Evelyn RAMÍREZ-LLUVERAS; Jenitza Cáceres, represented by Evelyn Ramírez-Lluveras; M.C., represented by Evelyn Ramírez-Lluveras; M.A.C., represented by Evelyn Ramírez-Lluveras, Plaintiffs, Appellees/Cross-Appellants, v. Edwin RIVERA-MERCED; Pedro Toledo-Dávila; Lieutenant Víctor Cruz-Sánchez; Sergeant Rafael Figueroa-Solís; Sergeant Juan Colón-Báez, Defendants, Appellants/Cross-Appellees, Javier Pagán-Cruz; Carlos Sustache-Sustache; Zulma Díaz; Miguel Vázquez-San Antonio; John Does A-Z, Rep. Employees, Contractors, or Agents of the P.R. Police Department, Defendants.
Nos. 11-2339, 13-1169
United States Court of Appeals, First Circuit
July 14, 2014
Judith Berkan, with whom Mary Jo Méndez and Berkan/Méndez were on brief, for appellees/cross-appellants.
Before LYNCH, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
This tragic case arises out of the unwarranted shooting death of a civilian, Miguel A. Cáceres-Cruz, in Puerto Rico by an on-duty police officer, Javier Pagán-Cruz. Plaintiffs, the victim‘s surviving wife and children, sued Pagán, his two fellow officers on the scene, and five supervisors under
The case now reaches us on two appeals: the plaintiffs’ appeal from the district court‘s grant of summary judgment in favor of the supervisory defendants (No. 13-1169) and the supervisory defendants’ appeal from the district court‘s earlier denial of their
I.
We briefly describe the procedural history before turning to the facts of the case. On April 28, 2008, the plaintiffs filed suit under
On April 20, 2010, the supervisory defendants filed a “Motion to Dismiss Amended Complaint and/or for Judgment on the Pleadings” under
The district court granted the motion in part and denied it in part on September 30, 2011. Specifically, the court dismissed all of the plaintiffs’
On December 22, 2011, the district court granted the supervisory defendants’ motion for summary judgment. This left the claims against the line officers, Pagán, Sustache, and Díaz.
The claims against the line officers went to trial before a jury in late October 2012. On November 9, 2012, the jury reached a verdict in favor of the plaintiffs against all three line officers. After entry of final judgment, the plaintiffs appealed the grant of summary judgment in favor of the supervisory defendants.4 The two appeals were consolidated.
II.
The following facts are undisputed, except where noted. To the extent the facts are disputed, we take them in the light most favorable to the plaintiffs for purposes of the supervisory defendants’ motion for summary judgment. See Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir.2008).
A. The August 11, 2007 Shooting
Miguel A. Cáceres-Cruz (“Cáceres“), the victim, was a member of the Punta Santiago Scooter Club. On the evening of August 11, 2007, around 6:10 p.m., roughly eleven members of the Club brought their scooters to a house for a quinceañero5 at which they were to serve аs an escort for the fifteen-year-old birthday girl. With the scooters parked on the street, two-way traffic was obstructed, so Cáceres helped direct cars around the parked scooters.
One of the cars caught in the traffic was a PRPD Ford Explorer in which officers Pagán, Sustache, and Díaz were riding. The officers were not assigned to a patrol in this area, Punta Santiago, but instead were passing through on their way to a different area, Naguabo, to which they were assigned to combat drug trafficking. They did not have any directions to engage in any actions in Punta Santiago. In fact, the officers passed through Punta Santiago only because they chose to take a different route to Naguabo than they had been instructed to take after picking up Officer Díaz, who had been late for her shift.
When Pagán reached Cáceres‘s position, he told Cáceres that only the police have the authority to direct traffic. He also ordered the club members to move their scooters off the road within five minutes. What happened next is not entirely clear, although both parties agree with the general outlines. There is a dispute over whether the club members actually began
From the ground, Cáceres reached up and touched Pagán‘s gun holster; the parties dispute whether he was simply reaching for Pagán‘s leg while he was trying to stand or whether he was continuing the fight. Pagán placed his hand on top of Cáceres‘s and the two struggled over the gun. Eventually, the gun, still holstered on Pagán, went off and shot Pagán in his leg. Pagán pulled away from Cáceres, who slumped from a sitting position to lying with his stomach on the ground. While Cáceres was still on the ground, Pagán drew his gun and shot Cáceres multiple times in the back. After a pause, Pagán shot Cáceres one final time, this time in the head, administering a coup de grâce. Cáceres died from the shooting. He was 43 years old at the time. Pagán was 33 years old, and a 13-year veteran of the PRPD.
The officers retreated to their car and left the scene. Díaz then used the police radio to inform a dispatcher that Pagán was bleeding profusely. She did not mention the shooting of Cáceres.
There are later events which the plaintiffs discuss at length as evidence of an alleged cover-up of the shooting. Specifically, the plaintiffs explain that some of the supervisory defendants represented to the media that Pagán had clearly been acting to defend himself against Cáceres‘s unprovoked aggression. However, the plaintiffs do not explain how any alleged cover-up after the shooting would be relevant to their claims, which are based on a wrongful death theory, since any alleged cover-up would have occurred after Cáceres had already died. We do not discuss the cover-up theory. Pagán was dismissed from the PRPD on June 4, 2008.
B. Pagán‘s Disciplinary History
The plaintiffs’ theories of liability against the supervisory defendants rely heavily on the proposition that Pagán‘s disciplinary history provided adequate warning to his supervisors that he was at substantial risk of committing an unjustified shooting of an arrestee as an armed officer, and that the supervisors were deliberately indifferent to this risk. The plaintiffs then assert theories that various policies and procedures interfered with the defendants’ taking appropriate actions on those risks.
Pagán had been the subject of seven disciplinary complaints before the August 11, 2007 shooting. The first complaint, in 1998, was for theft of government property (which he had left in the trunk of his personal vehicle), for which he received a warning.
The second complaint, and of most significance to this case, was a set of 1999 domestic violence allegations described in the official record as follows: “The complainant alleged that after [complainant] entered into a romantic relationship with [Pagán] he attacked her because he saw her talking with another officer and he
The third complaint was a 1999 insubordination charge, which was pending at the time Pagán was dismissed from the PRPD after the August 11, 2007 shooting and was filed for future reference as a result. A fourth complaint was filed in 2002 for Pagán‘s failure to appear in a local court after being subpoenaed. Later in 2002, there was a fifth complaint about reporting a “loss” in a stolen and recovered vehicle report. Sixth, in 2003, Pagán was charged with failing to take action on a complaint filed by a citizen; the charge was filed in the record. Finally, in 2004, there was a complaint for assaulting a motorcyclist, about which there are no other details in the record. The charge was also filed in the record.
We return to the domestic violence complaint, which was considered “substantiated” after the initial investigation, and on which the plaintiffs’ case largely rests. The domestic violence complaint was based on three incidents beginning in August 1998 involving Pagán‘s then-girlfriend: (1) in August 1998, after Pagán saw his girlfriend speaking with another police officer, the girlfriend alleged that Pagán slapped her, pointed his official firearm at her, and threatened to kill her if he saw her with another man; (2) later, the girlfriend also alleged that after she and Pagán had broken up and she sent Pagán a bill for a
beeper she had bought him as a gift, he “burst” into her home and told her, “Who the hell asked you to send the beeper and the bill with Officer Sammy Torres,” which upset her; and (3) later, the girlfriend added the claim that at some earlier time in 1998, Pagán had stored in her home an arrestee‘s firearm for three days before removing it and taking it to the Firearms Division, and that he “swore that he was going to kill the arrestee.” (Pagán did not kill the arrestee, nor did he take any steps toward doing so.)
The PRPD promptly investigated the girlfriend‘s complaint. On the same day the complaint was filed, the supervisor on duty interviewed the complainant, went to the District Attorney, who decided there was no basis to file criminal charges against Pagán, and notified the PRPD Juncos District Commander of the administrative complaint. Two days later, a memo was sent from the Juncos District Commander to the Humacao Area Commander submitting the domestic violence complaint for consideration. It described the complaint as follows:
The claimant alleges that she had an intimate consensual relationship with [Pagán] for several months. That, during the month of August and on September 29, 1998, she was psychologically and verbally abused through threats made by the same, which would make her worry.
The memo repeated that the District Attorney had declined to file charges since he believed no domestic violence in violation of Puerto Rico law had been committed. The memo also stated that Pagán‘s police-issued firearm had been seized and he had been referred to the Domestic Violence Division in compliance with PRPD guidelines.
As to the Domestic Violence Division, on December 17, 1998, the Director of the
As of August 2000, the PRPD conducted a formal administrative investigation into the domestic abuse charges. Sgt. José Berríos Díaz documented his investigation in an August 23, 2000 memo to the Assistant Superintendent responsible for administrative investigations. The memo charaсterized the complainant as being the “victim of verbal and psychological abuse through threats made by [Pagán].” Evelyn Velázquez, a friend of the complainant, was interviewed and stated Pagán had “verbally insulted” the complainant and had threatened the complainant with death, but that the complainant had never told her that Pagán ever “physically assaulted her.” Velázquez also confirmed that Charlie, the arrestee whose gun had been kept temporarily at the complainant‘s house, had made threats against Pagán. Velázquez also said that while with Pagán and the complainant, Velázquez had once “playfully” taken Pagán‘s gun and pointed it at him, “also playfully,” so that he “would learn” what his girlfriend felt when he had threatened her.
The report stated that “Pagán was interviewed and stated that what was being said was not true.” The investigative report concluded that Pagán had committed four serious violations of PRPD standards of conduct.6
Based upon this report, then-Superintendent Agustín Cartagena Díaz wrote to Pagán on August 30, 2004, informing him of the results of the investigation. Based on the girlfriend‘s allegations, the letter expressed an intent to expel Pagán from the PRPD. The letter notified Pagán of his right to a hearing on the issue.
Pagán requested a hearing, which was held оn October 8, 2005. After the hearing, an Associate Police Superintendent, signing on behalf of Police Superintendent Pedro Toledo-Dávila, informed Pagán by a letter dated May 18, 2006 that the proposed expulsion would be converted to a 60-day suspension without pay. Importantly, the May 18, 2006 letter stated: “After evaluating the record we have determined that the sanction announced in the Resolution of Charges must be modified. In consequence I suspend you from employment and pay for the term of sixty (60) days effective on the date of notification for this communication” (emphasis added).
Pagán apparently did not appeal that decision. Pagán served the suspension without pay between August and October 2006. This was eight years after the underlying domestic abuse events had occurred. It was one year before the shooting. There were no other domestic violence charges aside from those arising out of the events in 1998.
C. The Identity and Role of the Supervisory Defendants
The plaintiffs originally sued Col. Edwin Rivera-Merced, Humacao Area Commander, as thе supervisor of the three line officers. The plaintiffs later added another four supervisors at various levels in the Puerto Rico police department: Superintendent Pedro Toledo-Dávila, Lt. Víctor Cruz-Sánchez, Sgt. Rafael Figueroa-Solís, and Sgt. Juan Colón-Báez.
On the date of the shooting in August 2007, the chain of command above Pagán was as follows. Sgt. Colón-Báez was serving as Acting Director of the TOD while Sgt. Figueroa-Solís, its regular Acting Director at the time, was on vacation. In that temporary position, Sgt. Colón-Báez had Pagán and another thirty or so officers in the TOD under his supervision. Sgt. Colón-Báez was in turn supervised by Lt. Cruz-Sánchez, the officer in charge of the Humacao area. He reported to Col. Rivera-Merced, the Humacao Area Commander who oversaw 400 to 500 officers, and Col. Rivera-Merced reported to Superintendent Toledo-Dávila, who was the highest ranking officer in the entire PRPD.
1. Superintendent Toledo-Dávila
Toledo-Dávila, now deceased, was the Police Superintendent of the PRPD at the time of the shooting, serving from 1993 to 2000 and again from 2005 to 2008. This is
the highest position in the PRPD, which had thousands of officers in its service.
The plaintiffs alleged that Superintendent Toledo-Dávila instituted policies making it difficult for lower-level supervisors to become aware of officers’ offenses by removing the facts about the offenses from their disciplinary memoranda. As to personal supervisory involvement with Pagán, Toledo-Dávila was the superintendent who set Pagán‘s sanction for the domestic violence complaint at a 60-day suspension in 2006 after the hearing, a lighter punishment than the initial pre-hearing recommendation of expulsion. Superintendent Toledo-Dávila is not alleged to have had any direct involvement with, or even direct supervisory responsibility over, Pagán‘s actions on August 11, 2007.
2. Col. Rivera-Merced
Col. Rivera-Merced was the Area Commander of the Humacao area, which is where Pagán served on the day of the shooting. In that role, Col. Rivera-Merced oversaw about 400 to 500 police officers. The plaintiffs claim that Col. Rivera-Merced knew about Pagán‘s 2006 suspension because he had personally “processed” it, and that he was responsible for assigning Pagán to the TOD. Col. Rivera-Merced also had the authority to refer officers under him to counseling and to receive fitness-for-duty recommendations. The plaintiffs’ primary allegation against Col. Rivera-Merced is that upon Pagán‘s return from the 2006 suspension, he immediately placed Pagán back into the “elite” TOD without meaningfully considеring Pagán‘s fitness for that unit.7 The plaintiffs also argue that Col. Rivera-Merced failed to assign an adequate number of supervisors to the TOD. There is no claim that
3. Lt. Cruz-Sánchez
Lt. Cruz-Sánchez was the Director of the TOD in Humacao through March 2007, when he was elevated to Commander of the Humacao precinct. In his role as TOD Director, Lt. Cruz-Sánchez oversaw about 30 officers. Lt. Cruz-Sánchez evaluated Pagán a few months after his return from the suspension and “gave him glowing ratings.” These high ratings may have been given in part because he gave all of his subordinates high ratings and pro forma evaluations.
The plaintiffs allege Lt. Cruz-Sánchez was directly responsible for selecting line officer Díaz for the TOD and did so without reviewing her personnel file. But there is no claim that had he reviewed the file, Lt. Cruz-Sánchez would have had reason to believe Officer Díaz would pose a substantial risk to civilians; moreover, Díaz was not the shooter. Lt. Cruz-Sánchez also had direct knowledge of Pagán‘s suspension but did not know its cause; he later testified that he thought Pagán hаd been suspended for mishandling an investigation. There is no claim that Lt. Cruz-Sánchez was directly supervising Pagán at the time of the shooting.
4. Sgt. Figueroa-Solis
Sgt. Figueroa-Solis was a supervisor in the TOD and was promoted to Acting Director in March 2007 after Lt. Cruz-Sánchez‘s promotion to precinct commander. There were no other ranked supervisors in the TOD while Sgt. Figueroa-Solis
was Acting Director. Sgt. Figueroa-Solis went on vacation in July and August 2007 and was out of town on the date of the shooting; during that time, Sgt. Colón-Báez served as Acting Director. The plaintiffs allege that Sgt. Figueroa-Solis did not review the disciplinary files of his subordinates—arguably against department requirements, although his status as “Acting” Director makes the precise requirement unclear. He also did not review Pagán‘s record when Pagán entered the TOD; the plaintiffs allege it is reasonably clear that he would have been expected to do so to make sure that the new officer was fit for the assignment. Sgt. Figueroa-Solis was the individual who notified Pagán about his proposed expulsion in 2004, but he was not familiar with the complaint underlying the proposal. He was also responsible along with Sgt. Colón-Báez for choosing Sustache and Pagán for the Impact Unit within the TOD. Because he was on vacation on August 11, 2007, Sgt. Figueroa-Solis wаs not directly supervising Pagán at the time of the shooting.
5. Sgt. Colón-Báez
Finally, Sgt. Colón-Báez was Lt. Cruz-Sánchez‘s assistant while the latter was director of the TOD. He remained Lt. Cruz-Sánchez‘s assistant upon Lt. Cruz-Sánchez‘s promotion to precinct commander in early 2007, but returned to the TOD as Acting Director while Sgt. Figueroa-Solis was on vacation in July and August of 2007. He shared responsibility with Sgt. Figueroa-Solis for placing Sustache and Pagán on the Impact Unit. Sgt. Colón-Báez was the person who actually served Pagán with his suspension notice in 2006. He was aware that the suspension was related to domestic violence but made no further inquiries.8 Sgt. Colón-Báez
III.
We begin with the plaintiffs’ appeal of the grant of summary judgment in favor of the supervisory defendants. We review the district court‘s grant of summary judgment de novo, reading the facts and drawing all inferences in the light most favorable to the plaintiffs. See Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir.2008). Summary judgment is proper if there is no genuine dispute of material fact and the defendants are entitled to judgment as a matter of law.
A. Supervisory Liability Under § 1983
The defendants strongly urge that this case be used as a vehicle to reсast the contours of supervisory liability in the aftermath of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We see no reason to do so or to address what is a hypothetical argument. The plaintiffs’ case against the supervisors simply is insufficient to meet this circuit‘s standards as articulated before and reinforced after Iqbal.
There are a number of clear rules governing supervisory liability under
is a jury verdict establishing Pagán‘s and the other two officers’ violation of constitutional rights.
Additionally, the tort theory of respondeat superior does not allow imposition of supervisory liability under
After Iqbal, as before, we have stressed the importance of showing a strong causal connection between the supervisor‘s conduct and the constitutional violation. See Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir.2011) (“[A] supervisor may not be held liable for the constitutional violations committed by his or her subordinates, unless there is an affirmative link between the behavior of a subordinate and the action or inaction of the supervisor ... such that the supervisor‘s conduct led inexorably to the constitutional violation.” (alterations in original) (quoting Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir.2011)) (internal quotation marks omitted)). The showing of causation must be a strong one, as that requirement “contemplates proof that the supervisor‘s conduct led inexorably to the constitutional violation.” Hegarty v. Som-
In addition, the supervisor must have notice of the unconstitutional condition said to lead to the claim. Feliciano-Hernández, 663 F.3d at 533 (“[T]he plaintiff must show that the official had actual or constructive notice of the constitutional violation.” (quoting Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 768 (1st Cir.2010)) (internal quotation marks omitted)); id. at 535 (“Actual or constructive knowledge of a rights violation is a prerequisite for stating any claim.“).
A plaintiff may prove causation by showing a “known history of widespread abuse sufficient to alert a supervisor to ongoing violations.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994). However, proof of that sort must truly show “widespread” abuse; “isolated instances of unconstitutional activity ordinarily are insufficient ... to show deliberate indifference.” Id.
Turning from causation to what it means to be deliberately indifferent, we have typically formulated the deliberate indifference inquiry as a three-part test that requires plaintiffs to show: (1) “that the officials had knowledge of facts,” from which (2) “the official[s] can draw the inference” (3) “that a substantial risk of serious harm exists.” Ruiz-Rosa v. Rullán, 485 F.3d 150, 157 (1st Cir.2007) (alteration in original) (quoting Calderon-Ortiz v. LaBoy-Alvarado, 300 F.3d 60, 65 (1st Cir.2002)) (internal quotation marks omit-
ted); see also Bowen v. City of Manchester, 966 F.2d 13, 17 (1st Cir.1992).
B. Application of Supervisory Liability Standards
The strongest of the plaintiffs’ arguments depends on the theory that Pagán‘s disciplinary record, especially as to the substantiated complaints of domestic violence, should have led the supervisory defendants to have knowledge of facts from which they would have inferred that Pagán posed a substantial risk of doing serious harm to others. This should have prompted them to take action, other than what they did do, to prevent such harm. The plaintiffs also build on this central claim by alleging that various defendants were deliberately indifferent to the PRPD‘s inadequate procedures for reviewing and disseminating disciplinary records. If Pagán‘s disciplinary record was insufficient on causation—that is, if it was not sufficient to put the supervisory defendants on notice of substantial risk of serious harm to others—then these allegations about inadequate procedures are beside the point.
The plaintiffs also make some weak claims unrelated to Pagán‘s disciplinary record. They allege there were insufficient procedures for reviewing officer-involved shootings. But, as the plaintiffs’ expert explained, neither Pagán nor the two other officers at the scene had shot anyone before and so the causal link fails.9
1. Claimed Deliberate Indifference to Pagán‘s Disciplinary Record
Pagán‘s disciplinary record evidenced seven instances of alleged misconduct over a nearly fourteen-year period. That record was not sufficient to put supervisors on notice that he presented a “substantial,” “unusually serious,” or “grave risk” of shooting an arrestee. See Ruiz-Rosa, 485 F.3d at 157; Figueroa-Torres v. Toledo-Dávila, 232 F.3d 270, 279 (1st Cir.2000); Bowen, 966 F.2d at 17; accord Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.1998). Nor did it give notice he required discipline beyond that already given to him.
We do not discount the seriousness of the domestic violence allegations. We think the commission of these acts by Pagán against his girlfriend is indeed relevant to whether Pagán could be thought to pose a threat of violence to others when he was on official duty. We disagree with the proposition that private domestic abuse is not relevant to the risk of an officer abusing his public position with violence. Nonetheless, in light of all of the facts here, the causal connection the plaintiffs attempt to draw is insufficient as a matter of law to impose supervisory liability even on those supervisors who knew of the content of Pagán‘s disciplinary record, much less on those who did not know.
The domestic abuse events took place in 1998, nearly nine years before the shooting. The complaint about them was handled seriously by the PRPD. The PRPD
investigation found that Pagán had made verbal threats and made threats using his weapon, but did not find he had acted on those threats or inflicted physical harm on others, much less used his weapon to shoot anyone. Further, Pagán was promptly sent for evaluation by the Domestic Violence unit, his firearm was taken away, and he was suspended. Once Pagán and the complainant‘s relationship ended, there were no other domestic abuse complaints filed against Pagán. Importantly, while Toledo-Dávila had recommended termination based only on the pre-hearing allegations, that recommendation was not deemed suitable after Pagán was given a hearing. Indeed, Toledo-Dávila said the evidence at the hearing compelled that reduction of the discipline to a suspension for a period of time. Pagán did receive significant discipline after the hearing: a sixty-day suspension without pay. A reasonable official would think that suspension would have a deterrent effect. Indeed, the handling of the charges in a serious manner seemed to have that effect, for there were no other domestic abuse claims made against Pagán after the charges were brought. This evidence is simply insufficient to show the needed causal relationship between the 1998 domestic abuse complaint and the August 11, 2007 shooting. Even after thoroughly investigating the complaint, the PRPD Superintendent did not conclude that the events showed that Pagán was too dangerous to be in a position in which he would encounter civilians. The record does not evidence any causal link between the two events.
Only a single other item in Pagán‘s record—a complaint about assaulting a motorcyclist in 2004—revealed any additional potential tendency of violence toward civilians.10 But the record does not show that
These instances simply do not rise to the level of a “substantial” or “unusually serious” risk of shooting a civilian that the case law demands. Cf. Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 49 (1st Cir.1999) (finding deliberate indifference to grave risk of violence based on disciplinary record including thirty incidents of abuse of power, unlawful use of force, or physical assault, with six incidents generating recommendations of expulsion). In contrast to the grave risk presented in Barreto-Rivera, the disciplinary record here showed no prior incidents of Pagán‘s assaulting arrestees or shooting his weapon unjustifiably, across more than a decade of Pagán‘s police service. Without such a record, the supervisory defendants cannot be said to have ignored a grave risk of harm.11 The remaining theories of liability largely depend on the assertions that the supervisory defendants’ failure to take action based on Pagán‘s disciplinary record met the
causation requirement, which we have rejected.
2. Insufficient Procedures for Reviewing Disciplinary Records
The plaintiffs next argue that Sgt. Figueroa-Solis‘s failure to review Pagán‘s record at the time Pagán joined the TOD was causally related to the shooting, that lower-level supervisors frequently failed to review disciplinary records at the relevant times, and that the records did not contain enough information to allow lower-level supervisors to meaningfully review their subordinates’ records.12
These alleged errors plainly fail on the causation prong, and so we need not decide whether this theory is actually one of a constitutional violation. Even if Sgt. Figueroa-Solis had reviewed Pagán‘s file at the appropriate time, the file would not have demonstrated that Pagán had a proclivity for violence or was unfit for duty. It is true that a policy change instituted by Toledo-Dávila removed the details of the offense from the file memoranda imposing
The plaintiffs argue that the PRPD‘s failure to punish seriously Pagán‘s past disciplinary violations amounted to supervisory condonation of his practices. But there is no showing he posed a substantial risk, much less that his suspension was inadequate to the offense. The plaintiffs’ argument also fails because it depends on the inference that insufficient sanctioning for past problems led Pagán to believe that he could get away with more bad acts—literally, murder. Under Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87 (1st Cir.1994), that argument cannot save the plaintiffs’ case. See id. at 94 (explaining that it is “simply too tenuous” to draw an inference that “because Officer Rodríguez had not been sanctioned with respect to [his past] five [disciplinary] incidents, he believed he could get away with anything, including assaulting Febus“). More direct proof of causation is needed, and the record provides none.
3. Insufficient Procedures for Reviewing Officer-Involved Shootings
The plaintiffs next argue that the supervisory defendants did not ensure that sufficient procedures were in place for reviewing officer-involved shootings. This argument does not turn on Pagán‘s personal characteristics but is generic.
The plaintiffs urge us to infer that, had Pagán and his companions known that a meaningful investigation would follow any shooting they might commit, Pagán would
have been less likely to shoot Cáceres. The plaintiffs sharpen this theory by arguing that if more had been done about another shooting, which they argue Pagán witnessed, that would have deterred him from shooting Cáceres. On August 5, 2011, the week before Pagán‘s shooting of Cáceres, Pagán and Sustache were on duty at a youth festival at which another officer shot a 21-year-old several times, killing him. The plaintiffs allege that Pagán witnessed that shooting but was not interviewed in any subsequent investigation. This theory twice fails: it tries to prove causation using only negligence, and the causal link between that negligence and the Cáceres shooting is entirely speсulative. We have already held that such a theory, even on much stronger facts, was “simply too tenuous” to support recovery. Febus-Rodriguez, 14 F.3d at 94.
IV.
We next turn to the supervisory defendants’ appeal of the district court‘s denial of their earlier motion to dismiss plaintiffs’
The summary judgment in defendants’ favor moots the qualified immunity issue. We decline to offer a hypothetical opinion on the qualified immunity issue in this case.
V.
For the foregoing reasons, the district court‘s grant of summary judgment, at issue in No. 13-1169, is affirmed. The appeal in No. 11-2339 is dismissed. No costs are awarded.
So ordered.
TORRUELLA, Circuit Judge, concurring in part, dissenting in part.
Considering the evidence on record, and drawing all reasonable inferences in favor
Specifically, I believe there are questions of fact on whether officers Cruz-Sánchez and Colón-Báez were on notice of Pagán‘s seriously violent tendencies. I also believe it should be up to a jury to determine whether the failure of these supervisory officers to take any measures to prevent or at least mitigate the grave risk that Pagán posed to the constitutional rights of others is causally related to the shooting death of Cáceres. Accordingly, I respectfully dissent.
I. Background
Review of a district court‘s grant of summary judgment is de novo. Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 16 (1st Cir.2004). In conducting this review, we draw all reasonable inferences in favor of the non-moving party. Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir.2008). “Summary judgment is appropriate where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.
A. Pagán‘s record and appointment to the TOD and the IU
Prior to fatally shooting Cáceres, Pagán had seven complaints on his PRPD disciplinary record. These included a complaint for insubordination, one for domestic violence, and one for assault on a motorcyclist. The latter was, however, found to be unsubstantiated by the PRPD. The plain-
tiffs have provided some form of proof for each of the seven complaints.
The plaintiffs’ argument rests in large part on the domestic violence complaint, filed by Pagán‘s then girlfriend, which itself encompassed three acts of serious violence and police impropriety by Pagán in 1998. In the first incident, Pagán struck his girlfriend and, while brandishing his firearm, threatened her with death. In the second incident, Pagán visited his girlfriend‘s home carrying a gun he had taken from an arrestee. He brandished the gun and swore he would kill the arrestee whom the weapon belonged to. He then stored the weapon at his girlfriend‘s apartment for a few days. Finally, after their relationship had ended, Pagán stormed into his ex-girlfriend‘s apartment and once again assaulted and threatened her.
The PRPD‘s investigation of the domestic violence complaint filed by Pagán‘s girlfriend began in 1998. Pagán did not receive a sanction, however, until August 2004, when then Superintendent Agustín Cartagena ordered his expulsion from the force. While the order of expulsion against Pagán was pending, Cruz-Sánchez promoted Pagán to the Humacao Tactical Operations Division (“TOD“). Cruz-Sánchez was Director of the TOD at the time. The TOD is a specialized team of “elite” officers within the PRPD who receive additional training for particularly sensitive situations. Cruz-Sánchez did not assess Pagán‘s disciplinary history before promoting Pagán to the TOD.
In early 2005, defendant Toledo-Dávila took on the job of Superintendent, and in December 2005, he reissued Pagán‘s order of expulsion. After Pagán sought internal administrative review of this sanction, Toledo-Dávila reduced his punishment to a
Pagán served his suspension from August 23 to October 22, 2006. At that time, Cruz-Sánchеz was still Director of the TOD, with Colón-Báez as Assistant Director. Upon completion of his suspension, Pagán immediately rejoined the TOD. Though PRPD regulations require that officers coming back from suspension be sent initially to Replacement Centers, none of the supervising officials took any action to transition Pagán back into service. In January 2007, shortly after Pagán served his suspension, Cruz-Sánchez evaluated Pagán and gave him stellar reviews. He admits he did so without reviewing Pagán‘s disciplinary file, or otherwise investigating his disciplinary history. This evaluation was seven months before the shooting of Cáceres.
A few months later in the summer of 2007, defendant Rivera-Merced, a high ranking PRPD official, sought to create a specialized Impact Unit (“IU“) within the TOD, for intervention in high crime areas. Cruz-Sánchez developed the operational plan for the IU, and Colón-Báez hand-picked Pagán for the unit; Pagán was again promoted. Neither Cruz-Sánchez nor Colón-Báez reviewed Pagán‘s disciplinary file or otherwise probed his disciplinary background before accepting Pagán into the IU.
B. The murder of Cáceres and the immediate aftermath
I will spare the details of Cáceres‘s execution. Suffice it to say that the shooting was caught on video and the circumstances surrounding it are not in dispute.
Immediately after the murder of Cáceres, Pagán аnd the two other defendant line officers who were present at the shooting left for Ryder Hospital nearby in Humacao. The first to arrive on the scene
of Cáceres‘s murder was Detective Rodríguez, who is not a party to this suit. After speaking to a number of witnesses, Detective Rodríguez described the incident to Cruz-Sánchez, apparently over the phone or radio. Cruz-Sánchez was the highest ranking officer in the Humacao area that evening. Detective Rodríguez told Cruz-Sánchez that he had no doubt the officers had abused their power. Detective Rodríguez prepared a report of the incident, essentially relaying that Pagán shot Cáceres four times while the latter lay on the ground, and expressing his view that the use of deadly force was entirely uncalled for.
Meanwhile, as Detective Rodríguez was investigating the scene of the crime, Cruz-Sánchez joined Pagán at Ryder Hospital. Colón-Báez, even though he was not on duty that evening, also joined Cruz-Sánchez and Pagán at the hospital.
As Cruz-Sánchez spoke to Pagán and the other defendant line officers for their version of events, other eyewitnesses of the shooting began to arrive at the hospital and offered their own account of what had transpired: that Cáceres had been shot dead while lying defenseless on the floor. By this time, Detective Rodríguez had already apprised Cruz-Sánchez that an act of police brutality had occurred.
Notwithstanding clearly contradictory accounts from other eyewitnesses, the report that resulted from information retold by Cruz-Sánchez and Colón-Báez, adopted the version of Pagán, his companion officers and that of an Héctor Huertas, the only bystander identified by name in the report, and, coincidentally, the only witness who gave a view of the events that was favorable to Pagán. As to the numerous accounts unfavorable to the officers, the report merely notes that “several persons, were interviewed at the scene” who
The accuracy of Cruz-Sánchez‘s rеport of the events of August 11, 2007 came under serious doubt shortly thereafter when, thanks to a bystander who video-recorded the incident, the execution of Cáceres was aired on the evening news a few days later.
C. PRPD General Order 87-14
PRPD General Order 87-14 (“G.O. 87-14“) requires officials in supervisory positions to examine the personnel file of each and every officer under their supervision. According to G.O. 87-14, supervisors must assess whether an officer in their unit is of violent character or holds the potential to commit civil rights violations. A supervisor must make this independent assessment whether or not there are substantiated complaints against the officer. G.O. 87-14 mandates that prior conduct of, and complaints against, the officer must be assessed in light of the underlying facts of the incident, and not on the ultimate result of the complaint.
II. Discussion
A supervisory official may be found liable under
foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or willful blindness.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 582 (1st Cir.1994). To prevail on a theory of deliberate indifference, “a plaintiff must show (1) a grave risk of harm, (2) the defendant‘s actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address the risk.” Figueroa-Torres v. Toledo-Dávila, 232 F.3d 270, 279 (1st Cir.2000) (internal quotation marks omitted). Liability does not attach on a showing of deliberate indifference alone, however; there must be an affirmative link between the subordinate‘s misconduct and the action, or inaction, of supervisory officials. See id. This causal connection “need not take the form of knowing sanction, but may include tacit approval of, acquiescence in, or purposeful disregard of, rights-violating conduct.” Hoyos, 151 F.3d at 7 (citing Maldonado-Denis, 23 F.3d at 582 (explaining that the supervisor must have “had the power and authority to alleviate [the violation]“)).
To be sure, both Cruz-Sánchez and Colón-Báez dispute some aspects of plaintiffs’ version of the facts. All the more reason to conclude that, on this record, summary judgment in favor of Cruz-Sánchez or Colón-Báez was inappropriate.
As to their knowledge—deemed or otherwise—of Pagán‘s violent tendencies, there is arguably some dispute as to whether G.O. 87-14 had been suspended, and when exactly this suspension might have happened. Cruz-Sánchez testified, however, that as a supervisor he was responsible for reviewing the disciplinary files of officers under his supervision. This is consistent with the testimony of defendant Superintendent Toledo-Dávila, who stated that all supervisors were charged with the responsibility of review-
Moving on to the pudding, one defendant at a time, Cruz-Sánchez was a lieutenant and former Director of the TOD, and he personally promoted Pagán to the TOD in 2004. At that time, there was a pending expulsion order against Pagán. Though plaintiffs dispute the claim, Cruz-Sánchez claims he was unaware of the pending expulsion order. Cruz-Sánchez did admit that, though he was required to do so, he did not review Pagán‘s disciplinary file. Even assuming that he did not know the nature or the extent of the violations that led to Pagán‘s pending expulsion order, that G.O. 84-17 required him to review Pagán‘s file—a requirement he admittedly knew of—should have compelled him to review the file. It is clearly a question for the jury whether this circumstance is deemed to put Cruz-Sánchez on notice of Pagán‘s violent character.
Later, Cruz-Sánchez again had the opportunity to keep Pagán from a position where he posed a danger to civilians, but remained idle. In October of 2006, upon completion of a sixty day susрension, Cruz-Sánchez took Pagán right back into the TOD.14 He again neglected to review Pagán‘s disciplinary file, despite the fact that he was aware that Pagán had just served a considerable sanction. Two to
three months later in January 2007, again neglecting to review Pagán‘s file or otherwise inquire into his disciplinary history, Cruz-Sánchez evaluated Pagán and gave him stellar reviews, with high marks on the category of self-control. Seven months later, Cáceres lay dead on the ground. In fact, Cruz-Sánchez had perhaps one more opportunity to take action. And it may have come in the Summer of 2007 when Cruz-Sánchez designed the plan for the IU, a specialized squad within the TOD, and Colón-Báez chose its members, and Pagán was allowed to join. But again, no effort was made to investigate Pagán‘s disciplinary history.
It is up to the jury to consider Pagán‘s return to the TOD and shortly thereafter his promotion to the IU, closely following a suspension, all at the behest of Cruz-Sánchez, who oversaw these decisions and afforded Pagán glowing reviews, without even glancing at his disciplinary record, much less investigating the reasons for his suspension. Sub par, pro forma evaluations in particular concerned us in Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir.1989), when the supervisory defendant in that case gave favorable reviews to аn officer that had ten complaints against him, including some episodes of violence. Id. at 563, 582.
Colón-Báez presents a more egregious case than Cruz Sánchez. Colón-Báez personally selected Pagán for the IU, knowing full well of Pagán‘s violent past; he personally served Pagán with his suspension papers and admitted knowing that the
The majority contends that there is no evidence of Colón-Báez‘s knowledge of Pagán‘s violent past. Though the extent of Colón-Báez‘s knowledge is arguably disputed, there is no question that he was aware that Pagán served a considerable suspension for an episode of domestic violence. Furthermore, had he probed the matter, as he was required to do, he would have discovered that Pagán had battered his ex-girlfriend and threatened her with death while brandishing his firearm.
As to Colón-Báez, a rational jury could conclude that he relied on no criteria for selecting prospective members of the IU, and in Pagán‘s case in particular, declined to review his personnel file or assess his disciplinary background. I stress that Colón-Báez‘s inaction is particularly objectionable given that it is undisputed that he was aware that Pagán faced disciplinary action due to violent conduct. A rational jury could easily conclude that awareness of Pagán‘s suspension should have, at the very least, put him on notice of Pagán‘s violent character.
The majority also takes the position that review of Pagán‘s disciplinary file would not have uncovered much of his violent past. This is so, they contend, because at some point during his tenure as Superintendent, Toledo-Dávila limited the information contained in disciplinary orders by removing the factual details underlying complaints, and listing only the sanction. This, however, does not provide shelter to Cruz-Sánchez or Colón-Báez. A change in the format of disciplinary orders did not relieve either supervisor of his duty to
ascertain whether or not officers under their supervision presented a danger to the civil rights of citizens. Both G.O. 87-14 and the testimony of Toledo-Dávila regarding the duty of supervisors to assess their subordinates’ character bolster this proposition. Furthermore, as Cruz-Sánchez himself admitted, both he and Colón-Báez could have easily accessed whatever information was pertinent to Pagán‘s suspension, which they were both aware of, merely by requesting it.
I am concerned by the majority‘s view that Pagán‘s disciplinary history was not enough to put the supervisory officials on notice that he presented a substantial risk of shooting an arrestee or civilian. Underlying this finding is the notion that, in order for liability to attach on a deliberate indifference theory, our case law requires that supervisory officials be on notice, not merely of the potential for violence on the part of the subordinate, but of the potential of a specific act of violence, in this case, shooting a civilian.
To be sure, the Supreme Court has provided guidance to the effect that there must be warning of a specific kind of injury. See Bd. of Cnty. Comm‘rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 412, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“[A] finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff.“) (emphasis omitted). However, if a subordinate‘s threats of death by gunfire against another person are not enough to put a supervisor on notice that the subordinate is a prime prospect for engaging in such conduct in the future, is it required that his supervisors wait until the subordinate actually commits such a crime before corrective or
Accordingly, out of an abundance of caution, I reject any reading of the case law that approaches affording defendants one free bite at the apple. Though in an Eighth Amendment context, our case law has actually disavowed the idea—which would essentially amount to requiring clairvoyance—that too much specifics are required. See Ruiz-Rosa v. Rullan, 485 F.3d 150, 157 (1st Cir.2007) (“[P]roof of deliberate indifference by prison officials does not require evidence that the officials were aware of the risk of a specific harm.“). I think we‘ve avoided such a rule for good reason.
I concede that whether the causal connection here is sufficient, is a close question, particularly as to Cruz-Sánchez. I understand it may seem a stretch to some, at first glance, that a few violent episodes in 1998 would somehow be linked to another violent episode in 2007. However, it is
in part because this is a difficult question that I believe the majority errs in not allowing the jury to fulfill its traditional function. Young v. City of Providence, 404 F.3d 4, 23 (1st Cir.2005) (“[Q]uestions of proximate cause are generally best left to the jury.“). Though Pagán‘s most egregious acts of violence happened years before the murder of Cáceres, the disciplinary proceedings related to those acts did not conclude until eight years later, in October 2006, when Pagán served his suspension only months before the execution.15
A reasonable jury could conclude that Cruz-Sánchez and Colón-Báez had several opportunities throughout these years to take action to prevent harm to civilians on behalf of Pagán, and failed to act up until 2007. Not an unlikely possibility, given that, only months later, he would carry out the murder he had threatened against at least two other people in the past, and took Cáceres‘s life.16
III. Conclusion
A jury should have the opportunity to determine whether Cruz-Sánchez and Colón-Báez were on notice of the risk of harm Pagán posed to civilians. It should
Notes
Serious Offense # 1: “Show a patent inability, incompetence, carelessness, partiality or negligence in the performance of his or her duties, functions and responsibilities.”
Serious Offense # 3: “Leave police-issued firearms or any other firearm carried or possessed under a permit at the reach of other persons who are not authorized to use them or allow others to use them, or failing to take the corresponding measures in relation to them.”
Serious Offense # 2: “Threaten with, or use, a firearm against any person, except when defending oneself or others.[“]
Serious Offense # 27: “Acting in a damaging, immoral or disorderly manner to the detriment of the Police Department.”