

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 94-2138

      WILFREDO MARTINEZ, a/k/a WILFREDO MARTINEZ RODRIGUEZ,

                      Plaintiff, Appellant,

                                v.

        RAFAEL COLON, a/k/a RAFAEL COLON PIZARRO, ET AL.,

                      Defendants, Appellees.

                                              

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Raymond L. Acosta, U.S. District Judge]                                                                

                                              

                              Before

                     Torruella, Chief Judge,                                                     

                  Bownes, Senior Circuit Judge,                                                        

                    and Selya, Circuit Judge.                                                      

                                              

     John  E. Mudd,  with whom  Howard Charles  and Ortiz  Toro &amp;                                                                           
Ortiz Brunet Law Offices were on brief, for appellant.                                  
     Edgardo  Rodriguez-Quilichini, Assistant  Solicitor General,                                            
with whom Pedro Delgado  Hernandez, Solicitor General, and Carlos                                                                           
Lugo  Fiol,   Deputy  Solicitor  General,  were   on  brief,  for                    
appellees.

                                             

                           May 31, 1995

                                             

          SELYA, Circuit  Judge.  This appeal  raises interesting                    SELYA, Circuit  Judge.                                         

questions  about the contours of 42 U.S.C.    1983 (1988) and the

reach  of  the  Supreme  Court's  core  holding  in  DeShaney  v.                                                                       

Winnebago  County  Social  Servs.  Dep't, 489  U.S.  189  (1989).                                                  

Concluding, as we do, that the court  below appropriately applied

DeShaney,  we  affirm  the  entry  of  summary  judgment  in  the                  

defendants' favor.

I.  BACKGROUND          I.  BACKGROUND

          Consistent  with the method of  Fed. R. Civ.  P. 56, we

canvass the material facts in a light that flatters, but does not

impermissibly distort,  the plaintiff's claims.   We then recount

the travel of the case.

                          A.  The Facts.                                    A.  The Facts.                                                 

          We outline  the facts, omitting the  graphic details on

which  our dissenting  brother prefers  to dwell.   In  our view,

these  details  are not  relevant to  the  legal issues  posed on

appeal.

          In the early morning hours  of May 26, 1988, plaintiff-

appellant  Wilfredo Martinez  Rodriguez  (Martinez),  a  youthful

member of Puerto Rico's  police force, drove to the  Loiza Street

Precinct,  located in  the  San Juan  metropolitan area.   Though

Martinez was not scheduled to begin his shift until 4:00 a.m., he

arrived  early, pursuant to local custom, in order to procure his

post  assignment.  Martinez alleges that he  was on duty from the

moment  he arrived    even before his shift  began   because from

that  point  forward he  was  subject  to  the shift  commander's

                                2

orders.

          Upon  Martinez' arrival,  a fellow  officer who  was on

duty at  the time,  Angel Valentin Corali  (Valentin), approached

Martinez' car and called him "pretty boy" ("papito lindo").  When

Martinez alighted, Valentin drew his service revolver, pointed it

at Martinez' stomach, cocked the hammer, placed his finger on the

trigger,  and  inquired if  Martinez was  afraid.   Valentin then

disarmed  the weapon,  and Martinez  hurried inside  the station,

first telling  Valentin:  "Don't  horse around with  that because

you will kill me."

          Shortly  after  this  fracas  had   occurred,  Valentin

accosted Martinez in the  radio room, inserted his finger  into a

small hole in Martinez'  undershirt, and ripped it.   Once again,

Martinez walked away  from Valentin.   He then  changed into  his

uniform, entered  the waiting  room, and  reported  to his  shift

supervisor, defendant-appellee Juan Trinidad Marrero (Trinidad).

          Soon  thereafter,  Valentin  reappeared,   pointed  his

revolver at Martinez' genitals, cocked  the hammer, and, with his

finger on the trigger, threatened to "blow away" Martinez'  penis

(asking  him, somewhat  rhetorically, if  he was  scared).   When

Valentin lowered the weapon, Martinez immediately moved away from

him.   Within minutes Valentin again  approached Martinez, cocked

the  revolver,  aimed  it  at Martinez'  groin,  and  resumed his

taunting.     The   revolver  accidentally   discharged,  maiming

Martinez.

          The  first  encounter  took  place  in  the  precinct's

                                3

parking lot and  the rest transpired  inside the police  station.

According to Martinez, roughly  twenty minutes elapsed from start

to finish.  All  parties agree that the shooting,  which occurred

before the 4:00 a.m. shift change, was unintentional.1

                     B.  Travel of the Case.                               B.  Travel of the Case.                                                     

          On  May  22,  1989,  Martinez  filed  suit  in  federal

district  court  against   numerous  defendants,  including,   as

relevant here, Rafael Colon Pizarro (Colon), Luis A. Velez Rentas

(Velez),  and  Trinidad  (collectively, "the  officers"  or  "the

defendants").2     Invoking  42  U.S.C.      1983  and  premising

jurisdiction  on the  existence  of a  federal  question, see  28                                                                       

U.S.C.     1331  (1988), he  alleged  that  his  rights had  been

abridged in that each  defendant owed him a duty to intervene and

protect  him  from readily  discernible harm  at  the hands  of a

fellow  officer,  but  each   defendant  breached  this  duty  by

subsequent  inaction.3   Martinez  asserted  pendent tort  claims

with respect  to  all  three  defendants  and,  with  respect  to
                                                  

     1In  his memorandum of law  in support of  his opposition to
defendant  Carlos Lopez-Feliciano's  motion to  dismiss, Martinez
stated that  "the revolver apparently fired by accident."  Record
Appendix  at  21.   At  any  rate,  the  summary judgment  record
contains no facts that would support a contrary finding; and, for
aught  that appears,  Martinez has  never asserted  that Valentin
shot him intentionally.

     2Plaintiff asserted claims against several other defendants,
including  Valentin and  Lopez-Feliciano.   Those claims  are not
before us, and we ignore them for purposes of this opinion.

     3Although  the underlying  facts  are  hotly  contested,  we
assume  for purposes of this  appeal, as Martinez  would have it,
that  all three  defendants witnessed  the entire  progression of
events and had a meaningful opportunity to intervene at each step
along the way.

                                4

Trinidad,  asserted a  section  1983 claim  based on  supervisory

liability.

          After  a  flurry of  pretrial  discovery,  the officers

moved for  summary  judgment.   They  argued,  inter  alia,  that                                                                    

Valentin was not acting under color  of state law when the mishap

occurred; and that, therefore,  onlooker officers did not have  a

constitutional  duty  to  intervene  on Martinez'  behalf.    The

district  court   referred  the  motions  and   Martinez'  timely

opposition to a magistrate judge.  The magistrate concluded that,

under DeShaney, the officers  had no constitutional obligation to                        

protect Martinez from Valentin's  actions, and urged the district

court to grant summary  judgment.  The plaintiff objected  to the

magistrate's report and  recommendation, but the  district court,

affording de novo review, see Fed. R. Civ.  P. 72(b), adopted the                                       

report,  accepted   the  recommendation,  and   entered  judgment

accordingly.  This appeal followed.

II.  THE SUMMARY JUDGMENT STANDARD          II.  THE SUMMARY JUDGMENT STANDARD

          A district  court may  grant summary judgment  only "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). We have  charted the boundaries  of this

rule in case after  case, see, e.g., Coyne  v. Taber Partners  I,                                                                          

    F.3d    ,     (1st Cir. 1995) [No. 94-2231, slip op. at 4-5];

National Amusements, Inc.  v. Town  of Dedham, 43  F.3d 731,  735                                                       

                                5

(1st Cir. 1995), petition for cert. filed, 63 U.S.L.W. 3736 (U.S.                                                   

Apr. 4, 1995) (No. 94-1630); Vasapolli v. Rostoff, 39 F.3d 27, 32                                                           

(1st Cir. 1994); Dow v. United  Bhd. of Carpenters, 1 F.3d 56, 58                                                            

(1st Cir.  1993); Pagano v.  Frank, 983 F.2d  343, 347 (1st  Cir.                                            

1993); Wynne  v. Tufts Univ. Sch.  of Med., 976 F.2d  791, 793-94                                                    

(1st Cir. 1992),  cert. denied,  113 S. Ct.  1845 (1993);  United                                                                           

States v. One  Parcel of  Real Property (Great  Harbor Neck,  New                                                                           

Shoreham, R.I.),  960  F.2d 200,  204  (1st Cir.  1992);  Rivera-                                                                           

Muriente v. Agosto-Alicea, 959 F.2d  349, 351-52 (1st Cir. 1992);                                   

Medina-Munoz v. R.J. Reynolds  Tobacco Co., 896 F.2d 5,  7-8 (1st                                                    

Cir. 1990); Garside v.  Osco Drug, Inc., 895 F.2d 46,  48-49 (1st                                                 

Cir.  1990); Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir.                                           

1989), and  it would  serve no  useful purpose  to draw that  map

anew.

          For  present purposes,  we need  say no more  than that

summary judgment will  lie if the record, even when  taken in the

aspect most favorable to  the nonmovant, see Rivera-Muriente, 959                                                                      

F.2d at  352, fails  to  yield a  trialworthy  issue as  to  some

material  fact.  In applying  this principle, it  is important to

bear in mind that not every genuine factual conflict necessitates

a trial.  It is  only when a disputed  fact has the potential  to

change the outcome of  the suit under the governing law  if found

favorably  to  the  nonmovant  that  the  materiality  hurdle  is

cleared.   See One  Parcel, 960  F.2d at 204.   Here,  the record                                    

reflects a veritable salmagundi of bitterly  disputed facts   but

none that is material.

                                6

          To  that   extent,  then,   our  task   is  simplified.

Exercising  de  novo review,  see Pagano,  983  F.2d at  347, and                                                  

adopting the  plaintiff's version of all  controverted facts (but

not,  however,  giving   credence  to  "conclusory   allegations,

improbable  inferences,  [or]  unsupported speculation,"  Medina-                                                                           

Munoz, 896 F.2d  at 8), we conclude that the  court below did not               

err in jettisoning the section 1983 claims.

III.  ANALYSIS          III.  ANALYSIS

          There  are two  essential elements  of an  action under

section  1983:   "(i)  that the  conduct  complained of  has been

committed  under color of state  law, and (ii)  that this conduct

worked a denial of rights secured by the Constitution or laws  of

the  United States."  Chongris v. Board  of Appeals, 811 F.2d 36,                                                             

40 (1st Cir.), cert. denied, 483 U.S. 1021 (1987); accord West v.                                                                        

Atkins, 487 U.S.  42, 48  (1988); Daniels v.  Williams, 474  U.S.                                                                

327,  330-31 (1986).   Of  course, the  reference to  "state law"

cannot  be taken literally, for Puerto Rico enjoys the functional

equivalent  of statehood  in regard  to section  1983 and,  thus,

state law includes Puerto Rico law.  See Playboy Enters., Inc. v.                                                                        

Public  Serv. Comm'n  of P.R., 906  F.2d 25,  31 n.8  (1st Cir.),                                       

cert.  denied, 498 U.S. 959  (1990); Berrios v.  Inter Am. Univ.,                                                                          

535  F.2d 1330, 1331 n.3  (1st Cir.), appeal  dismissed, 426 U.S.                                                                 

942 (1976).

          For  purposes of  this  appeal, the  defendants do  not

contest the  plaintiff's allegation that, at  all relevant times,

the  defendants were on duty and acting under color of state law.

                                7

This concession  reduces our inquiry to whether  the facts, taken

most congenially to the plaintiff, can support a finding that the

defendants violated  a right secured  to the plaintiff  either by

the  Constitution or by federal law.  Since the plaintiff has not

alleged the transgression  of any  right secured to  him under  a

federal  statute,  we  may  narrow  the  inquiry  still  further,

limiting   it  to  whether  the  facts  show  a  violation  of  a

constitutional right.   It is  to this elusive  question that  we

next proceed.

                    A.  The Duty to Intervene.                              A.  The Duty to Intervene.                                                       

          Plaintiff pins  his hopes  principally on a  claim that

the defendants'  failure to protect  him from the  imminent peril

posed by Valentin  abridged his right to substantive due process.

The  touchstone of the  law in this  area is  the Supreme Court's

opinion  in DeShaney.  There,  a child sued  for damages under 42                              

U.S.C.     1983, claiming  that employees  of a  state-run social

service  agency,  on  notice  of  a  parent's  abusive  behavior,

nonetheless  failed  to  protect   the  child  from  the  readily

foreseeable danger.   See DeShaney, 489  U.S. at 193.   The Court                                            

affirmed  the entry  of  summary judgment  in defendants'  favor.

Chief Justice Rehnquist, writing for the majority, explained that

the Due Process Clause  ordinarily does not require the  state to

protect  an  individual's life,  limb,  or  property against  the

marauding of third parties not acting to the state's behoof.  See                                                                           

id.  at  196.   Consequently, "a  State's  failure to  protect an             

individual against private violence  simply does not constitute a

                                8

violation of the Due Process Clause."  Id. at 197.                                                    

          Although the  DeShaney Court left open  the possibility                                          

of  certain  circumscribed  exceptions  to the  general  rule  of

nonliability,  Martinez makes no effort to slide within them.  He

does not  argue that he was in the  custody of the state, see id.                                                                           

at 198-200  (discussing right to  protection arising in  favor of

incarcerated   prisoners   and  involuntarily   committed  mental

patients), or that he was in its "functional custody," see id. at                                                                        

201 n.9 (discussing possible existence of situations analogous to

incarceration or institutionalization),  or that  the state  made

him  more  vulnerable to  Valentin's  actions,  see id.  at  201.                                                                 

Rather, Martinez contends that DeShaney is altogether inapposite.                                                 

          To the extent  that this contention is based simply and

solely  on the fact that, unlike in DeShaney, the defendants here                                                      

are  police officers,  not  social workers,  we  reject it.    Of

course,  police officers  sometimes have  an affirmative  duty to                                             

intervene  that is enforceable under the Due Process Clause.  For

example, "[a]n officer who is present at the scene [of an arrest]

and who fails  to take reasonable steps to protect  the victim of

another officer's use of excessive force can be held liable under

section  1983  for  his  nonfeasance,"  provided  that  he had  a

"realistic opportunity"  to prevent the other  officer's actions.

Gaudreault v. Municipality of  Salem, 923 F.2d 203, 207  n.3 (1st                                              

Cir.  1990), cert. denied, 500 U.S. 956 (1991); accord O'Neill v.                                                                        

Krzeminski,  839 F.2d 9, 11-12 (2d Cir.  1988).  But this line of                    

cases does not,  as plaintiff importunes, carve out  an exception

                                9

to  the DeShaney  rule.   Instead,  such  cases escape  the  rule                          

because the aggressor is acting under color of his public office.

          Gaudreault illustrates the point.  The quoted statement                              

specifically  contemplates that  the underlying  tortious conduct

take  place within the  context of  an arrest,  interrogation, or

similar  maneuver, see Gaudreault, 923  F.2d at 206-07  &amp; n.3, in                                           

which a differential  exists between the  victim and the  officer

precisely  because of  the latter's  status  as one  empowered to

enforce  the law,  coercively if  necessary, against  the former.

Similarly, O'Neill involved  the beating of  a handcuffed man  by                            

law enforcement officers during an interrogation in the detention

area of  a police station.   See  O'Neill, 839  F.2d at  10.   We                                                   

cannot imagine  a more  paradigmatic exercise of  state authority

than the processes of handcuffing, detaining, and interrogating a

citizen.   Gaudreault and O'Neill,  then, are cases  in which the                                           

aggressor is acting under color of  state law.  The DeShaney rule                                                                      

  which addresses  the "State's failure to protect  an individual

against private  violence," DeShaney,  489 U.S. at  197 (emphasis                                              

supplied)    is not implicated in such cases because the violence

in question  is not private  but "public," i.e.,  attributable to                                                         

state action.4
                                                  

     4A  constitutional  duty  to  intervene may  also  arise  if
onlooker  officers  are  instrumental  in  assisting  the  actual
attacker  to place  the victim  in a  vulnerable position.   See,                                                                          
e.g., Byrd  v. Brishke,  466 F.2d  6, 9-11  (7th Cir. 1972);  cf.                                                                           
DeShaney,  489 U.S.  at 201  (recognizing a  possible affirmative                  
constitutional  duty to  protect against  certain dangers  if the
state takes "part in their creation" or does something "to render
[the  victim] more vulnerable to them").  In such a scenario, the
onlooker officers and the aggressor officer are essentially joint

                                10

          Private violence   even  private violence engaged in by

one  who happens  to work  for the  state    has  different legal

ramifications than  violence attributable to state  action.  See,                                                                          

e.g., Hughes v.  Halifax County  Sch. Bd., 855  F.2d 183,  186-87                                                   

(4th  Cir.  1988)  (distinguishing  private  actions  of   county

maintenance workers  from cases in which  "the actions complained

of were committed  while the  defendants were  purporting to  act

under  the authority  vested  in  them  by  the  state,  or  were

otherwise  made  possible  because  of the  privileges  of  their

employment"), cert. denied, 488 U.S. 1042 (1989).                                    

          Thus we  recently held,  in light  of DeShaney,  that a                                                                  

district attorney's  office had no  constitutional obligation  to

protect a citizen against self-inflicted private violence (there,

noncustodial suicide) alleged to have been caused  by the state's

implication of him in a multiple murder case.  See Souza v. Pina,                                                                          

    F.3d     ,     (1st Cir.  1995) [No. 94-2079, slip  op. at 9-

11].   Interpreting  DeShaney  to  say  that  the  state  has  no                                       

generalized  duty to  protect its  citizens from  violence except

when it sets the stage by acting affirmatively (as in a custodial

setting),  see id.  at     [slip  op. at  9], we  concluded that,                            

although the state's acts may have "rendered [the  decedent] more

vulnerable  to danger  in  the sense  that  those acts  may  have

                                                  

tortfeasors  and,  therefore,  may  incur  shared  constitutional
responsibility.   See generally Monroe v. Pape, 365 U.S. 167, 187                                                        
(1961) (advising courts to read section 1983 against the backdrop
of historical tort liability).  Because there is no indication of
any  such joint enterprise here,  we have no  occasion to explore
the viability of the theory.

                                11

exacerbated    or even brought about    [the decedent's] suicidal

tendencies .  . . these are not the kind of `affirmative acts' by

the  state that  would  give rise  to  a constitutional  duty  to

protect."   Id.  at      [slip  op.  at 10]  (citing  Monahan  v.                                                                       

Dorchester Counseling Ctr., Inc., 961 F.2d 987,  992-93 (1st Cir.                                          

1992)).

          Translated to the police  milieu, these cases mean that

when an on-duty police  officer witnesses violence, the existence

vel non of  a constitutional  duty to intervene  will most  often                 

hinge on whether  he is witnessing  private violence or  violence

attributable to state  action.   It remains  to be  seen how  and

where the line that separates one from the other should be drawn.

                       B.  Private Action.                                 B.  Private Action.                                                   

          In  attempting  to  distinguish  private  violence from

violence attributable  to state  action for purposes  of applying

the DeShaney rule, courts  must beware simplistic solutions.   To                      

be  sure,  violence  is  attributable  to  state  action  if  the

perpetrator  is  acting under  color  of  state law,  see,  e.g.,                                                                          

Earnest  v. Lowentritt,  690  F.2d  1198,  1200 (5th  Cir.  1982)                                

("Section 1983  does not  reach all constitutional  injuries, but

only  those  caused  by  persons  acting  `under  color of  state

law.'"),  but  that is  a  virtual tautology.    Furthermore, the

construct   "acting under color of state law"   rarely depends on

any single, easily determinable fact, such as a policeman's garb,

see, e.g., Stengel v. Belcher, 522 F.2d 438,  441 (6th Cir. 1975)                                       

(explaining  that whether  a  police officer  is  "in or  out  of

                                12

uniform  is  not controlling"),  cert.  dismissed,  429 U.S.  118                                                           

(1976),  duty status, see, e.g., Pitchell v. Callan, 13 F.3d 545,                                                             

548 (2d Cir. 1994) (explaining that "whether an officer was on or

off  duty   when  the   challenged  incident  occurred"   is  not

dispositive); Stengel,  522 F.2d  at 441 (same),  or whereabouts,                               

see,  e.g., Delcambre v. Delcambre,  635 F.2d 407,  408 (5th Cir.                                            

1981)  (per curiam) (holding that  a police chief's  assault on a

private citizen was not conduct under color of law even though it

occurred at police  headquarters).  Nor does  "acting under color

of  state law" depend on whether an officer stays strictly within

the line of duty, or oversteps it.  See Monroe v. Pape, 365  U.S.                                                                

167,  172 (1961);  Screws  v. United  States,  325 U.S.  91,  111                                                      

(1945).   For  instance,  a police  officer  who  exercises,  but

misuses or exceeds, his lawfully possessed authority is generally

thought to  be acting under color  of law.  See,  e.g., Gibson v.                                                                        

City of Chicago, 910 F.2d 1510, 1518 (7th Cir. 1990).                         

          The point is that segregating private action from state

action  calls for  a more  sophisticated analysis.   In  general,

section  1983 is  not implicated unless  a state  actor's conduct

occurs in the course of performing an actual or apparent  duty of

his office, or  unless the conduct is  such that the  actor could

not have behaved in that way but for the authority of his office.

Thus, whether a police officer is acting under color of state law

turns on  the nature and  circumstances of the  officer's conduct

and  the relationship of that  conduct to the  performance of his

official duties.   See Pickrel  v. City of  Springfield, 45  F.3d                                                                 

                                13

1115,  1118 (7th Cir. 1995); Anthony v. County of Sacramento, 845                                                                      

F. Supp. 1396, 1400 (E.D. Cal. 1994).

          We think this focus follows inexorably from West, where                                                                    

the  Court wrote  that  "[t]he traditional  definition of  acting

under color of state law  requires that the defendant . .  . have

exercised  power  `possessed  by virtue  of  state  law  and made

possible only because the wrongdoer is clothed with the authority

of state law.'"  West,  487 U.S. at 49 (quoting United  States v.                                                                        

Classic, 313  U.S. 299, 326 (1941)).   Hence, a person acts under                 

color  of state law "when he abuses  the position given to him by

the  State."   Id. at  50.   The key  determinant is  whether the                            

actor, at the time  in question, purposes  to act in an  official

capacity or  to exercise  official  responsibilities pursuant  to

state law.  See id.                             

          Logically,  then,  not  every action  undertaken  by  a

person who happens to be a  police officer is attributable to the

state.   Though "under `color'  of law means  under `pretense' of

law," even so, the acts of state officials "in the ambit of their

personal pursuits" are  not state  action.  Screws,  325 U.S.  at                                                            

111;  see  also  Gibson,  910  F.2d  at  1518.    Accordingly,  a                                 

policeman's private conduct, outside the line of duty and unaided

by  any indicia of actual  or ostensible state  authority, is not

conduct occurring under color of state law.  See Barna v. City of                                                                           

Perth Amboy, 42 F.3d  809, 816 (3d Cir.  1994); United States  v.                                                                       

Tarpley, 945 F.2d 806, 809 (5th Cir. 1991),  cert. denied, 112 S.                                                                   

Ct. 1960  (1992); Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476,                                                            

                                14

479  (9th Cir.  1991); Murphy  v. Chicago  Transit Auth.,  638 F.                                                                  

Supp. 464, 467 (N.D. Ill. 1986); Johnson v. Hackett, 284 F. Supp.                                                             

933,  937 (E.D. Pa.  1968).  Even  though "acting  under color of

law"  includes "acting under pretense  of law" for  purposes of a

state action analysis, there can be no pretense if the challenged

conduct  is  not related  in some  meaningful  way either  to the

officer's  governmental  status  or  to the  performance  of  his

duties.

                 C.  Separating Wheat from Chaff.                           C.  Separating Wheat from Chaff.                                                          

          Explicating the standard for segregating private action

from action attributable to the state does not complete our task.

Since the private conduct of police officers does  not constitute

action attributable to  the state and,  therefore, does not  give

rise  to section 1983  liability under DeShaney  or otherwise, we                                                         

must  determine whether  Valentin,  at  the  time  and  place  in

question, was engaged in purely personal pursuits or, conversely,

whether he was  acting under color  of state law.   To do so,  we

must assess the nature of his conduct in light of the totality of

surrounding circumstances.  See Pitchell, 13 F.3d at 548;  Revene                                                                           

v.  Charles County Comm'rs, 882 F.2d 870, 872-73 (4th Cir. 1989);                                    

Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980).                           

          Here,   the   record  is   transpicuously   clear  that

throughout  the  course  of  Martinez' ordeal  Valentin  did  not

exercise, or purport to  exercise, any power (real or  pretended)

possessed by virtue of state law.  To  the contrary, Valentin was

                                15

bent   on  a   singularly   personal  frolic:     tormenting   an

acquaintance.5  Though on duty  and in uniform, Valentin's status

as  a  police officer  simply did  not  enter into  his benighted

harassment  of his fellow officer.   Hazing of  this sort, though

reprehensible, is not action under color or pretense of law.

          Nor  can it be said that Valentin's actions were in any

meaningful  way related either to  his official status  or to the

performance of his police duties.  In this regard, the case bears

a  resemblance to Delcambre.  There, the Fifth Circuit ruled that                                     

the  plaintiff, who  had been  assaulted on  the premises  of the

municipal police station by her brother-in-law, the police chief,

had no cognizable  claim under 42 U.S.C.    1983.  See Delcambre,                                                                          

635 F.2d at 408.  The assault arose out of a family squabble, and

the court found that the  police chief, though on duty, "was  not

acting  under color  of  law  as  required  for  liability  under

[section 1983]."  Id.                               

          To  be sure,  Valentin shot  Martinez with  his service

revolver, and  in that sense it might be argued that the shooting

was made possible by Valentin's status  as a police officer.  See                                                                           

Cassady v. Tackett, 938 F.2d 693, 695 (6th Cir. 1991) (concluding                            

that,  in "allegedly flourishing and threatening  to use his gun"

against  a coworker, the defendant acted under color of state law

because he "had authority or  power to carry the gun in  the jail

                                                  

     5To  use the  plaintiff's spoken  characterization, Valentin
was "hors[ing] around";  or, as  plaintiff put it  in his  second
amended complaint, "playing `Russian roulette' with another man's
genitalia."

                                16

only  because he  was  [the  county's]  elected jailer").    This

argument succumbs for  a very  basic reason:   plaintiff did  not

proffer  it  either in  the district  court  or in  his appellate

brief.   The argument is, therefore, not properly before us.  See                                                                           

United  States v.  Slade, 980  F.2d 27,  30 n.3  (1st Cir.  1992)                                  

(stating  that  theories  not  briefed  on  appeal  are  waived);

Teamsters, Chauffeurs,  Warehousemen &amp; Helpers Union v. Superline                                                                           

Transp. Co., 953  F.2d 17, 21 (1st Cir. 1992)  ("If any principle                     

is  settled  in  this  circuit,  it  is  that,  absent  the  most

extraordinary circumstances, legal  theories not raised  squarely

in  the  lower court  cannot be  broached for  the first  time on

appeal.").

          Even if the  argument were properly before us, we would

not embrace it.   We do not think  it is reasonable to hold  that

every  use of  a policeman's  gun, even in  the course  of purely               

personal pursuits, creates a cause of  action under section 1983.

Instead, we are of the  view that the context in which  a service

revolver is  used, not  just the  mere fact of  its use,  must be

consulted  to  determine  the  constitutional  relevance  of  the

officer's conduct.   See Payne  v. Government of  D.C., 559  F.2d                                                                

809, 825 n.9 (D.C.  Cir. 1977).  Consequently, "[w]hile  a police

officer's use of a  state-issue weapon in the pursuit  of private

activities  will  have  `furthered'  the    1983  violation  in a

literal  sense,"  a  court  needs "additional  indicia  of  state

authority to conclude that the officer acted under color of state

law."  Barna, 42  F.3d at 817-18 (holding that  "unauthorized use                      

                                17

of  a police-issue nightstick is  simply not enough  to color [a]

clearly  personal family  dispute  with the  imprimatur of  state

authority").

          Here,  plaintiff has not  produced any evidence tending

to  show that his  tormentor, when  brandishing the  firearm, was

exercising  or purporting  to  exercise police  power.6   In  the

absence of any  additional indicia  of state  action, we  believe

that the  unauthorized use  of a government-issue  weapon is  too

attenuated a link  to hold together  a section 1983  claim.   See                                                                           

Barna, 42  F.3d at 818-19; Payne,  559 F.2d at 825  n.9; see also                                                                           

Bonsignore v. City of  N.Y., 683 F.2d 635, 638-39 (2d  Cir. 1982)                                     

(holding  that a police officer  who wounded his  wife and killed

himself  using a gun which he was  authorized to carry because of

his status as an officer "was not acting under color of state law

since his actions were  not `committed in the performance  of any
                                                  

     6Had Martinez been a civilian rather than a  fellow officer,
the significance of Valentin's uniform and weapon for purposes of
the  color-of-law  determination  might well  have  been greater.
See, e.g., Jones  v. Gutschenritter, 909 F.2d  1208, 1212-13 (8th                                             
Cir.  1990) (observing that the presence of a uniformed and armed
police officer may  reasonably cause a  civilian to refrain  from
taking  action to protect  his rights).   But when  the victim is
himself a  fellow officer and the  particular interaction between
the  two officers is of  a distinctively personal  nature, it can
generally  be assumed  that the  aggressor's  official trappings,
without  more, will  not  lead the  victim  to believe  that  the
aggressor  is acting  with the  imprimatur of  the state  and, in
turn, to  forgo exercising his  legal rights.  The  facts in this
case  are congruent with this hypothesis.  The campaign of terror
that  Valentin  mounted  was  patently personal  in  nature,  and
Martinez unquestionably  realized as much; indeed,  there was not
the slightest indication that  Valentin's conduct was  undertaken
pursuant to the authority of his office.   Plainly, the fact that
Martinez walked away  numerous times  shows that he  was not  "so
intimidated" by Valentin's status as a policeman "as to cause him
to refrain from exercising his legal right[s]."  Id. at 1212.                                                              

                                18

actual  or pretended duty,' but  were performed `in  the ambit of

[his]  personal pursuits'")  (quoting  Screws, 325  U.S. at  111;                                                       

Johnson, 284 F. Supp. at 937).                 

          We   add  an   eschatocol  of   sorts.     Even   if  a

constitutional duty  to intervene conceivably  could be dragooned

from these facts, then in that event the location of this case in

the penumbra of DeShaney dictates that the defendants nonetheless                                  

would enjoy  qualified immunity and, since  appellant's suit only

seeks  money damages,  the  defendants would  be  entitled to  an

affirmance on  this alternative ground.  See,  e.g., Garside, 895                                                                      

F.2d at 48-49 (explaining that a grant of summary judgment can be

affirmed on any independently  sufficient ground made manifest in

the record).  We elaborate below.

          "In analyzing a claim  of qualified immunity, . .  . we

are   concerned  with   clearly  established   constitutional  or                                                      

statutory rights of which  a reasonable officer would  have known

at the time he took action."  Crooker v. Metallo, 5 F.3d 583, 584                                                          

(1st  Cir. 1993) (emphasis supplied).  When used in this context,

the phrase "clearly established" has a well-defined meaning.   It

denotes  that at  the time  the challenged  conduct occurred  the

contours  of the right were sufficiently  plain that a reasonably

prudent  state  actor would  have  realized not  merely  that his

conduct  might  be  wrong,  but  that  it violated  a  particular

constitutional right.  See  Anderson v. Creighton, 483 U.S.  635,                                                           

640  (1987); Buenrostro  v. Collazo,  973 F.2d  39, 42  (1st Cir.                                             

1992).  The inquiry into the nature of a constitutional right for

                                19

the purpose of ascertaining clear establishment seeks to discover

whether the right was  reasonably well settled at the time of the

challenged  conduct and  whether  the manner  in which  the right

related to the conduct was apparent.  See Wiley v. Doory, 14 F.3d                                                                  

993,  995 (4th Cir.  1994) (Powell, J.,  sitting by designation).

In mounting this inquiry,  courts may neither require that  state

actors faultlessly  anticipate the future trajectory  of the law,

see Crooker,  5 F.3d at  585 (noting  that a state  actor is  not                     

"expected  to  carry  a  crystal ball"),  nor  permit  claims  of

qualified  immunity to turn on the eventual outcome of a hitherto

problematic  constitutional  analysis,  see,  e.g.,   Collins  v.                                                                       

Marina-Martinez, 894  F.2d 474, 478 (1st  Cir. 1990) (recognizing                         

that "a plaintiff who is entitled to prevail on the merits is not

necessarily  entitled  to  prevail  on  the  issue  of  qualified

immunity");  accord Amsden  v. Moran,  904 F.2d 748,  751-52 (1st                                              

Cir.  1990)  (citing other  cases), cert.  denied, 498  U.S. 1041                                                           

(1991).

          Here, there can  be no  doubt that, at  the moment  the

maiming of Martinez  materialized, legitimate questions  abounded

as   to  whether   the  conduct   at  issue   violated  Martinez'

constitutional  rights.   After  all, DeShaney  had not  yet been                                                        

decided; thus,  the whole  question of  a constitutional duty  to

intervene  was  cloaked  in  uncertainty.    Even now,  with  the

guidance furnished by the DeShaney Court, the precise contours of                                            

the  rule  as  it   applies  to  onlooker  officers   are  murky.

Consequently,  even if Martinez had  some basis for  a claim that

                                20

the  defendants owed him a duty grounded in the Constitution, the

dimensions of  the right  were dimly  perceived (if  perceived at

all).    It  follows  inexorably  that  the  defendants would  be

entitled  to qualified  immunity and,  hence, entitled  to brevis                                                                           

disposition.

                       D.  Other Theories.                                 D.  Other Theories.                                                   

          In  addition   to  his  principal  due  process  claim,

Martinez advances  several other  theories.  All  are unavailing.

We mention three of them (rejecting the remainder without further

elaboration).

          1.   Violation of Local  Law.  Martinez  urges that the                    1.   Violation of Local  Law.                                                

defendants' breach  of a provision  of Puerto Rico's  Civil Code,

P.R. Laws Ann.  tit. 25,    1003 (1980),7  furnishes a basis  for

liability under 42 U.S.C.   1983.  He is wrong.

          It  is established  beyond  peradventure  that a  state

actor's  failure to observe a duty imposed by state law, standing

alone, is not a sufficient foundation on which to erect a section

1983 claim.   See, e.g., Amsden,  904 F.2d at  757; Chongris, 811                                                                      

F.2d  at  42-43.    Although  it  is  true  that   constitutional

significance  may attach  to certain  interests created  by state
                                                  

     7The statute provides in pertinent part that police officers
have a duty

          to protect persons and property,  to maintain
          and keep  the public  order,  to observe  and
          secure  the utmost  protection  of the  civil
          rights  of the  citizens,  to prevent  . .  .
          crime and . . . enforce obedience to the laws
          . . . .

P.R. Laws Ann. tit. 25,   1003 (1980).

                                21

law,  see, e.g.,  Chongris,  811  F.2d  at 43  (recognizing  that                                    

"property rights,  while protected  by the  federal Constitution,

are creatures  of state law"),  not every transgression  of state

law  does  double  duty  as  a  constitutional  violation.    The

Constitution  is a  charter  of carefully  enumerated rights  and

responsibilities,  defining the  relationship between  the people

and  a government of limited  powers.  Its  scope and application

are necessarily determined by its own terms.  Though grand in its

design and eloquent in  its phrasing, the Constitution is  not an

empty  ledger  awaiting  the  entry of  an  aggrieved  litigant's

recitation  of  alleged state  law  violations    no  matter  how

egregious  those violations  may  appear within  the local  legal

framework.8

          Moreover, while  the plaintiff states that section 1003

creates a constitutionally protected "entitlement" under Board of                                                                           

Regents v. Roth, 408 U.S. 564, 576-77 (1972), he does not develop                         

the thesis   and we do not see  how Roth applies.  Neither Roth's                                                                         

focus  nor its procedural design bears any similarity to the case

at  hand.   For  one  thing, the  Roth  Court's  conception of  a                                                

cognizable constitutional  entitlement  was limited  to  property

interests.    See id.  (citing Goldberg  v.  Kelly, 397  U.S. 254                                                            

(1970)).  We  fail to  intuit how Roth  supports the  plaintiff's                                                

                                                  

     8The absence of a constitutional duty to intervene in no way                                               
detracts from the callous nature of the conduct attributed to the
officers in this case,  nor does it imply that  onlooker officers
confronted by  private violence may not have  a state law duty to
intervene.   That question, quite simply, lies beyond the borders
of this opinion.

                                22

claim that he had an entitlement, pursuant to section 1003, to be

protected  in  his  physical  person.   For  another  thing,  the

remedial framework contemplated by Roth   procedural due process,                                                 

principally in the form of notice and a hearing, see id. at 577                                                                    

has no applicability at all to Martinez'  remonstrance.  Whatever

other  uncertainties  may  plague this  case,  it  is  clear that

Martinez is claiming a  substantive due process violation,  not a                                             

procedural due process violation.  See, e.g., Amsden, 904 F.2d at                                                              

753-54 (delineating differences).

          In  sum, Roth is a round hole, and Martinez' square peg                                 

of a case does not fit within it.

          2.   Equal Protection.   The plaintiff  makes the  bold                    2.   Equal Protection.                                         

assertion  that he  was denied  rights secured  to him  under the

Equal Protection Clause because, were  he a private citizen,  the

defendants  would almost certainly have  come to his  rescue.  He

does  not embellish this ipse  dixit in any  way.9  Consequently,                                              

it  does not assist  his cause.   "It is settled  in this circuit

that  issues  adverted to  on  appeal  in a  perfunctory  manner,

unaccompanied by some developed argumentation, are deemed to have

been abandoned."   Ryan v. Royal  Ins. Co. of Am.,  916 F.2d 731,                                                           

734 (1st Cir. 1990); accord United States v. Zannino, 895 F.2d 1,                                                              
                                                  

     9This criticism  rests neither  on the economy  of Martinez'
asseveration nor  on its  potential incoherence, but,  rather, on
the  utter lack of any  legal foundation provided  for the claim;                                       
Martinez  makes  reference  to  no constitutional  provision,  no
statute, no case law, no treatise, not even a law review article.
Parties  to   legal  controversies  must  do   more  than  allege
unsupported  facts to survive summary judgment;  they must at the
very  least explain the basis for, and the legal significance of,
those facts.

                                23

17 (1st Cir.),  cert. denied,  494 U.S. 1082  (1990); Collins  v.                                                                       

Marina-Martinez, 894 F.2d 474, 481 n.9 (1st Cir. 1990).  So it is                         

here:   the  plaintiff's fleeting  reference to  equal protection

does not succeed in preserving the issue for review.10

          3.   Supervisory  Liability.   Finally,  the  plaintiff                    3.   Supervisory  Liability.                                               

maintains that Trinidad, if  not liable under section 1983  as an

onlooker officer, may  be held  liable qua  shift supervisor  for                                                    

Valentin's  acts.   "Supervisory  liability  attaches  only if  a

plaintiff can  demonstrate by material of  evidentiary quality an

affirmative  link  between  the  supervisor's   conduct  and  the

underlying section 1983 violation."  Maldonado-Denis v. Castillo-                                                                           

Rodriguez,  23 F.3d  576, 583  (1st Cir.  1994); see  also Febus-                                                                           

Rodriguez  v. Betancourt-Lebron, 14 F.3d  87, 92 (1st Cir. 1994);                                         

Gutierrez-Rodriguez  v. Cartagena,  882 F.2d  553, 562  (1st Cir.                                           

1989).   Because no  underlying constitutional violation  in fact

occurred, see supra Part III(C), no  supervisory liability can be                             

                                                  

     10To the extent that  our dissenting colleague proposes that
the defendants'  nonintervention cannot be  deemed rational,  see                                                                           
post at pp. 30-31, this is merely another way of disagreeing with
our conclusion  that Valentin's conduct was  private, not public.
As  for  the larger  issue  of drawing  distinctions  between the
private and the public, we note simply that such distinctions are
regularly  and validly  drawn by  courts and  legislatures alike.
See, e.g., Westlands  Water Dist.  v. Amoco Chem.  Co., 953  F.2d                                                                
1109,  1113  (9th  Cir.  1991)  (finding  a  rational  basis  for
distinguishing between  public and private tortfeasors  in regard
to  recovery of  punitive damages); Southern  Cal. Edison  Co. v.                                                                        
United States, 415 F.2d  758, 760 (9th Cir.) (noting  that "under                       
the  equal  protection  clause  the  separate  classification  of
privately  and  publicly  owned  utilities  has  long  been  held
justifiable"), cert. denied,  396 U.S.  957 (1969).   It is  this                                     
very  distinction   public  versus private    that undergirds not
only DeShaney but also the Bill of Rights itself.                       

                                24

attributed to Trinidad under section 1983.11

IV.  CONCLUSION          IV.  CONCLUSION

          We need go no further.  Because the defendants' failure

to intervene and protect the plaintiff against Valentin's private

actions,  though regrettable,  cannot  be said  to have  violated

rights   secured  to   the   plaintiff  by   the  United   States

Constitution,  see DeShaney,  489  U.S. at  196-97, the  district                                     

court did not err  in summarily disposing of the  federal claims.

And, once the court determined so far in advance of trial that no

legitimate federal question existed, the jurisdictional basis for

plaintiff's pendent claims under Puerto Rico law evaporated.  See                                                                           

Brennan, 888 F.2d at 196.  Thus, the court properly dismissed the                 

balance of the complaint.12

Affirmed.          Affirmed.                  

                          Dissent follows  

                                                  

     11Moreover,  Trinidad was not  the supervisor  on Valentin's
shift  (during  which Martinez  was  shot), but,  rather,  on the
subsequent 4:00  a.m. to  12 noon  shift.  Thus,  it is  far from
clear that supervisory liability would be a  viable theory vis-a-
vis Trinidad even if an underlying constitutional violation could
be shown.

     12Of course,  the  dismissal operates  without prejudice  to
whatever  rights  plaintiff may  have  to  prosecute the  pendent
claims in the courts of  Puerto Rico.  See Feinstein v.  RTC, 942                                                                      
F.2d 34, 47 (1st Cir. 1991).

                                25

            BOWNES, Senior Circuit Judge, dissenting.   For the                      BOWNES, Senior Circuit Judge,                                                  

  reasons that follow, I  cannot join the majority opinion.   I

  start  with  the  facts.   Although  the  majority's  factual

  recitation  is  not  inaccurate,  it  is  not  a  full-bodied

  portrayal of what happened.

                                I.                                          I.

            Plaintiff, Martinez,  was a young (age  twenty) and

  comparatively new member of the Puerto Rico Police Force.  On

  the day of the events giving rise to this case, he arrived at

  the police station  sufficiently early to  be given his  duty

  assignment.   Martinez parked  his car in  the police parking

  lot.   He got out of  his car and started  towards the police

  station to get his orders for the day.  There were four other

  police officers in the  lot:  the defendants --  Colon, V lez

  and Trinidad -- and Valentin, who is not a defendant.  As the

  majority  acknowledges, the defendants  were, at all relevant

  times, on duty as  police officers and acting under  color of

  state  law.   The three  defendants observed the  events that

  took  place in  the parking  lot and  the police  station and

  heard Valentin's  denigrating remarks  to Martinez.   None of

  the defendants asked Valentin to stop his verbal and physical

  assaults  against Martinez.  To put it starkly, they stood by

  and  watched without protest  Valentin "blow away" Martinez's

  penis.

                                26

            As Martinez walked across the parking lot, Valentin

  said  to the defendants,  "Here comes Pretty  Boy."  Valentin

  then accosted Martinez, drew his service revolver, pointed it

  directly  at  Martinez's genital  area,  cocked  it, put  his

  finger on the trigger,  asked Martinez if he was  afraid, and

  then  lowered the revolver.  Martinez  told Valentin:  "Don't

  horse around with that  because you will kill me."   Martinez

  then  proceeded into the station  house.  A  short time later

  Valentin again  confronted Martinez; this time  he pushed his

  finger through a hole in Martinez's undershirt and ripped the

  shirt open.  The  record does not disclose whether  any words

  were  spoken  at this  juncture.    Martinez put  his  police

  uniform on  and reported  to his shift  supervisor, defendant

  Trinidad.

            A  short   time  later  Valentin   again  assaulted

  Martinez.     This   assault   was  similar   to  the   first

  confrontation,  but  with  an  ominous  threat.    This  time

  Valentin pushed  the muzzle of his loaded and cocked revolver

  into the front of  Martinez's pants  and threatened  to "blow

  away" Martinez's penis.   Valentin then asked Martinez  if he

  was  scared.   After Valentin  withdrew the  weapon, Martinez

  moved away from him.

            A short time later, within minutes,  Valentin again

  accosted Martinez.   He loaded  and cocked  his revolver  and

  then inserted  it into  the front  of Martinez's pants  while

                                27

  continuing to verbally  abuse him.   The  charade ended  when

  Valentin's  revolver  discharged.    Valentin's  prior threat

  became a reality; Martinez's penis was in fact blown away and

  he was rendered permanently impotent.

            The  majority  calls  the  shooting  accidental and

  says,  "All parties  agree  that  the  shooting  .  .  .  was

  unintentional."    Ante at  4.    Whether  the  shooting  was                                   

  accidental or not, it can  be concluded, based on  Valentin's

  words and actions, that it was an accident  that was bound to

  happen.  What Valentin did makes Russian roulette seem like a

  parlor game.

                               II.                                         II.

            The  majority's central  holding is  premised on  a

  ruling that Valentin was not acting under color of state law.

  In my view,  the facts taken  in the light most  favorable to

  plaintiff establish  that Valentin was acting  under color of

  state law.  

            As  the majority  points out:   "`[T]he traditional

  definition of acting under  color of state law  requires that

  the  defendant have  exercised power  possessed by  virtue of

  state law  and made  possible only  because the  wrongdoer is

  clothed  with the  authority  of the  state.'"   Ante  at  13                                                                 

  (quoting West  v. Atkins, 487  U.S. 42, 49  (1988)) (ellipses                                    

  and  internal quotation  marks omitted).   Simply  stated, "a

  person  acts under  color of  state law  `when he  abuses the

                                28

  position  given him by the  State.'"  Id.  (quoting West, 487                                                                    

  U.S. at 50).  I think that Valentin exercised power possessed

  by virtue of Puerto  Rico law and made possible  only because

  he was clothed with the authority of Puerto Rico, and that he

  abused that power.

            Even if  I disregard  the obvious --  that Valentin

  was in uniform, on duty, in the police station, and used  his

  service  revolver to commit  the tort (all  of which militate

  heavily  in  favor  of a  finding  that  Valentin  abused his

  position as a  police officer) --  I believe that  Valentin's

  status as a police officer was the only reason the defendants

  took  no action.  If Valentin  had been a private citizen and

  had  been  tormenting  Martinez   in  the  same  manner,  the

  bystander  officers certainly  would  have  intervened.   The

  record gives  rise to a reasonable  inference that Valentin's

  police-officer status led the bystander officers  to conclude

  that:   (1) Valentin was not mentally unbalanced to the point

  that he  might actually shoot  Martinez, but a  stable person

  only engaged in harassment or horseplay; and (2) Valentin was

  skilled  enough with firearms to be allowed to engage in this

  sort of stupidity.  Consequently, the record gives rise to an

  inference that Valentin's  police-officer status  was a  sine                                                                         

  qua non of  the bystander officers' non-intervention.   In my                   

  view,  this inference  establishes  that Valentin  was acting

  under color of state law. 

                                29

            The majority suggests  that Martinez's status as  a                                                            

  police  officer somehow reduced  the likelihood that Martinez

  perceived Valentin  to be acting  with the imprimatur  of the

  Commonwealth.  See  id. at 17  n.6.  I  believe the  opposite                                   

  conclusion is  at least  as likely  to be  true.   After  the

  bystander officers  (including Trinidad, who  had supervisory

  authority) failed  to intervene during the  initial rounds of

  abuse by  Valentin, Martinez  could well have  concluded that

  this  type of hazing of  young officers was  standard fare in

  the Loiza  Street Precinct.   Therefore, Martinez  could well

  have  believed that the Commonwealth acquiesced in Valentin's

  actions.

            Because Valentin  was acting  under color  of state

  law,  I think  it pellucid  that DeShaney  does not  bar this                                                     

  suit.    At most,  DeShaney  precludes  civil rights  actions                                       

  against state actors under the Due Process Clause for failing

  to protect an individual against  private violence.  See  489                                                                    

  U.S. at 197.  The DeShaney majority took pains to distinguish                                      

  the case before  it from situations  where the state  itself,

  through its own affirmative action prior to the complained-of

  non-intervention, limited the victim's  freedom.  Id. at 198-                                                                 

  201 (contrasting situations where the state has taken custody

  of   certain   individuals   and   thereby   incurred   "some

  responsibility for  [their] safety and  well-being").   Here,

  the  Commonwealth,  acting through  the  person of  Valentin,

                                30

  compromised Martinez's freedom by successively assaulting him

  three  times with a loaded  service revolver.   See West, 487                                                                    

  U.S. at  49.   In my  view, this  infringement was  more than

  sufficient  to support  Martinez's  substantive  due  process

  claim.   DeShaney, 489 U.S.  at 200 ("In  the substantive due                             

  process  analysis,  it  is  the State's  affirmative  act  of

  restraining the individual's freedom to act on his own behalf

  --  through  incarceration,  institutionalization,  or  other

  similar  restraint  of  personal  liberty  --  which  is  the

  `deprivation of  liberty' triggering the  protections of  the

  Due Process Clause.").   

            I believe it important to comment on three discrete

  parts of the  majority opinion.   The majority concedes  that

  Valentin's use  of his service revolver  might arguably bring

  his actions within the color of state law.  Ante at 16.  This                                                            

  is  then rejected on two grounds:   that it was not raised in

  the district court or plaintiff's appellate brief; and on the

  merits.  I cannot help but wonder why the straw man  approach

  was used.  In any event, I disagree on both grounds.

            Fairly   construed,    Martinez's   argument   that

  Valentin's status  as an  on-duty police  officer made  him a

  state actor incorporates the  argument that Valentin used the

  indicia  and  tools  of  his  trade  (including  his  service

  revolver) to  carry out the shooting.   For me,  this is more

  than enough to  allow us  to consider Valentin's  use of  his

                                31

  service  revolver as a factor in determining whether he was a

  state actor.

            I  am also  am troubled  by the  majority's finding

  that  Martinez waived his equal protection claim.  Id. at 22.                                                                  

  As an initial  matter, I think it important to state that the

  claim appears to have some substance.  How, after all, can it

  be rational  for bystander  officers not to  intervene simply

  because one  of their own --  as opposed to a  civilian -- is

  being   victimized  by  violence?     What  legitimate  state

  objective could such inaction serve?

            The majority  finds  that Martinez  abandoned  this

  claim because he failed to  "embellish" it sufficiently.  Id.                                                                         

  I do  not think that the  issue needed any  embellishing.  It

  was called  an equal  protection claim and  stated relatively

  clearly:  "If Wilfredo  had been a private citizen,  it seems

  clear that defendants-appellees would have realized that they

  were obliged under the law to protect  him from the threat of

  serious damages."  Appellant's Brief at 9.  In my view,  this

  was sufficient to put the claim in issue.

            Finally,  I  think  it   important  to  refute  the

  majority's  suggestion  that  Valentin might  not  have  been

  acting under color  of state law even if Martinez  had been a                                                    

  civilian.   Ante  at 17  n.6 ("Had  Martinez been  a civilian                            

  rather than a fellow  officer, the significance of Valentin's

  uniform   and  weapon   for  purposes  of   the  color-of-law

                                32

  determination  might  well  have  been  greater.")  (emphasis                                                  

  supplied).   I find the suggestion remarkable.  If a civilian

  had suffered the  abuse Martinez experienced at  the hands of

  an  on-duty,  uniformed  police  officer  using  his  service                                                                         

  revolver  in front  of other  officers in  a police  station,                                                                        

  well-settled  precedent  would  dictate a  finding  that  the

  civilian  was victimized under color of state law.  We should

  not even hint that this may not be so.

                               III.                                         III.

            I also cannot agree with the majority's  conclusion

  that  an  unargued  qualified  immunity  theory  provides  an

  alternative ground for affirmance  in this case.  See  id. at                                                                      

  18-20.

            Under the qualified immunity  doctrine, "government

  officials performing discretionary functions[]  generally are

  shielded from  liability for  civil damages insofar  as their

  conduct  does not  violate  clearly established  statutory or

  constitutional rights of which a reasonable person would have

  known."  Harlow v.  Fitzgerald, 457 U.S. 800, 818 (1982).  In                                          

  determining whether a right  was "clearly established" at the

  relevant  point  in  time,  courts must  analyze  it  at  the

  appropriate  level  of specificity.    Thus, a  right  is not

  "clearly established" for qualified immunity  purposes unless

  its  contours are  sufficiently clear  so "that  a reasonable

                                33

  official would understand that what he is doing violated that

  right."  Anderson v. Creighton, 483 U.S. 635, 640 (1987).                                          

            The majority suggests that Martinez's right to have

  the bystander  officers intervene on his  behalf was "cloaked

  in uncertainty" and was  "murky" at the time of  the relevant

  events.   I  disagree.   As  the  majority concedes,  it  was

  settled at the time of the events in this case that 

            [a]n officer who is present  at the scene
            [of  an  arrest]  and who  fails  to take
            reasonable steps to protect the victim of
            another officer's use of  excessive force
            can be held liable under section 1983 for
            his nonfeasance,  provided that he  had a
            realistic  opportunity   to  prevent  the
            other officer's actions.   

  Ante at  9 (citations and internal  quotation marks omitted).                

  In my view, this line of authority controls here.  

            The  majority  distinguishes   this  precedent   by

  suggesting  that it  is  inapplicable  where  the  tortfeasor

  officer is not acting under the  color of state law, and then

  concludes  that Valentin  was not  so acting  here.   For the

  reasons I have explained above (and despite the opinion of my

  esteemed  colleagues), I  do  not think  that an  objectively

  reasonable police officer could have seen Valentin's  actions

  as purely private.  And because Valentin was acting under the

  color  of  state  law,   the  aforementioned  authority   was

  sufficient to have informed defendants of their obligation to

  intervene  on Martinez's behalf.   See Anderson,  483 U.S. at                                                           

  640 ("This is not to say that an official action is protected

                                34

  by qualified immunity unless the very  action in question has

  previously been held unlawful, but  it is to say that  in the

  light   of  pre-existing   law   the  unlawfulness   must  be

  apparent.")  (citation omitted).   If excessive  force during

  the course of  a lawful arrest requires  intervention, so too

  should an  assault with a  deadly weapon taking  place during

  the  course of  an entirely  unlawful seizure.    I therefore                                                 

  disagree with the majority's qualified immunity analysis.

                               IV.                                         IV.

            Police  officers are entrusted with great powers --

  including the privileged use of force -- for the very purpose

  of preventing lawless violence.  When an officer abuses those

  powers in front  of his  peers, he in  effect presumes  their

  tacit  acquiescence,  if  not  outright approval.    In  this

  situation, the  other officers have a  constitutional duty to

  intervene.  I therefore respectfully dissent.

                                35
