          United States Court of Appeals
                     For the First Circuit

No. 11-1195


 NORMA MARRERO-RODRÍGUEZ, individually and in representation of
  her children C.L.M. and A.L.M.; C.L.M., minor; A.L.M., minor,

                     Plaintiffs, Appellants,

                               v.

     MUNICIPALITY OF SAN JUAN; HON. JORGE SANTINI-PADILLA, in his
official capacity as the elected mayor of the Municipality of San
   Juan; ANGEL A. PACHECO-ORTA, individually and as Lieutenant of
   the Municipal Police of San Juan; HILTON CORDERO, individually
    and as Commissioner of the Municipal Police of San Juan; ADAM
   ADORNO, individually and as the Operational Field Chief of the
    Municipal Police of San Juan; FÉLIX VEGA, individually and as
    Operational Field Sub-Director of the Municipal Police of San
  Juan; HELDER HADOCK, individually and as the Commanding Officer
  of Specialized Units of the Municipal Police of San Juan; JANET
 MATOS, individually and as the Administrative Director of Police
Training in the Municipality of San Juan; HARRY HERNÁNDEZ-MULERO,
 individually and as Captain of the Municipal Police of San Juan;
   SHERLY ALEJANDRO, individually and as Officer of the Municipal
Police of San Juan; JULIO A. SANTIAGO-RODRÍGUEZ, individually and
as Officer of the Municipal Police of San Juan; INSURANCE COMPANY
                       XYZ; JOHN DOE; JANE DOE,

                     Defendants, Appellants.



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

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
                Selya and Lipez, Circuit Judges.
           William Santiago-Sastre, with whom Alberto de Diego
Collar and Meléndez-Pérez, De Diego & Jiménez were on brief, for
appellants.
           Francisco    J.   Amundaray-Rodríguez    for   appellees
Municipality of San Juan, Jorge Santini-Padilla, and Hilton
Cordero.
           Michael Craig McCall, with whom Ivan M. Castro Ortiz and
Aldarondo & López Bras, P.S.C. were on brief, for appellee Angel A.
Pacheco-Orta.
           Angel A. Valencia-Aponte for appellee Julio A. Santiago-
Rodríguez.
           Jorge R. Quintana-Lajara and Antonio Montalvo-Nazario on
brief for appellees Adam Adorno, Helder Hadock, Harry Hernández-
Mulero, and Sherly Alejandro.
           Miriam González Olivencia on brief for appellees Félix
Vega and Janet Matos.



                           May 7, 2012
           LYNCH, Chief Judge. This civil rights case brought under

42 U.S.C. § 1983 was dismissed for failure to meet the pleading

standards under Ashcroft v. Iqbal, 556 U.S. 662 (2009).           As to the

Fourteenth Amendment claims, we affirm the dismissal of the claims

against the Municipality of San Juan and the Mayor, and we reverse

the dismissal of these claims as to the remaining individual

defendants who were directly involved or had responsibility for the

training which resulted in the death of an officer. The Fourth and

Eighth   Amendment   claims   were    properly   dismissed   as    to   all

defendants.

           The basic standards under Iqbal are taken from our recent

opinion in Air Sunshine, Inc. v. Carl, 663 F.3d 27, 33 (1st Cir.

2011):

           The complaint "must contain sufficient factual
           matter, accepted as true, to 'state a claim to
           relief that is plausible on its face.'"
           [Iqbal, 556 U.S. at 678] (quoting Bell Atl.
           Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
           "A claim has facial plausibility when the
           plaintiff pleads factual content that allows
           the court to draw the reasonable inference
           that the defendant is liable for the
           misconduct alleged."    Id.    This is not a
           "probability requirement," but it does require
           "more than a sheer possibility that a
           defendant acted unlawfully." Id.

           All well-pleaded facts are to be taken as true and we

draw all reasonable inferences from the complaint in plaintiffs'

favor.   Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011).

The facts pled, and those inferences, are these.        Carlos Lozada-


                                     -3-
Vergara, a sergeant in the San Juan Municipal Police force,

underwent training at the police headquarters around 10:00 p.m. on

April 1, 2009. This training simulated the arrest of a suspect who

did not speak Spanish. Sgt. Lozada played the role of the arrested

suspect.

           Defendant   Lt.   Angel    A.   Pacheco-Orta     was   a   training

supervisor.     Defendant Officer Julio A. Santiago-Rodríguez, Lt.

Pacheco's subordinate, was initially in charge of this training.

Neither he nor Lt. Pacheco were certified instructors, nor were any

certified instructors present.

           The police facility in San Juan in which the training

took place is a place where all who entered were supposed to

discharge their weapons into a sandbox. This would ensure that all

the weapons were empty before they were carried into the facility.

But this requirement was not enforced.         Further, in this facility,

when "firearms" were needed for training, only "dummy guns," not

real firearms, were to be used.            This particular training was

supposed to have been conducted without firearms.

           Santiago    initially     was     the    highest-ranked     officer

involved and gave the order that bulletproof jackets not be worn

during   the   exercise.     Lt.   Pacheco    was    not   present    when   the

exercises involving Lozada started, but he came in while the

training was going on and took over.               Lt. Pacheco entered the

training facility with a weapon but without discharging the bullets


                                     -4-
in his firearm into the sandbox. Santiago permitted Lt. Pacheco to

enter the training area with a gun and a loaded gun at that.

           Higher level police training officials who should have

been present that day were not.       Nor did any of them take any steps

to prevent shootings from happening during such exercises, either

in writing or orally, through protocols, training, or appropriate

cautionary measures.

           Lozada, who continued to play the role of a suspect, had

been subdued; in fact, he was flat on the ground, face down, while

another officer held him down by his back.          Lt. Pacheco, having

just arrived, said the training was not being done "properly." The

other officer holding down Lozada got up and Lt. Pacheco positioned

himself on Lozada's back to do the training "properly."               Lt.

Pacheco had Lozada completely under control, on the ground face

down; Lozada was motionless and obedient.

           Without any form of warning and as part of "proper"

training, Lt. Pacheco pulled out his weapon, put the barrel to

Lozada's back, and pulled the trigger.       The weapon was not empty.

The bullet pierced Lozada's back and came out through his chest.

Lozada was taken to a hospital where he died five days later from

his bullet wound.

           Lozada left his wife, Norma Marrero-Rodríguez, and two

young sons, who are the plaintiffs.         They make claims under the

Fourth   Amendment,    the   Eighth    Amendment,   and   the   Fourteenth


                                      -5-
Amendment's Due Process Clause, as well as under Puerto Rico law.

Lt. Pacheco and Santiago, who were directly involved, of course,

are the first group of defendants.          The complaint names a second

group,   supervisory    police     officials   who     had   some    form    of

responsibility for the training. There is a third group, the Mayor

and the Municipality.

          Plaintiffs    do   not   assert    that    Lt.   Pacheco   murdered

Lozada. They do claim that the actions and inactions of the police

around this exercise and the use of a loaded firearm in these

circumstances shock the conscience, and that the defendants were

callously and recklessly deficient in the lack of any care for the

safety of Lozada.   These claims meet the pleading standards as to

certain claims against certain defendants.

          Plaintiff's purported Fourth Amendment claim fails to

meet the pleading standards of Iqbal.          It was not even pled as a

claim, but only mentioned on the first page of the complaint.               See

Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533-34 (1st

Cir. 2011).   As to the Eighth Amendment claim, we agree with the

district court that the elements of such a claim are not present

here; this case does not involve a formal adjudication of guilt or

a criminal prosecution against Lozada. See City of Revere v. Mass.

Gen. Hosp., 463 U.S. 239, 244 (1983).

          However, many of the elements of a § 1983 claim alleging

Fourteenth Amendment violations are unquestionably present as to


                                    -6-
some defendants. There is no doubt that the defendants were acting

under color of Puerto Rico law or authority. See 42 U.S.C. § 1983.

There is also no doubt that the life of Lozada is one of the

interests protected by the Fourteenth Amendment's Due Process

Clause.    See U.S. Const. amend. XIV, § 1.

            The individual defendants who held the positions of

Lieutenant of the Municipal Police, Commissioner of the Municipal

Police, Operational Field Chief, Operation Field Sub-Director,

Commanding Officer of Specialized Units, Administrative Director of

Police     Training,   Captain       of     the     Municipal     Police,      and/or

Instructors are all, on the pleadings, charged with responsibility

for police training and the training that day.                   By contrast, the

Municipality is pled to be liable merely because it employs the

individual defendants and because it did not have sufficient

training regulations in place, and the Mayor is said to be liable

because he is Mayor.

            As to the Fourteenth Amendment claim, we have recognized

there may be substantive due process theories of recovery which

"turn on whether the alleged misconduct 'shocks the conscience.'"

Maldonado v. Fontanes, 568 F.3d 263, 272 (1st Cir. 2009); see also

Espinoza    v.   Sabol,   558    F.3d      83,     87   (1st    Cir.   2009)    ("The

substantive component of the Due Process Clause is violated by

executive    action    'when    it   can        properly   be   characterized      as




                                          -7-
arbitrary, or conscience shocking, in a constitutional sense.'"

(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998))).

            While    it   is    true     that    "negligent     conduct   is

'categorically      beneath    the   threshold    of    constitutional    due

process,'" it is also true that "'behavior at the other end of the

culpability spectrum,' i.e., 'conduct intended to injure in some

way unjustifiable by any government interest,' is most likely to

support a substantive due process claim.               When the culpability

resulting in injury falls somewhere between these extremes, it is

'a matter for closer calls,' and whether conduct is actionable as

a due process violation will depend upon the context in which it

occurs."    Cummings v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001)

(quoting Lewis, 523 U.S. at 849) (citations omitted).

            Still, "it is also true that the Supreme Court has been

firm in its reluctance to expand the doctrine of substantive due

process."   Maldonado, 568 F.3d at 273 (citing Chavez v. Martinez,

538 U.S. 760, 775 (2003)).           As a result, "the official conduct

'most likely to rise to the conscience-shocking level' is 'conduct

intended to injure in some way unjustifiable by any government

interest.'"   Id. (quoting Chavez, 538 U.S. at 775).

            From these facts a number of inferences may be drawn in

favor of plaintiffs' Fourteenth Amendment claim.              The conduct of

shooting in the back a participant in a training exercise was

certainly likely to injure.          It is plausible that no reasonable


                                      -8-
government interest in this training exercise justified a police

officer taking out a firearm and placing it to the unprotected back

of a prone officer, who was face down, motionless, under control,

and unarmed.     Further, it is plausibly shocking that Santiago, the

co-supervisor of the training, did nothing to intervene when Lt.

Pacheco placed the gun to Lozada's back.

              Moreover, this was done by the highest-ranking supervisor

present,   as    part   of     a   training    program.      Lt.   Pacheco,     that

supervisor, did not discharge his weapon before entering the

facility and did not go through the required checkpoint, in

violation of several training protocols.                  Moreover, Lt. Pacheco

said that it was not proper training to merely subdue and control

a suspect.     Rather, he illustrated "proper" training by using what

was   obviously      lethal    force,    entirely    disproportionate      to   any

reasonable need, in conducting the lesson.                  The inference can be

drawn that the instruction given by Lt. Pacheco as "proper" in this

type of situation was shockingly indifferent to the rights of the

subdued "suspects."         These factual allegations may not prove to be

true;   but     at   this     stage,    all    inferences    are   drawn   in    the

plaintiffs' favor. In short, as to the defendant officers directly

involved, Lt. Pacheco and Santiago, the facts are sufficiently

pled.

              As to the police defendants not present that day, but

with direct responsibility for training, the question is closer.


                                         -9-
The complaint can, if read generously, be read to say they are not

being sued merely because they are supervisors who engaged in no

misconduct    themselves,   but   because   they   each   had   direct

responsibility for the conduct of training exercises and had some

active involvement in the structuring of the lethal training

exercise that day, and that at least some should have been there

that day.    Other inferences may also be drawn -- their failure to

implement policies, protocols, or correct training about use of

live firearms and preventing deaths in such exercises from the

police defendants was itself so lacking in justification as to be

shocking to the conscience.

            This is slightly more than was pled in Soto-Torres v.

Fraticelli, 654 F.3d 153 (1st Cir. 2011), and Peñalbert-Rosa v.

Fortuño-Burset, 631 F.3d 592 (1st Cir. 2011), where we found the

pleadings insufficient.     At this early stage we are reluctant to

dismiss.     The role of these defendants can be made clearer in

discovery and nothing precludes later efforts to end the case

against them should discovery not substantiate these inferences.

            It takes more than this, though, to assert a § 1983 claim

against those who have no personal involvement of any sort in the

events, such as the Mayor, and more to assert a claim against the

Municipality.    The Mayor is not amenable to suit, as pled in the

complaint, merely because he is Mayor. Nor may the Municipality be

sued under § 1983, as pled, on a respondeat superior theory that it


                                  -10-
is liable because it employs the individual defendants. See Bd. of

Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dep't

of Soc. Servs., 436 U.S. 658, 691-95 (1978).         Moreover, to state a

claim for municipal liability, a plaintiff must plead more than

mere insufficiency of a municipality's training program.                  "[A]

training   program   must   be   quite   deficient    in    order   for    the

deliberate indifference standard to be met: the fact that training

is imperfect or not in the precise form a plaintiff would prefer is

insufficient to make such a showing."      Young v. City of Providence

ex rel. Napolitano, 404 F.3d 4, 27 (1st Cir. 2005).

           In this case, although the complaint alleges that there

were insufficient regulations in place to govern the training

exercise, it also describes several safety procedures that were

intended to prevent exactly this type of accident.           In particular,

it states that: (1) before entering the training area, officers

were to discharge their weapons in a sandbox; (2) in the training

facility, officers were only to use only "dummy guns"; and (3) at

this particular training, no firearms were to be used.                    As a

result, no plausible claim of municipal liability based on lack of

any safety procedures is stated.

           The facts as alleged may turn out not to be so.           It may

be that this shooting was a horrid accident brought about by the

inexplicable actions of one man, Lt. Pacheco.              But we think the

Fourteenth Amendment pleadings, as inartful as they are, point to


                                  -11-
sufficiently plausible theories of violation to survive dismissal

at this stage, save as to the Mayor and the Municipality.

            The dismissal of the Fourteenth Amendment claims against

the Mayor and the Municipality is affirmed; dismissal of the

Fourteenth Amendment claims as to the remaining defendants is

reversed.    We affirm dismissal of the Fourth and Eighth Amendment

claims as to all defendants.       On remand, the district court may

wish   to   reconsider   its   dismissal   without   prejudice   of   the

plaintiffs' claims arising under Puerto Rico law against the

remaining federal defendants.     No costs are awarded.




                                  -12-
