
USCA1 Opinion

	




                           United States Court of Appeals                                 for the First Circuit                                 ____________________          No. 97-1645                             RAFAEL APONTE MATOS, ET AL.,                               Plaintiffs, Appellants,                                          v.                             PEDRO TOLEDO D VILA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                       Selya, Stahl, and Lynch, Circuit Judges.                                                ______________                                 ____________________                  Rafael Castro  Lang with whom  Marlene Aponte  Cabrera was                  ___________________            _______________________          on brief for appellants.                  Sylvia  Roger-Stefani, Assistant  Solicitor General,  with                  _____________________          whom  Carlos Lugo-Fiol, Puerto  Rico Solicitor General,  and Edda                ________________                                       ____          Serrano-Blasini,  Deputy Solicitor  General,  were on  brief  for          _______________          appellees Toledo-D vila, Zapata, Ort z-D az, and Fern ndez.                  John  F. Nevares,  with whom  Lizzie M.  Portela,  Paul B.                  ________________              __________________   _______          Smith, and Smith  & Nevares were on brief  for appellees Haddock,          _____      ________________          Torres-Lebr n, Laboy-Escobar, Col n, and Nieves-Dom nguez.                  Isabel  Mu oz  Acosta, Assistant  United States  Attorney,                  _____________________          with whom Guillermo Gil, United States Attorney, was on brief for                    _____________          appellees Plichta and Ilario.                                 ____________________                                   February 3, 1998                                 ____________________                      LYNCH,  Circuit Judge.  A Puerto Rican family whose                      LYNCH,  Circuit Judge.                              _____________            home  was  searched  under a  warrant  authorizing  a weapons            search sued the  intruding Puerto Rican and  federal officers            and their supervisors on various claims of violation of civil            rights.  The district court dismissed all claims  against all            defendants  in  a series  of  summary judgment  orders.   One            argument made by plaintiffs on appeal leads us to reinstate a            portion of their case.                        Plaintiffs  claim  that  the  Puerto  Rican  police            officer,  Ernesto Laboy-Escobar, who  filed the affidavit and            swore to facts in support of the search warrant lied in doing            so,  fabricating the "facts"  asserted in order  to establish            probable  cause.     Plaintiffs'  evidence  presents  genuine            disputes of fact  as to whether the  material representations            made by  Laboy in the  warrant application were true  or were            fabricated.   It has long  been well established that  such a            material  fabrication  violates  the  Warrant  Clause of  the            Fourth Amendment.   Further, we have  no doubt that  officers            reasonably understand  that  they may  not  lie in  order  to            establish  probable cause  in  a  warrant  application.    If            plaintiffs are able to prove their claim at trial, Laboy will            not be protected by qualified immunity.                      Accordingly, it was error to enter summary judgment            in favor of  Laboy on  that claim.   But plaintiffs have  not            made any  showing that  others assisted or  even knew  of the                                         -2-                                          2            alleged  falsehoods, nor  have plaintiffs  provided facts  to            support  the claim that  the search itself  was unreasonable.            For  these and  other  reasons  the  dismissal of  all  other            defendants and all other claims is affirmed.                                            I.                      Entry of summary  judgment is reviewed de  novo and            we take  the facts in the  light most favorable  to the party            opposing summary  judgment.  See Acosta-Orozco  v. Rodriguez-                                         ___ _____________     __________            de-Rivera, 1997 WL 775350 at *1 (1st Cir. Dec. 22, 1997).              _________                      On  December 6, 1993,  plaintiffs Cruz Mar a Andino            Serrano (Andino Serrano) and her daughter Mar a Aponte Andino            (Aponte  Andino) were  at home in  R o Piedras,  Puerto Rico,            when Aponte  Andino noticed several unmarked cars approaching            the house.  A group of people emerged from the cars and began            walking toward the house.  One member of the group had an ax;            none was uniformed.  Plaintiffs  believed they were about  to            be   robbed.    Without   identifying  themselves  as  police            officers, the individuals  broke down the  door to the  house            with the  ax and entered.   Only after plaintiffs  begged the            people not to kill them  did the officers identify themselves            as police  and show  the two women  a search warrant  for the            house.  The  warrant authorized a search  of plaintiffs' home            for weapons, and nothing else.                        The  officers conducted the  search in an efficient            and orderly  fashion,  without the  use  of force.    Several                                         -3-                                          3            officers  questioned the two women inside about whether there            were  large sums of drug money hidden  inside the house.  FBI            Agent Michael Plichta  also attempted to search  the computer            files  to find evidence of drugs or drug money, but could not            gain  access to  any files.    The entire  search lasted  two            hours, and  failed to  turn up  evidence of illegal  weapons,            drugs,  drug money,  or, indeed,  of  any criminal  activity.            Another daughter,  Iris Teresa  Aponte Andino  (Iris Teresa),            returned and  tried to enter  the house.  An  officer outside            refused to let Iris Teresa through the blockade.                        In  May of  1995,  Aponte Andino,  Andino  Serrano,            Rafael  Aponte  Matos (Andino  Serrano's  husband), and  Iris            Teresa filed this action for  damages under 42 U.S.C.   1983,            and against the federal officials  under 28 U.S.C.   1331 and            Bivens  v. Six  Unknown Named  Agents, 403  U.S.  388 (1971).            ______     __________________________            They  alleged  violations   of  the  Fourth  and   Fourteenth            Amendment right to be free from unreasonable searches.                        Plaintiffs  sued two  groups  of defendants.    The            first group  is  composed  of  the  state  and  federal  line            officers who participated in the search:  Puerto Rican Police            Officers Ernesto Laboy-Escobar, Ernesto  Torres Lebr n, Jimmy            Col n, Zulma Fern ndez, Iv n-Nieves  Dom nguez, and FBI Agent            Michael Plichta.   Plaintiffs alleged  that these  defendants            violated  plaintiffs'  right  to  be  free from  unreasonable            searches by fabricating  facts to obtain the  search warrant,                                         -4-                                          4            conducting a search  that exceeded the scope of  the warrant,            and using excessive force in carrying out the search.1                      Plaintiffs sued the second group of defendants, the            supervisors, alleging  that they failed  adequately to  train            and supervise the  first group of defendants.   This group of            defendants  included  both  state  and  federal  supervisors:            Puerto  Rico Police  Department  (PRPD) Superintendent  Pedro            Toledo-D vila, PRPD Supervisor Carlos Haddock, PRPD Auxiliary            Superintendent of  Inspection and  Disciplinary Affairs  Jos             Zapata, PRPD  Lieutenant  Juan Ort z-D az,  and FBI  Director            Lewis  Freeh   and  an  unidentified   FBI  supervisor  named            "Ilario."  Plaintiffs alleged that these defendants knew that            the officers involved in the  search had records of violence,            and  that   the   supervisors   had   callously   disregarded            plaintiffs' constitutional rights by inadequately supervising            their subordinates.                      All defendants moved for summary judgment  based on            qualified immunity.  On December 13, 1995, the district court            granted  in part Agent Plichta's motion for summary judgment,            dismissing the claim  that Plichta engaged in  a "pretextual"                                            ____________________            1.    Plaintiffs also  alleged  in their  complaint  that the            officials conducting the search  deprived plaintiffs of their            right to counsel during the  search.  They alleged that their            lawyer was  outside of  the house, but  the police  would not            allow counsel to  be with her clients inside.   Plaintiffs do            not present  this claim  as a specific  issue on  appeal, nor            develop any argument  regarding the claim,  and it is  deemed            waived.  See  King v. Town of Hanover, 116 F.3d 965, 970 (1st                     ___  ____    _______________            Cir. 1997) (collecting cases).                                         -5-                                          5            search  of plaintiffs'  home.   On  May 29,  1996, the  court            entered partial  judgment dismissing  plaintiffs' claim  that            Plichta  exceeded the  scope  of  the  warrant  by  searching            plaintiffs'  computer files.   On  July 22,  1996, the  court            entered partial judgment dismissing plaintiffs' claim against            the  unnamed federal supervisor "Ilario."   On April 4, 1997,            the  court dismissed  all the  remaining  claims against  all            defendants on qualified immunity  grounds.  Plaintiffs appeal            all of these dismissals.                                         II.                      Our review of the district court's grant of summary            judgment is de novo.  See St.  Hilaire v. City of Laconia, 71                                  ___ ____________    _______________            F.3d 20,  24  (1st  Cir.  1995).   We  will  affirm  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).  In order to overcome            defendants'  motions for  summary  judgment, plaintiffs  must            come forward with "specific,  provable facts which  establish            that  there  is   a  triable  issue."     Febus-Rodriguez  v.                                                      _______________            Betancourt-Lebron, 14  F.3d 87,  91 (1st Cir.  1994).   For a            _________________            dispute to be "genuine," there must be sufficient evidence to            permit a  reasonable trier  of fact to  resolve the  issue in                                         -6-                                          6            favor  of the  non-moving party.    See United  States v. One                                                ___ ______________    ___            Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992).            _______________________                      Qualified immunity protects both  federal and state            officials from liability for damages in a civil rights action            if "a reasonable officer could have believed [his actions] to            be lawful,  in  light  of clearly  established  law  and  the            information the  [acting] officer[] possessed."   Anderson v.                                                              ________            Creighton, 483 U.S.  635, 641 (1987).  There  are two aspects            _________            to  this  standard.    The  first   inquiry  is  whether  the            constitutional  right  asserted  by  plaintiffs  was  clearly            established  at  the time  of  the  alleged violation.    The            second, if the  right was clearly  established, is whether  a            reasonable  officer  in  the   same  situation  would   "have            understood  that   the  challenged   conduct  violated   that            established  right."   Hegarty v.  Somerset  County, 53  F.3d                                   _______     ________________            1367,  1373 (1st Cir.  1995) (quoting Burns  v. Loranger, 907                                                  _____     ________            F.2d 233, 235-36 (1st Cir. 1990)).  If the first level of the            analysis   yields   a   determination   that   the   asserted            constitutional right  was  not  clearly  established  at  the            relevant time, then we need  not proceed to the second prong;            there is  qualified immunity.   See Soto v. Flores,  103 F.3d                                            ___ ____    ______            1056, 1064-65 (1st Cir. 1997).              A.  The Use of False Statements to Obtain a Search Warrant                ______________________________________________________                      In  1978, the  Supreme  Court  held  in  Franks  v.                                                               ______            Delaware,  438  U.S.  154  (1978),  that  the  use  of  false            ________                                         -7-                                          7            statements  to obtain a  warrant, where the  false statements            are necessary to the finding  of probable cause, violates the            Fourth  Amendment's warrant requirement.  As the Franks Court                                                             ______            noted,  the Warrant  Clause of  the  Fourth Amendment  itself            contemplates the affiant's truthfulness:                        [N]o  warrants  shall   issue,  but  upon                      probable  cause,  supported  by  Oath  or                      affirmation.              438 U.S. at 164 (quoting U.S. Const. amend. IV).                        Franks  involved  a  challenge to  a  warrant  in a                      ______            criminal  proceeding  and   set  forth  the  elements   of  a            challenge:  there must be allegations of deliberate falsehood            or  of reckless disregard  for the truth  on the part  of the            affiant;  these allegations must be supported by an affidavit            or sworn  or otherwise  reliable statements;  the allegations            must  point  specifically  to  the  portion  of  the  warrant            application claimed to be false  and must have a statement of            supporting reasons; and the  material that is the subject  of            the alleged falsity  or reckless disregard must  be necessary            to establish  probable cause.  See id. at  171-72.  It is not                                           ___ ___            enough to  allege negligence  or innocent  mistake.   See id.                                                                  ___ ___            This court  has consistently followed the Franks  rule.  See,                                                      ______         ____            e.g.,  United States  v. Valerio,  48 F.3d  58, 62  (1st Cir.            ____   _____________     _______            1995); United States v. Carty,  993 F.2d 1005, 1006 (1st Cir.                   _____________    _____            1993).                                         -8-                                          8                      An officer  who obtains a warrant  through material            false statements which  result in an unconstitutional  search            may be held personally liable  for his actions under   1983.2            "It  has  long  been  clearly  established  that  the  Fourth            Amendment's warrant  requirement is  violated  when 'a  false            statement  knowingly  and  intentionally,  or  with  reckless            disregard for  the truth,  was included by  the affiant  in a            warrant affidavit if the  false statement is necessary for  a            finding of probable  cause.'"   Clanton v.  Cooper, 129  F.3d                                            _______     ______            1147, 1154 (10th Cir. 1997) (quoting Franks, 438 U.S. at 155-                                                 ______            56).  See also Krohn v.  United States, 742 F.2d 24, 26  (1st                  ________ _____     _____________            Cir.  1984)  (noting  plaintiff's  civil  rights  claim  that            federal agent intentionally misrepresented facts necessary to            obtain warrant).                        The  force of the Franks rule in a   1983 action is                                        ______            reinforced by the decision of  the Supreme Court this term in            Kalina v. Fletcher, 1997 WL 756635 (U.S. Dec. 10,  1997).  In            ______    ________            that case, the  Court held that a prosecutor  is not entitled            to  absolute immunity  for  making  false  statements  in  an            affidavit supporting  an application  for an arrest  warrant,            and may be  personally liable for such  actions.  See  id. at                                                              ___  ___            *3.                                            ____________________            2.    This   is  similar  to,  and  derives   from  the  same            constitutional  source  as,   the  claim   that  an   officer            reasonably should have known that facts alleged in support of            a warrant application were insufficient to establish probable            cause.  See Malley v. Briggs, 475 U.S. 335 (1986).                    ___ ______    ______                                         -9-                                          9                      Here, plaintiffs allege that Laboy fabricated facts            in support of probable  cause in order to obtain a warrant to            search plaintiffs' home, and that other  defendants conspired            with  Laboy to  obtain  this fraudulently  procured  warrant.            Plaintiffs have  presented no  evidence  that other  officers            conspired with Laboy  to falsely obtain a search warrant, and            we  readily  affirm  the district  court's  grant  of summary            judgment on that claim.                      As to Laboy, there is evidence  that on December 2,            1993,  FBI  Agent   Plichta  received  a  tip   that  several            individuals intended  to break into  plaintiffs' home, hoping            to find two million dollars in hidden drug money and weapons,            and that they  planned to murder plaintiffs.   On December 3,            1993,  Plichta notified Sergeant  Carri n of the  Puerto Rico            Police Department of the information, and suggested that they            obtain a warrant and search  plaintiffs' home for the  money.            We  do  not  comment on  the  implicit  suggestion  that such            information alone could support a warrant.  In any event, the            Puerto Rican Police did not seek a warrant on that basis.                      On December  4, Plichta  discussed the matter  with            Laboy.   Laboy told  Plichta that on  December 3,  soon after            Plichta   spoke  with   Carri n,   Laboy  had   independently            established facts sufficient to show probable cause to search            plaintiffs' home.  He said  he had observed, while working on            another  matter, an  illegal  weapon  exchange  in  front  of                                         -10-                                          10            plaintiffs' home.   On  December 6, Laboy  obtained a  search            warrant  based on  his  affidavit,  and  invited  Plichta  to            participate in the search.                      Laboy's affidavit in support of his application for            a warrant stated:                      [On the]  3rd day  of December, 1993,  at                      about  4:30 p.m.  I was  in  the area  of                      Cupey in R o  Piedras, Puerto Rico trying                      to locate an address about a complaint  I                      am investigating and upon arriving to the                      Pedro  Castro Road  which is a  dead end,                      when  I  turn at  the end  of the  same I                      realized   there   was    an   individual                      approximately  6  feet tall,  with  white                      skin, brown  hair giving a long  wood and                      black  color  firearm  to  another  white                      individual, who was  approximately 5 feet                      10 inches tall, wearing khaki pants and a                      black  sweater  and  at  that  time  both                      looked toward the vehicle I  was in . . .                      and the individual in the khaki pants and                      black sweater walked toward the front and                      gave  the weapon  once  again to  the  6'                      individual with white skin and turned his                      back and  entered  the  residence.    The                      other   individual   also   entered   the                      residence. . . .  That for my  experience                      as investigating agent  what was observed                      by  me  there  was  a  violation  to  the                      Weapons Act of Puerto Rico and that  said                      residence  is  being   utilized  for  the                      custody of firearms.             The affidavit also  described plaintiffs' house as  the place            to be searched and added that "[t]he services of the K-9 Unit            of the Puerto  Rico Police shall be utilized  for this search            and seizure."                       The  district  court  granted  summary judgment  to            defendants, finding that "[p]laintiffs .  . . have failed  to                                         -11-                                          11            produce a scintilla of  non-speculative and reliable evidence            that  the  Defendant-Officers  either  knowingly  used  false            information or recklessly  disregarded the truth in  order to            obtain the  warrant."  We  disagree with the  district court,            and reverse the grant of summary judgment as to Laboy on this            claim.                      Plaintiff Andino Serrano put in sworn evidence that            she was  in her house at  the time Laboy says he  saw two men            enter the house.3   She says  that no man entered  the house.            She also says that the physical description given by Laboy of            one  of the  men who  allegedly  entered the  house fits  her            husband.  But, she says, her husband did not enter the  house            and was not at the house then.  Her husband, plaintiff Rafael            Aponte Matos, confirms this and says he was elsewhere.                        It is difficult to think of what more could be said            by the  plaintiffs to  raise a  question as  to the  truth of            Laboy's statements in the  affidavit that two men carrying  a                                            ____________________            3.  Andino Serrano's affidavit states:                        I was at my house,  and no male, not even                      my husband, entered my house at 4:30 p.m.                      on December 3,  1993. . .  . I have  read                      the sworn declaration  submitted in order                      to procure a search warrant to search  my                      home on  December 6,  1993, and  although                      the physical  description of  one of  the                      individuals described in said declaration                      resembles my husband, I  know for a  fact                      he was not  at my house that  day at that                      time.                                         -12-                                          12            weapon entered the plaintiffs' house.4  The plaintiff who was            home  at the time says that did  not happen.  Plaintiffs also            suggest that Laboy had a motive to  lie:  he wanted access to            the house  to see if  there was a "narco-treasure"  there, as            the  information from Agent Plichta suggested.5  And finally,            plaintiffs  note, when  the house  was  searched, no  illegal            weapon was found.  This evidence tends  to contradict Laboy's            statement in the  affidavit that he saw two men,  one with an            illegal weapon, entering  the house, and  that, based on  his            observation   and  experience,  this   meant  the  house  was            illegally being used for custody of firearms.  That statement            was  essential  to  the probable  cause  determination.   See                                                                      ___            Franks, 438 U.S. at 155-56.             ______                                            ____________________            4.   Laboy  attempts  to buttress  his  position through  the            affidavit of Officer Nieves Dom nguez,  who was with Laboy at            the time.  But Nieves  saw nothing himself and simply reports            what Laboy said after he made the alleged observations.            5.  Plaintiffs say that on December 22, 1993, two weeks after            the police  search,  three  unidentified  individuals  robbed            plaintiffs' home.  One of  them, dressed as a police officer,            said they were  there to investigate  the December 6  search.            When plaintiffs opened the  door, the two other robbers  drew            their guns and held plaintiffs Andino Serrano, Aponte Andino,            and  Rafael  Aponte  Matos  at  gun  point.    The  intruders            questioned  plaintiffs about the  $2 million dollars  in drug            money.   The  robbers  went  directly  to  the  places  where            plaintiffs kept their  valuables, and took money,  a handgun,            and jewelry.   Plaintiffs have  alleged that the  robbery was            connected to the prior police search.                                         -13-                                          13                      Our decision  does not forecast  whether plaintiffs            will succeed on  this claim at trial; that is for the jury to            decide.6            B.   The Claim  That the  Search  Exceeded the  Scope of  the                 ________________________________________________________            Warrant            _______                      The warrant authorized a search of plaintiffs' home            for weapons, specifically for "anything [in plaintiffs' home]            that  is in  violation to  [sic]  the Weapons  Act of  Puerto            Rico."  Plaintiffs  claim that the searching  police officers            and Agent Plichta exceeded the scope of the warrant by asking            them  questions about two million dollars allegedly hidden in            the house and by Plichta's efforts to get into their computer            files.            The Computer Search             ___________________                      The unlawful computer search  claim against Plichta            is  not properly before  us, as  plaintiffs failed  timely to            perfect an  appeal from the district court's entry of summary            judgment on  that claim.  On May 29, 1996, the district court            issued  a Memorandum and  Order granting summary  judgment to                                            ____________________            6.   The parties' briefing sometimes characterizes the Franks                                                                   ______            issue as an  issue of whether there was  a pretextual search.            We  reject  that  conceptualization  of  the  legal doctrines            involved.   The  Franks rule  is as  we have  stated it;  not                             ______            whether   the  search  was  pretextual.    Under  the  Fourth            Amendment reasonableness calculus,  inquiry into an officer's            subjective  motivations is rarely  appropriate.  See  Ohio v.                                                             ___  ____            Robinette,  117  S. Ct.  417,  419  (1996); Whren  v.  United            _________                                   _____      ______            States, 116 S. Ct. 1769, 1774 (1996).            ______                                         -14-                                          14            Plichta  on the computer  search claim,7 and  entered partial            judgment dismissing  the claim.   This  was a  final judgment            within the meaning  of 28 U.S.C.    1291 and Fed. R.  Civ. P.            54(b), and was immediately appealable to this court.  Fed. R.            App. P. 4(a)  required plaintiffs to file a  notice of appeal            from that final judgment within  60 days.  Plaintiffs did not            file a notice of appeal in this case until May 5,  1997, long            after the 60 day deadline had passed.8            The Search of the House            _______________________                      The  issue  whether  the  district  court erred  in            granting summary judgment to the  other defendants as well as            Plichta on  the claim that  the search exceeded the  scope of            the warrant has been timely appealed.                        In 1993  it was  undoubtedly "clearly  established"            that  a  search must  not  exceed  the  scope of  the  search            authorized  in the warrant.   See  Maryland v.  Garrison, 480                                          ___  ________     ________            U.S. 79,  84 (1986) ("By limiting the authorization to search            to the specific areas and  things for which there is probable                                            ____________________            7.   The  court reasoned  that  because Plichta's  attempt to            search plaintiffs' computer files was unsuccessful (due to an            apparent inability to "boot up" the hard drive), there was no            search within the meaning of the Fourth Amendment.  We do not            address this conclusion because the appeal is untimely.            8.   The  appeal of  the  district court s  grant of  summary            judgment  in favor of the unnamed federal supervisor "Ilario"            is not properly before us for the same reasons.  The district            court entered partial  judgment in favor of "Ilario"  on July            22, 1996.  Plaintiffs had 60 days to appeal the judgment, but            did not do  so until the current  appeal was taken on  May 5,            1997.                                         -15-                                          15            cause  to   search,  the  [Fourth   Amendment  particularity]            requirement  ensures  that  the  search   will  be  carefully            tailored to  its justifications,  and  will not  take on  the            character  of  the   wide-ranging  exploratory  searches  the            Framers  intended to  prohibit."); cf. Horton  v. California,                                               ___ ______     __________            496 U.S. 128, 140 (1990) ("If the scope of the search exceeds            that permitted by the terms of a validly issued warrant . . .            the subsequent  seizure is unconstitutional  without more.").            But to state the  rule is not to answer the  question of when            the search does in fact exceed the warrant.                      Plaintiffs' evidence  is insufficient to  show that            the officers who  carried out the search are  not entitled to            immunity.   All plaintiffs  offer is  that when  the officers            began  their  search,  they  "questioned"  plaintiffs  Andino            Serrano and  Aponte  Andino  as to  the  whereabouts  of  two            million dollars in  hidden drug money.  There  is no evidence            that the  officers searched anywhere  in the house  that they            otherwise could not  have searched for a weapon.   See United                                                               ___ ______            States v. Ross, 456 U.S. 798, 820 (1982) ("A lawful search of            ______    ____            fixed premises generally extends to  the entire area in which            the object of  the search may be  found . . . .").   The Ross                                                                     ____            Court  provided an illustration  pertinent here:   "A warrant            that  authorizes an  officer  to search  a  home for  illegal            weapons also  provides  authority to  open  closets,  chests,            drawers, and containers in which the weapon  might be found."                                         -16-                                          16            Id.  at 821.   Further,  at least  for immunity  purposes, an            ___            officer could reasonably  think that weapons are  more likely            to be in a  house if there are millions of  dollars hidden in            the house  as well,  and that  the question  was sufficiently            related to the  warrant.  The topic of  questioning during an            encounter  which itself does not violate the Fourth Amendment            is not so clearly defined  against the officers as to deprive            them of  immunity.  Cf. Florida  v. Royer, 460 U.S.  491, 497                                ___ _______     _____            (1983)  (officers  do   not  violate   Fourth  Amendment   by            approaching individual in public place and posing questions);            United States v. Mendenhall, 446 U.S. 544, 554 (1980) (Fourth            _____________    __________            Amendment   not  violated  when  officers  ask  questions  of            individuals   without    particularized   suspicion,    where            reasonable person would not feel obligated to answer).  There            is  no  suggestion  that the  searching  officers  ordered or            forced  plaintiffs  to answer  the questions,  and plaintiffs            were free not  to answer.  See  Robinette, 117 S. Ct.  at 421                                       ___  _________            (Fourth  Amendment  reasonableness requirement  not  violated            where  officer  asks driver  questions  unrelated to  initial            justification  for  stop,  and  driver  voluntarily   answers            questions and consents to search).                      Plaintiffs'  evidence  is  inadequate  to  overcome            qualified immunity.  We affirm the district court's  grant of            summary  judgment  dismissing  the  claim  that   the  search            exceeded the scope of the warrant.                                         -17-                                          17            C.  Failure to Knock and Announce                _____________________________                      Plaintiffs assert  that the officers  who conducted            the  search violated plaintiffs'  Fourth Amendment  rights by            failing to announce their presence and identify themselves as            police before  they entered the  house by  breaking down  the            door with an ax.   The district court acknowledged that "upon            approaching  the entrance  to the  home,  the officers  never            announced their  presence or  their purpose."    It did  not,            however,  rule on  the claim  that  this was  a violation  of            plaintiffs' rights,  see Richards  v. Wisconsin,  117 S.  Ct.                                 ___ ________     _________            1416  (1997)  (Fourth  Amendment  does  not  permit   blanket            exception  to knock and  announce rule); Wilson  v. Arkansas,                                                     ______     ________            115 S.  Ct 1914 (1995)  (failure to knock and  announce forms            part of  reasonableness inquiry), nor  do we.   Even assuming            that there  is, on these  facts, a right  to have the  police            knock  and announce,  the  asserted  right  was  not  clearly            established  as being of constitutional dimension at the time            the alleged violation occurred.                        As Richards  makes clear, Wilson  neither announced                         ________               ______            an absolute  knock-and-announce rule nor  created categorical            exceptions to the  rule for felony drug cases.   In Richards,                                                                ________            the court found that  a no-knock entry into a hotel  room was            justified  where the officers had a reasonable suspicion that            the   occupant  would  destroy  the  evidence  if  given  the            opportunity.  See  Richards, 117 S. Ct.  at 1422.  We  do not                          ___  ________                                         -18-                                          18            reach  the question of whether it is reasonable for officers,            armed  with a  warrant  to  search for  weapons,  to fail  to            announce they  are police  before they enter  the area  to be            searched, because we resolve this on immunity grounds.                      In  St.   Hilaire,  this   court   held  that   the                          _____________            requirement that officials identify themselves to the subject            of a  search or  seizure, absent  exigent circumstances,  was            "not clearly  of constitutional dimension" until  the Supreme            Court decided Wilson in 1995, and that the notice requirement                          ______            "was not  . .  . clearly  established in  this  Circuit as  a            constitutional requirement  until Wilson."   St. Hilaire,  71                                              ______     ___________            F.3d at 28.   We thus held that  defendant officials' failure            to  identify themselves to  the plaintiff s decedent  in 1990            did   not  violate  a  "clearly  established  law,"  and  the            defendants  were  "entitled  to qualified  immunity  on  [the            failure to announce] theory."  Id.                                           ___                      The same  is true here.  Plaintiffs' claim rests at            best on  Wilson; Wilson  was decided in  1995; the  search of                     ______  ______            plaintiffs'  residence occurred in 1993.  We affirm the grant            of summary judgment to defendants on this claim.            D.  Use of Excessive Force in Executing the Search                ______________________________________________                      Plaintiffs  claim that the search of their home was            unreasonable because it was carried out with an excessive use            of force.                                           -19-                                          19                      Plaintiffs  basic theory  may  be  sound but  their            arguments  seek shelter  in the  wrong  doorway.   Plaintiffs            point  us  to   the  substantive  due  process   "shocks  the            conscience" standard  announced in Rochin  v. California, 342                                               ______     __________            U.S. 165 (1952).  But  an "excessive force" claim that arises            in the context  of a search or seizure  is "properly analyzed            under  the  Fourth   Amendment's  'objective  reasonableness'            standard."    Graham  v. Connor,  490  U.S.  386,  388 (1989)                          ______     ______            (expressly rejecting the Rochin "shocks  the conscience" test                                     ______            where the  claim arises  in the context  of an  investigatory            stop).   "The 'reasonableness' of  a particular use  of force            must be  judged from the perspective of  a reasonable officer            on  the  scene,   rather  than  with  the   20/20  vision  of            hindsight."   Id.  at 396;    see also  Alexis v.  McDonald's                          ___           __________  ______     __________            Restaurants, 67 F.3d  341, 352 (1st  Cir. 1995) ("[A]  viable            ___________            excessive  force  claim  must  demonstrate  that  the  police            defendant's actions  were not objectively  reasonable, viewed            in light of the  facts and circumstances confronting  him and            without regard to his underlying intent or motivation.").                      Plaintiffs  point  to  the  following  actions   in            support  of their  excessive  force  claim:    the  officers             failure  to announce  their presence,  the  use of  10 to  15            officers to carry out the search,  the use of an ax to  knock            down the door,  the use  of dogs during  the search, and  one                                         -20-                                          20            officer s   allegedly   threatening  behavior   directed   at            plaintiff Iris Teresa.                       We will assume  that there may be  searches carried            out in  such an excessive  manner that they  are unreasonable            under the Fourth Amendment.  It is also true that the typical            "excessive force" claim  arises in the  context of an  arrest            and generally  involves physical  contact and  injury to  the            arrestee.  Here,  there was no arrest, no  physical force was            used on any  of the plaintiffs,  and none sustained  physical            injury.    To  the extent  there can be  such a claim  in the            absence of  physical force, the  plaintiffs themselves stated            in  their depositions  that the searching  officers conducted            themselves in an orderly manner  once inside the home.  Under            these circumstances, we doubt  any Fourth Amendment violation            at all has been stated,  let alone one unreasonable enough to            overcome official immunity.  See Hinojosa v. City of Terrell,                                         ___ ________    _______________            834  F.2d  1223,  1229  (5th  Cir. 1988)  (in     1983  suit,            excessive force claim was not sustainable  where there was no            evidence of physical injury).                       The only  allegation worthy  of discussion is  that            Officer  Jimmy Col n directed abusive language at Iris Teresa            when  she  sought entry  to  plaintiffs'  home, and  that  he            displayed his  weapon and threatened  to kill her if  she did            not stay behind the police barricade.                                         -21-                                          21                      We assume that  Iris Teresa's version of  the facts            is accurate -- that Col n  threatened her and pointed his gun            at her.  Even so, as the district court held, defendant Col n            is entitled to  qualified immunity.  Iris  Teresa insisted on            entering the  house at the  time a police search  for weapons            was underway.   Col n was  posted at the blockade  and it was            his  duty to  ensure  that  no one  entered  the house.    He            reasonably could have believed  that he needed to assert  his            authority  in order  to  prevent  Iris  Teresa  from  passing            through the blockade.  Indeed,  the threat may well have been            reasonably intended  to avoid  the need  to use  any physical            force to restrain her.  There is no dispute that no  physical            force was used.   Cf. Hinojosa, 834 F.2d 1223, 1229-30.9  The                              ___ ________            evidence  is plainly insufficient  to sustain a  finding that            Col n's actions were objectively unreasonable.                                              ____________________            9.   In  Hinojosa, the  Fifth  Circuit confronted  a  similar                     ________            situation and found the lack  of physical injury to be highly            relevant in deciding the excessive use of force claim:                      There  is absolutely  no evidence  . .  .                      that   Hinojosa  was   struck,  or   even                      touched, during  the incident.   Hinojosa                      did not claim to have suffered even minor                      physical  injuries  or   intrusion.    He                      sought no medical attention. . . .  Thus,                      even stretching the  testimony as far  as                      possible  in a  light  most favorable  to                      Hinojosa,  the  only harm  occasioned  by                      Jones'   pointing   his   gun   was   the                      understandable     immediate    emotional                      distress of Hinojosa  at being the target                      of the gun point.            834 F.2d at 1230.                                         -22-                                          22            E.  Supervisory Liability                _____________________                      Finally, we affirm  the district  court s grant  of            summary  judgment  on  the  claim  that  defendants  Haddock,            Toledo-D vila,  Zapata, and  Ort z-D az  are liable  in their            supervisory capacity.  Plaintiffs argue that these defendants            were  negligent  in  the  training  and  supervision  of  the            searching officers, and that they therefore exhibited callous            indifference to plaintiffs  constitutional rights.                      Supervisory  liability  under     1983  "cannot  be            predicated on a  respondeat theory, but only on  the basis of            the supervisor s own acts or omissions."  Seekamp v. Michaud,                                                      _______    _______            109 F.3d 802,  808 (1st Cir.  1997) (citations and  quotation            marks omitted).   There is supervisory liability  only if (1)            there  is subordinate  liability,  and  (2) the  supervisor s            action  or   inaction  was  "affirmatively  linked"   to  the            constitutional  violation caused by the subordinate.  See id.                                                                  ___ ___            (citing Lipsett v. University  of Puerto Rico, 864  F.2d 881,                    _______    __________________________            902 (1st Cir.  1988)).  That affirmative link  must amount to            "supervisory encouragement,  condonation or  acquiescence, or            gross  negligence  amounting   to  deliberate  indifference."            Lipsett, 864 F.2d at 902.            _______                      There  is no  possibility of  subordinate liability            except for the  falsification claim against defendant  Laboy.            See supra.   But plaintiffs' evidence  does not link  Laboy's            ___ _____            supposed  falsehoods to  supervisory  condonation or  callous                                         -23-                                          23            indifference.  None of the defendants here had any connection            to Laboy's affidavit.                        Plaintiffs  offer evidence  that defendant  Haddock            pressured his subordinates  to execute at least  three search            warrants  every month.  They also  offer documents they claim            prove  Laboy's history of misconduct, including a 1989 Puerto            Rico  Supreme Court case  criticizing Laboy for  having acted            irresponsibly  in a  criminal case  in 1985.   See  People v.                                                           ___  ______            Castillo Morales, 123 P.R. Dec. 690 (1989).  That Haddock may            ________________            have exerted pressure on his staff to execute search warrants            is not evidence he acquiesced in or callously disregarded the            making of false statements to  a judicial officer.  And while            a supervisor's failure  to take remedial actions  regarding a            miscreant officer  may result in supervisory  liability where            it  amounts   to  "deliberate  indifference,"  see   Diaz  v.                                                           ___   ____            Martinez, 112 F.3d  1, 4 (1st Cir. 1997),  a judicial opinion            ________            citing Laboy  as irresponsible in something he did nine years            before  the  events at  issue  here does  not  establish such            indifference.                                           III.                      The district  court's grant of summary  judgment is            reversed and remanded with respect to the falsification claim            _____________________            against  defendant Laboy  in  the  obtaining  of  the  search                                         -24-                                          24            warrant,  and  affirmed  with respect  to  all  other claims,                           ________            including the claims against all the remaining defendants.10                      Each side shall bear its own costs.                                            ____________________            10.      After   oral  argument,   plaintiffs   submitted   a            "Supplemental Request for  Relief."  Plaintiffs  request that            if  we  reverse as  to  some  defendants,  we remand  to  the            district  court  with  the   instruction  that  it   exercise            supplemental (pendent party)  jurisdiction over the remaining            defendants as to whom there are viable state law claims.  See                                                                      ___            28  U.S.C.     1367.   The  only  claim as  to  which  we are            reversing  is the falsification  claim against Laboy.   As we            see it,  the claim  that Laboy made  false statements  in his            warrant application is  entirely distinct from any  state law            claims that  might arise out  of the execution of  the search            itself.   We decline  plaintiffs' invitation to  instruct the            district court to exercise  supplemental jurisdiction; but we            do  so without  prejudice  to plaintiffs'  right  to ask  the            district court,  in its discretion, to  exercise supplemental            jurisdiction on remand.                 Our disposition of this matter obviates the need to rule            on  defendants' "Motion  Requesting Appellants'  Supplemental            Request  for Relief  Be Stricken,"  which  they submitted  in            response to plaintiffs' "Supplemental Request."                                          -25-                                          25
