  that  they are  entitled  to qualified          immunity  on the alleged Baker violation.  Qualified immunity is,                                   _____          after all,  an affirmative  defense, and the  "right" to  have it          determined in an intermediate  appeal can be waived if  it is not          properly asserted below.  See, e.g., Roque-Rodriguez, 926 F.2d at                                    ___  ____  _______________          105-06; Fisichelli, 884 F.2d at 18-19 & n.2.                  __________                    At  any rate,  the Supreme  Court has  made  it crystal          clear  that principles of  causation borrowed  from tort  law are          relevant  to civil  rights actions  brought  under section  1983.                                        ____________________                    protests of innocence will after the lapse of                    a certain amount of time deprive the  accused                    of  "liberty .  . .  without  due process  of                    law."          Baker, 443 U.S.  at 145 (dictum); see also id.  at 148 (Blackmun,          _____                             ___ ____ __          J., concurring).               7The  district court,  following  appellants' lead,  did not          address  the  possibility  of qualified  immunity  vis-a-vis  the          alleged Baker violation but merely rejected appellants' effort to                  _____          jettison  that  allegation  for failure  to  state  an actionable          claim.   See Buenrostro, 777  F. Supp. at  136 (holding  that the                   ___ __________          plaintiff, in connection with his Baker theory, "has stated facts                                            _____          sufficient to  state a  cause  of action  for  . .  .  deliberate          indifference").   Since  we  are  operating  under  the  Mitchell                                                                   ________          exception  to the  finality principle,  we  lack jurisdiction  to          review that  ruling  at  the present time.   See Roque-Rodriguez,                                                       ___ _______________          926 F.2d at 105-06.  Thus, we decline to speculate, here and now,          whether  the Baker  dictum limns  a potentially  viable  cause of                       _____          action; or, if  it does, whether such a claim can be supported on          the facts sub judice.                    ___ ______                                          11          See, e.g., Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986); Monroe          ___  ____  ______    ______                                ______          v. Pape, 365  U.S. 167, 187 (1961); see also  Wagenmann, 829 F.2d             ____                             ___ ____  _________          at 212-13;  Springer v.  Seaman, 821 F.2d  871, 876-79  (1st Cir.                      ________     ______          1987).   Since  a  jury  could conceivably  find  a causal  nexus          between  the unlawful arrest and the consequent imprisonment, the          particulars of the imprisonment issue will  have to be litigated.          Hence,  it would  serve  no  useful purpose  to  address, in  the          isthmian  confines  of  an  interlocutory  Mitchell-type  appeal,                                                     ________          whether  a Baker violation also  occurred.  In  short, once it is                     _____          determined that the case must  go forward on the Fourth Amendment          issue, the length and circumstances of Buenrostro's detention are          best examined  at trial as  part of the determination  of damages          flowing   from  the  allegedly  unlawful  arrest.    Cf.,  e.g.,,                                                               __    ____          Mitchell, 472 U.S. at 526  (as long as "the plaintiff's complaint          ________          adequately alleges the  commission of acts that  violated clearly          established law"  and the plaintiff adduces  "evidence sufficient          to  create a genuine  issue as to  whether the defendant  in fact          committed  those acts," the  doctrine of qualified  immunity will          not shield a state actor from trial).                                          IV                                          IV                                          __                    We need go no further.   On this record, the appellants          are  not entitled to  qualified immunity on  the Fourth Amendment          claim.8                                        ____________________               8In this  case, there seem  to be additional facts,  not yet          fully developed and-or  resolved, which could potentially  inform          the   ultimate  decision  on  qualified  immunity.    Hence,  the          defendants remain free to adduce  additional proof at trial in an          effort to  demonstrate that they,  or some among them,  should be                                          12          Affirmed.          Affirmed.          ________                                        ____________________          held harmless from damages by the doctrine of qualified immunity.          See, e.g.,  Vazquez Rios  v. Hernandez Colon,  819 F.2d  319, 329          ___  ____   ____________     _______________          (1st Cir. 1987).                                          13
