
USCA1 Opinion

	




                            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 &               _____________              ______________      _____________          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  & 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 & 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
