Wilfredo Martinez, A/K/A Wilfredo Martinez Rodriguez v. Rafael Colon, A/K/A Rafael Colon Pizarro

prosecutor’s We add even if the com- line, ments crossed the our traditional three- MARTINEZ, Wilfredo Wilfredo a/k/a part analysis suggests that reversal would be Rodriguez, Plaintiff, First, although unwarranted. the comments Appellant, repeated times,

were several there is no rea- prosecutor son to conclude that the intention- ally appellant’s drew attention silence at COLON, Rafael Rafael Colon a/k/a Second, despite objec- trial. the lack of an Pizarro, al., Defendants, et tion, judge jury the district instructed the Appellees. painstaking regarding govern- care proof, appellant’s presumed

ment’s burden of No. 94-2138. innocence, right and his constitutional to re- testifying. frain Among things, from other United Appeals, States Court of judge admonished that “no adverse infer- First Circuit. ence is to be drawn from his exercise of his election not to take the stand.” We April Heard 1995. explicit confident that instruction was May Decided 1995. any impermissible sufficient combat infer- might ence that have been drawn from the Rehearing Denied June prosecutor’s statements. least, Mejia-Loza

Last —but far from

no, (explaining 829 F.2d at 274 that “the

strength government’s of the case is an im

portant considering likely factor in effect rhetoric”) possibility of borderline —the comments, misconstrued, even if affected

appellant’s substantial is diminished potency government’s proof.

Lynch’s testimony unequivocal was and cor many Moreover, points.

roborated on sever robbery

al appel witnesses to the UST noted presence

lant’s and described his behavior in way strongly suggested complicity

in the crime. view of the substantial against appellant,

evidence highly find

unlikely jury could have been

swayed by prosecutor’s amphibolous rem

arks.11

VII. CONCLUSION go aught

We need no further. For

appears, appellant fairly justly tried and is, judgment therefore,

convicted. The below

Affirmed. enough, general principles

11. If this were not argument believe that this line of could have governing plain error review fairness, caution us in this "seriously integrity affectfed] the against exercising case Taylor's our Olano, discretion in public reputation judicial proceedings.” worst, prosecutor's behalf. At comments at —, (internal 113 S.Ct. at 1776 — any impermissible implication were veiled and omitted). quotation marks arising out of them was attenuated. We do not view,

fers to dwell. our these details are legal posed not relevant issues appeal. early morning May

In the hours of 1988, plaintiff-appellant Wilfredo Martinez (Martinez), Rodriguez youthful member of force, Puerto Rico’s drove to the Loiza Precinct, Street located the San Juan met- ropolitan Though area. Martinez was not a.m., begin scheduled to his shift until 4:00 he custom, early, pursuant arrived to local procure post assignment. order to Mar- alleges duty tinez that he was on from the moment he arrived —even before his shift began point from that forward he —because subject to the shift commander’s orders. Mudd, Towson, MD, E. John arrival, with whom Upon Martinez’ a fellow officer Howard Charles and time, Ortiz Toro & Ortiz who was Angel on at the Valentin Offices, PR, Rey, Brunet Law Hato (Valentin), were on approached Corali Martinez’ car brief, appellant. for lindo”). “pretty and him boy” (“papito called alighted, When Martinez Valentin drew his Edgardo Rodriguez-Quilichini, Asst. Sol. revolver, pointed service it at Martinez’ Gen., Hernandez, Delgado with whom Pedro stomach, hammer, placed cocked the fin- Gen., Fiol, Lugo Sol. Deputy and Carlos Sol. ger trigger, inquired on the and if Martinez Gen., PR, brief, Rey, Hato appel- were was afraid. Valentin then disarmed the lees. weapon, and Martinez hurried inside the sta- tion, telling first Valentin: “Don’t horse TORRUELLA, Judge, Before Chief you around with that kill because will me.” BOWNES, Judge, Senior Circuit and SELYA, Judge. Circuit Shortly occurred, after this fracas had Va- room, lentin accosted Martinez in the radio

SELYA, Judge. Circuit finger inserted his into a small hole in Mar- appeal This interesting questions undershirt, raises ripped tinez’ again, it. Once (1988) about the contours of U.S.C. away Martinez walked from Valentin. He Supreme and the reach of the Court’s core changed uniform, then into his entered the holding DeShaney Winnebago County room, waiting reported super- to his shift Dep’t, Social visor, Servs. defendant-appellee Juan Trinidad Mar- (Trinidad). 103 L.Ed.2d Concluding, rero do, the court appropriately below thereafter, Soon reappeared, applied DeShaney, entry we affirm the of pointed genitals, his revolver at Martinez’ summary judgment in the defendants’ favor. hammer, and, cocked the finger with his trigger, away” threatened to “blow Mar- I. BACKGROUND penis him, (asking tinez’ somewhat rhetori- scared). Consistent with cally, the method of Fed. if he was When Valentin low- R.Civ.P. we canvass the material facts in weapon, ered immediately flatters, light impermissi- does not away moved from him. Within minutes Va- distort, bly plaintiffs Martinez, claims. again approached We then lentin cocked the recount revolver, the travel of the ease. aimed it at groin, Martinez’ taunting.

resumed his The revolver acciden- A. The tally discharged, Facts. maiming Martinez. facts, We omitting graphic outline the The first place pre- encounter took in details on dissenting pre- which our parking brother cinct’s transpired lot and the rest dation, judgment accordingly. and entered According to Mar- police station. inside appeal from This followed. elapsed tinez, twenty minutes roughly agree that parties All to finish. start a.m. the 4:00 occurred before

shooting, which STAN- II. THE SUMMARY JUDGMENT unintentional.1 change, was shift DARD summary judg may grant A district court of the Case. B. Travel plehdings, depositions, “if the an ment suit May Martinez filed On and admissions on interrogatories, swers against de- court numerous district federal affidavits, any, file, together show here, fendants, Rafael including, as relevant as to genuine no’ issue there is (Colon), A. Rentas Luis Velez Pizarro Colon moving party is fact and that the material (Velez), (collectively, “the offi- Trinidad and a matter of judgment to a law.” entitled defendants”).2 Invoking 42 or “the cers” 56(c). the We have charted Fed.R.Civ.P. jurisdiction on premising § and 1983 U.S.C. ease, see, this rule in case after boundaries of question, see 28 a federal existence of the I, 454, e.g., Coyne Taber Partners 53 F.3d v. (1988), alleged that his he 1331 U.S.C. Amusements, (1st Cir.1995); National 457 abridged in each defen- that rights had been Dedham, 731, 43 F.3d 735 Inc. v. Town of pro- and a to him intervene dant owed — (1st denied, —, Cir.1995), cert. harm at the readily discernible him from tect (1995); 2247, L.Ed.2d 255 Va 115 S.Ct. 132 officer, but each defendant of a fellow hands (1st 27, Rostoff, 39 F.3d 32 Cir. sapolli v. subsequent duty by inaction.3 this breached 1994); Carpenters, Bhd. Dow v. United of pendent tort claims asserted Martinez (1st Frank, Cir.1993); Pagano v. F.3d and, with three respect to all defendants (1st Cir.1993); Wynne v. 983 F.2d Trinidad, a section 1983 asserted respect to Med., 793- 976 F.2d Univ. Sch. Tufts of liability. supervisory claim based — denied, U.S. —, (1st Cir.1992), cert. (1993); L.Ed.2d 470 discovery, the flurry pretrial of a After Property Parcel Real summary judgment. v. United States One for moved R.I.), Shoreham, (Great Neck, alia, Harbor New that They argued, inter (1st Cir.1992); Rivera- color of state when acting under law the F.2d that, therefore, Agosto-Alicea, 959 occurred; on- v. Muriente mishap (1st Cir.1992); Medina-Munoz a constitutional 351-52 did not have looker officers Co., 7-8 Reynolds Tobacco The R.J. on Martinez’ duty to intervene behalf. Inc., (1st Cir.1990); Drug, Garside Oseo and Mar- the motions court referred district (1st Cir.1990); Brennan magistrate 48-49 timely opposition to a tinez’ Cir. Hendrigan, 888 F.2d magistrate concluded judge. The 1989), purpose it no useful and would serve had no constitutional DeShaney, the officers map that anew. to draw protect Martinez from Valen- to obligation actions, court to urged the district tin’s say no we need present purposes, For plaintiff ob- summary judgment. The grant summary judgment will lie more than report and recom- magistrate’s jected to the record, aspect taken in the court, when mendation, affording the even the district nonmovant, Riv 72(b), see review, most favorable see Fed.R.Civ.P. de novo yield era-Muriente, to F.2d at fails report, accepted recommen- the the adopted against several claims other support 2. Plaintiff of his asserted his memorandum law 1.In defendants, Lopez-Felici- including Valentin and Lopez-Feliciano's opposition Carlos to defendant us, and we are not before Those claims ano. ignore dismiss, "the re- Martinez stated that motion opinion. purposes of this for them by apparently Record fired accident." volver rate, summary judg- the Appendix at 21. At hotly underlying contest- Although facts the support no facts would record contains ment ed, appeal, as purposes of this we for assume and, aught appears, finding; contrary a it, defendants that all three have Martinez would shot asserted that Valentin has never progression of events and entire witnessed intentionally. opportunity meaningful to intervene him had a along way. step each trialworthy as to plaintiff, support finding issue some material fact. can that the applying principle, important right defendants violated a secured to the every genuine bear in mind that not plaintiff factual either Constitution or conflict a trial. It necessitates when federal law. Since the has not al- disputed potential change fact has the leged transgression any right secured governing outcome of the suit under the statute, law to him under a federal nar- favorably if found further, nonmovant inquiry row the limiting still it to materiality hurdle is cleared. See One Par- whether the facts a violation show of a consti- cel, Here, 960 F.2d at 204. right. record re- tutional question It is to this elusive salmagundi bitterly flects a veritable dis- proceed. that we next puted facts —but none that is material. Duty A. The to Intervene. extent, then, simplified.

To that our task is review, Exercising de Pagano, novo pins hopes Plaintiff principally on a adopting plaintiffs F.2d at ver- claim that the defendants’ failure to (but not, sion of all controverted facts howev- peril posed him from the imminent Valen er, giving “eonelusory allega- credence to abridged right tin to substantive due tions, inferences, improbable unsupport- [or] process. The touchstone the law in this Medina-Munoz, speculation,” ed 896 F.2d at Supreme area is opinion Court’s in De 8), we conclude that the court below did not There, Shaney. damages a child sued for jettisoning err in the section 1983 claims. 1983, 42 claiming under U.S.C. that em ployees of a state-run social agency, service III. ANALYSIS behavior, parent’s notice of a abusive protect nonetheless failed to the There are two essential child from elements of “(i) readily danger. the an action under foreseeable See section 1983: that the DeSha ney, 193, 489 complained conduct U.S. at 109 at of has been S.Ct. 1001-02. committed (ii) entry The Court summary under color of state affirmed the and this judgment in defendants’ conduct worked a denial of favor. Chief secured Justice Rehnquist, writing majority, the Constitution or laws of the ex the United plained Chongris Appeals, States.” Due Process Board 811 Clause ordi (1st narily 36, Cir.), denied, require F.2d 40 does not protect cert. state to 483 U.S. life, 1021, 3266, limb, an (1987); individual’s property against 107 S.Ct. 97 or L.Ed.2d 765 Atkins, 42, marauding 48, parties accord West v. of third not acting 487 U.S. 108 to 2250, 2254, 196, (1988); S.Ct. 101 state’s behoof. See id. at L.Ed.2d 40 109 S.Ct. Williams, Consequently, at 1003. 327, 330-31, Daniels v. “a State’s failure to U.S. 664-65, protect 662, (1986). an against private 106 S.Ct. individual 88 L.Ed.2d 662 violence course, simply Of does not the reference to constitute a violation “state law” cannot of the 197, literally, be taken Due Process enjoys for Puerto Clause.” Id. at Rico 109 S.Ct. equivalent functional at 1004. regard statehood in and, thus, to section 1983 state law includes Although DeShaney open Court left Enters., Playboy Puerto Rico law. See Inc. possibility of certain circumscribed ex P.R., 25, Public Serv. Comm’n 906 F.2d ceptions general nonliability, rule of (1st Cir.), denied, 959, 31 n. 8 cert. 498 U.S. Martinez makes no effort to slide within (1990); 111 S.Ct. Berr argue them. He does not that he was in the Univ., 1330, 1331 ios v. Inter Am. 535 F.2d n. custody state, 198-200, see id. at (1st Cir.), dismissed, appeal 426 U.S. S.Ct. at (discussing right 1004-06 protec to 96 S.Ct. 49 L.Ed.2d 1180 arising tion prisoners favor of incarcerated purposes

For appeal, of this involuntarily defen- patients), committed mental dants do not plaintiffs allegation contest the or that he was in custody,” its “functional that, times, at all 9, 109 (discuss relevant the defendants id. at 201 n. S.Ct. at 1006n. 9 were on ing possible color of state analogous existence of situations law. concession inquiry This reduces our institutionalization), to to incarceration or or facts, whether the taken congenially most that the him state made more vulnerable to O’Neill, actions, then, see id. S.Ct. Gaudreault Valentin’s cases Rather, aggressor Martinez contends that De- which the under color of Shaney altogether inapposite. DeShaney state law. The rule —which ad- dresses the “State’s failure an that this contention is based To the extent against violence,” individual private DeSha solely fact simply and on the unlike (em ney, 489 U.S. at 109 S.Ct. at 1004 DeShaney, the defendants here are phasis supplied) implicated in such officers, workers, —is reject not social it. Of question cases because the violence is not course, police an officers sometimes have i.e., private “public,” attributable to state duty to that is enforce- affirmative intervene action.4 the Due Process Clause. For able under present example, officer who is at the “[a]n Private violence—even violence en- arrest] scene an and who fails to take [of gaged happens one who to work for the steps protect an- reasonable victim of legal state —has different ramifications than of excessive can other officer’s use force be See, violence attributable to state action. held liable under section 1983 for his nonfea- Bd., e.g., Hughes County Sch. Halifax sance,” provided op- that he had a “realistic (4th Cir.1988) (distinguish portunity” prevent the other officer’s ac- ing private county actions of maintenance Salem, Municipality tions. Gaudreault v. workers from cases in which “the actions Cir.1990), 207 n. 3 cert. complained of were committed while the de denied, purporting fendants were to act under the (1991); L.Ed.2d 718 accord O’Neill v. Krze state, vested in them (2d Cir.1988). minski, 9, 11-12 But possible were otherwise made because of the not, impor- line of eases does privileges employment”), of their cert. de tunes, exception carve out an to the DeSha- nied, Instead, ney escape rule. such cases (1989). L.Ed.2d 991 aggressor acting rule because the is public color of his office. held, recently light in Thus we of DeSha ney, attorney’s that a district office had no The point. Gaudreault illustrates obligation protect constitutional to a citizen quoted specifically contemplates statement (there, against self-inflicted violence underlying tortious conduct take suicide) alleged noncustodial to have been arrest, place of an interro- within the context by implication caused the state’s of him in a Gaudreault, maneuver, gation, or similar see Pina, multiple murder case. See v. 53 Souza 923 F.2d at 206-07 & n. in which a differ- (1st Cir.1995). Interpreting F.3d 426-27 ential exists between the victim and the offi- DeShaney say gener to that the state has no precisely cer because of the latter’s status as duty law, protect alized to its citizens vio empowered coercively from one to enforce the except by necessary, stage acting if lence when it against Similarly, the former. sets the (as affirmatively setting), beating involved the of a a custodial O’Neill handcuffed during although id. at man law enforcement officers an we concluded may interrogation police area of a state’s acts have “rendered dece [the the detention O’Neill, danger station. See 839 F.2d at 10. more dent] We vulnerable to the sense imagine paradigmatic may cannot a more exercise those acts have exacerbated —or authority processes brought of than the of hand- [the decedent’s] even suicidal about — cuffing, detaining, interrogating a citizen. ... of tendencies these are not the kind scenario, duty may aggressor 4. A to constitutional intervene also the onlooker officers and the and, essentially joint arise if onlooker are instrumental in as- officer are fore, tortfeasors there- sisting place responsibil- the actual to victim a attacker incur shared constitutional See, Brishke, e.g., position. Byrd ity. generally Pape, vulnerable See Monroe v. (7th Cir.1972); 473, 484, (1961) DeShaney, 5 L.Ed.2d 9-11 cf. (advising against (recognizing 489 U.S. at 109 S.Ct. at 1006 courts to read section 1983 possible duty backdrop liability). affirmative of historical tort Because constitutional against dangers “part joint enterprise certain if the state is such takes there here, no indication of something explore viability [the their creation” or does "to render have no occasion to them”). theory. victim] more vulnerable to In such a 1031, 1040, For in 89 L.Ed. 1495 give acts’by state that would ‘affirmative exercises, stance, police but officer who duty protect.” Id. rise to a constitutional exceeds, lawfully possessed or misuses Coun- (citing Monahan v. Dorchester at 426 thought acting be authority generally Inc., Ctr., F.2d seling See, City e.g., under color of law. Gibson Cir.1992)). (7th Chicago, 910 F.2d Cir. of milieu, these cases Translated 1990). on-duty police officer when an mean that violence, segregating private point vel non of a is that the existence witnesses of- action calls for a more duty to will most action from state intervene constitutional analysis. general, In section witnessing private hinge sophisticated whether he is ten implicated a state actor’s is not unless to state ac- or violence attributable violence performing occurs in the course of conduct how and where It remains to be seen tion. office, apparent of his or an actual from the other separates one the line the conduct is such that the actor unless be drawn. should way in that but for could not have behaved Thus, authority of his office. whether B. Private Action. acting officer is under color of state distinguish private vio- attempting of turns on the nature and circumstances law to state ac- violence attributable lence from relationship conduct and the the officer’s DeShaney purposes applying tion for performance that conduct to the of his official rule, simplistic must beware solutions. courts Springfield, City Pickrel v. duties. See sure, attributable to state To violence is be (7th Cir.1995); Anthony v. acting perpetrator under color action the Sacramento, F.Supp. County Lowentritt, see, e.g., Earnest of state (E.D.Cal.1994). Cir.1982) (“Section (5th 1198, 1200 inexorably follows think this focus We inju- does not reach all constitutional West, “[t]he from where the Court wrote that ries, only persons caused but those definition of under color of traditional ”), is a color of state law.’ ‘under requires that the defendant ... state law Furthermore, tautology. the con- virtual power ‘possessed virtue of have exercised “acting law”— under color of state struct — possible and made because the state law any single, easily rarely depends on deter- wrongdoer is with the clothed see, fact, policeman’s garb, minable such as a ” West, 49, 487 at 108 state law.’ U.S. S.Ct. (6th Belcher, 438, 441 e.g., Stengel v. 522 F.2d Classic, (quoting v. 313 at 2255 United States Cir.1975) police a (explaining whether 299, 326, 1031, 1043, 85 L.Ed. U.S. controlling”), “in out of uniform is not officer is or (1941)). Hence, person a acts 1368 under dismissed, 118, 97 S.Ct. rt. 429 U.S. ce posi- color of state law “when he abuses the see, (1976), status, 514, duty L.Ed.2d 269 50 50, given to him Id. at tion the State.” (2d Callan, 545, e.g., v. 13 F.3d 548 Pitchell key 108 S.Ct. at 2255. The determinant Cir.1994) (explaining that “whether an officer actor, question, at the time in whether duty challenged inci- was on or off when the capacity act in or purposes to an official dispositive); Stengel, not dent occurred” is responsibilities pursuant exercise official (same), whereabouts, see, F.2d at 441 or 522 law. state See id. Delcambre, 407, e.g., Delcambre v. 635 F.2d (5th Cir.1981) curiam) (per (holding that then, 408 every Logically, action un police private chiefs assault on a citizen person happens who to be a dertaken color of law even was not conduct under police to the state. officer is attributable police headquarters). though it occurred at Though “under ‘color’ of law means under “acting law,” so, Nor does under color of state law” ‘pretense’ of even the acts of state stays strictly depend personal pur on whether an officer officials “in the ambit of their Screws, duty, oversteps or it. See are not state action. 325 within the line suits” U.S. Gibson, 1040; 167, 172, 111, Pape, 81 65 see also 910 Monroe v. 365 U.S. S.Ct. S.Ct. (1961); 473, 476, Accordingly, policeman’s 5 L.Ed.2d 492 Screws v. F.2d at 1518. States, conduct, 91, 111, private 65 outside the line of United S.Ct.

987 hensible, by any pre- indicia of actual or ostensible is not action under unaided color or tense of law. authority, occurring conduct un state is not City color of state law. See Barna v. der Nor can it be said that Valentin’s actions (3d Cir.1994); Amboy, 42 F.3d 816 Perth any meaningful way were in related either to Tarpley, v. 945 F.2d 809 United States performance his official status or to the of his (5th denied, Cir.1991), 917, 112 504 cert. police regard, duties. In this the case bears (1992); Dang There, a resemblance to Delcambre. Vang Vang Xiong Toyed, X. v. plaintiff, Fifth Circuit ruled that the who had (9th Cir.1991); Murphy Chicago v. Tran premises been assaulted on the of the munic- Auth., (N.D.Ill.1986); F.Supp. sit ipal police brother-in-law, station her Hackett, F.Supp. Johnson chief, police cognizable had no claim under (E.D.Pa.1968). though “acting Even under Delcambre, U.S.C. 1983. See 635 F.2d at “acting pretense color of law” includes under family 408. The assault arose out of a analy purposes of law” for of a state action squabble, and police the court found that the sis, pretense can be no if the chal there chief, though duty, “was not under lenged is not conduct related some mean required liability color of law as under ingful way governmen either to the officer’s [section 1983].” Id. performance of tal status or to the his duties. sure, To be shot Martinez with revolver,

his service and in that it sense Separating might C. from Chaff. argued shooting Wheat be that the was made possible by Valentin’s status as a offi- Explicating segre the standard for Tackett, Cassady cer. See 938 F.2d gating private action from action attributable (6th Cir.1991) (concluding “alleg- complete to the state does not our task. edly flourishing threatening to use his Since the conduct of officers gun” eoworker, against a the defendant acted does not action constitute attributable under color of state law because “had he and, therefore, give does not rise to power carry gun liability DeShaney section 1983 or oth jail only county’s] [the because he was elect erwise, Valentin, we must determine whether jailer”). argument ed This succumbs for a place question, at the time and was en very proffer basic reason: did not or, gaged purely personal pursuits con appellate either in the district court or in his versely, whether he was under color of is, therefore, argument prop brief. The so, state law. To do we must assess the Slade, erly before us. See United States v. light totality nature of his conduct in (1st Cir.1992) (stating 980 F.2d 30 n. 3 Pitchell, surrounding circumstances. See appeal theories not briefed 548; County F.3d at Revene v. Charles Teamsters, waived); Chauffeurs, Warehouse Comm’rs, (4th 882 F.2d Cir. Helpers Superline Transp. men & Union v. 1989); Meshriy, Traver 938 Co., Cir.1992) (“If (9th Cir.1980). circuit, principle in is settled this it is extraordinary absent the most circum Here, transpicuously the record is clear stances, legal squarely theories not raised in throughout the course of Martinez’ or- the lower court cannot be broached for the exercise, purport deal Valentin did not or appeal.”). first time on exercise, (real any power pretended) pos- or argument properly sessed virtue of law. To con- before state Even were us, trary, singularly per- was bent on a we would not embrace it. do not Valentin We tormenting acquaintance.5 every sonal frolic: an think it is reasonable to hold that use uniform, Though duty policeman’s gun, in Valentin’s of a even the course of police simply purely personal pursuits, a status as a officer did not enter creates cause of Instead, benighted of into his harassment of his fellow action under section 1983. we are sort, Hazing though repre- officer. of view that the context in which a service this characterization, plaintiff's spoken put complaint, "playing 5. To use the it in his second amended around”; or, "hors[ing] genitalia ‘Russian roulette’ with another man's was in the the location of this case used, just its that event the mere fact of is revolver DeShaney dictates that the de- use, penumbra the con- of be consulted to determine must enjoy qualified officer’s conduct. would relevance of the fendants nonetheless stitutional D.C., and, 559 F.2d Payne immunity appellant’s v. suit Government since See of (D.C.Cir.1977). Consequently, money damages, 825 n. the defendants would seeks police officer’s use of a state-issue a this alterna- “[w]hile to an affirmance on be entitled private activities will pursuit Garside, in the of weapon See, e.g., 895 F.2d at ground. tive in a ‘furthered’ the 1983 violation have summary grant that a of (explaining 48-49 sense,” indi- a court needs “additional literal any indepen- judgment can be affirmed to conclude cia of state manifest in the dently ground sufficient made state law.” Bar acted under color of officer record). elaborate below. We na, (holding “unautho 42 F.3d at 817-18 nightstick simply police-issue of a rized use qualified im analyzing “In a claim of clearly personal fami enough [a] to color clearly munity, ... are concerned with imprimatur of state au ly dispute statutory rights or established constitutional thority”). officer would have of which a reasonable Here, produced any evi- plaintiff has not action.” known at the time he took Crooker tormentor, (1st Cir.1993) Metallo, tending that his dence to show 5 F.3d firearm, exercising was brandishing the (emphasis supplied). when used this con When power.6 In exercise purporting text, phrase “clearly has a established” any indicia of state additional absence meaning. It denotes that at the well-defined action, that the unauthorized use we believe challenged conduct occurred the time the attenu- government-issue weapon is too sufficiently plain right were contours of the together a a link to hold section ated reasonably actor prudent would 818-19; Barna, 42 F.3d claim. See merely that his conduct have realized not 9; Bonsig Payne, n. see also 559 F.2d at 825 partic might wrong, but that it violated a be (2d of N.Y., City nore v. right. ular constitutional See Anderson v. Cir.1982) (holding that a officer who Creighton, 483 U.S. using a and killed himself wounded wife (1987); Buenrostro carry be gun which he was authorized Cir.1992). Collazo, 973 F.2d The “was not cause his status as an officer of a constitutional inquiry into the nature law since his acting under color of state ascertaining right purpose for clear perfor not ‘committed actions were seeks to discover whether the establishment duty,’ pretended mance of actual or reasonably right well settled at the time was person performed [his] ‘in the ambit were challenged conduct and whether Screws, pursuits’”) (quoting 325 U.S. at al right related to the manner which the Johnson, 1040; F.Supp. 65 S.Ct. at Wiley Doory, apparent. conduct See 937). (4th Cir.1994) (Powell, J., mounting sitting by designation). if a add an esehatocol of sorts. Even We require that state conceivably inquiry, neither to intervene courts constitutional facts, trajec- faultlessly anticipate the future dragooned from these then in actors could be aggressor believe that the with the im- 6. Had Martinez been a civilian rather than and, turn, officer, forgo primatur significance of the state exer- fellow of Valentin's uni- cising legal rights. weapon purposes The facts in this case are form and of the color-of- congruent hypothesis. campaign might greater. well have been with this law determination See, Gutschenritter, patently e.g., mounted was of terror that Valentin Jones v. nature, (8th Cir.1990) unquestionably (observing pres- personal in and Martinez 1212-13 that the much; indeed, there was not the ence a uniformed and armed officer realized as slightest may reasonably Valentin's conduct was civilian to refrain from indication that cause a rights). pursuant taking when undertaken to the of his of- action to his But Plainly, away the fact that Martinez walked victim is himself a fellow officer and the fice. the not intim- particular the two officers is numerous times shows that he was "so interaction between nature, policeman generally by distinctively personal idated" Valentin's status as a "as of a it can exercising legal aggressor’s trap- refrain from official to cause him to be assumed more, right[s].” pings, the victim to Id. at 1212. without will not lead Crooker, law, liability § 5 F.3d at 585 for U.S.C. 1983. tory of the He is wrong. “expected (noting actor is not. to state ball”), crystal permit carry a nor claims beyond It peradven is established immunity to turn on eventual qualified ture that a state actor’s failure to observe a problematic constitu of a hitherto outcome duty by alone, imposed standing state see, analysis, e.g., Collins Marina- tional not a sufficient foundation on which to erect Cir.1990)

Martinez, See, Amsden, e.g., claim. section 1983 is entitled (recognizing plaintiff that “a who 757; Chongris, F.2d at 811 F.2d at 42-43. necessarily prevail on the merits is to Although it signifi is true that constitutional qualified prevail to on the issue of entitled may cance attach to certain interests created Moran, immunity”); accord Amsden v. law, see, e.g., Chongris, (1st Cir.1990) (citing other (recognizing “property rights, while denied, cases), cert. 498 U.S. Constitution, protected by the federal are (1991). 713, 112 L.Ed.2d 702 law”), every transgres creatures of state duty sion of state law does double as a Here, no there can be doubt constitutional violation. The Constitution is maiming moment the of Martinez materi carefully rights a charter of enumerated and alized, legitimate questions abounded as to responsibilities, defining relationship be whether the conduct at issue violated Mar people government tween the and a limit all, rights. tinez’ constitutional After DeSha powers. scope application ed Its and are decided; thus, ney yet had not been necessarily determined its own terms. duty question of a constitutional to whole Though grand design eloquent in its uncertainty. intervene was cloaked Even phrasing, empty its the Constitution is not an now, guidance with the furnished the De- ledger awaiting entry aggrieved of an Court, precise Shaney contours of the litigant’s alleged recitation of state law viola applies to onlooker officers are rule as it egregious tions —no matter how those viola murky. Consequently, even if 'Martinez had may appear legal tions within local for a claim that the some basis defendants framework.8 duty grounded him a in the Constitu owed Moreover, while the states that tion, right dimly were the dimensions of constitutionally pro- section 1003 creates a (if all). It perceived perceived at follows Regents tected “entitlement” under Board of inexorably that would be enti the defendants Roth, 564, 576-77, 92 S.Ct. and, hence, immunity qualified enti tled to 2708-09, (1972), 33 L.Ed.2d 548 he does not disposition. tled to brevis develop how the thesis —and we do not see applies. nor its Roth Neither Roth’s focus D. Theories. Other any similarity procedural design bears principal process In addition to his due thing, For one the Roth case at hand. claim, advances several other theo- conception cognizable of a constitu- Court’s unavailing. All We mention three ries. property tional entitlement was limited to fur- (rejecting of them the remainder without Kelly, (citing Goldberg id. interests. See elaboration). ther (1970)). supports 1. Violation of Local Law. Martinez fail to intuit how Roth We urges provi- plaintiffs breach of a that he had an entitle- that the defendants’ claim Code, ment, protect- pursuant to section to be sion of Puerto Rico’s Civil P.R.Laws (1980),7 thing, physical person. § For another Ann. tit. furnishes a basis ed duty part po- inter- provides pertinent 8. The absence of a constitutional statute duty way lice officers have a detracts from the callous nature vene no in this protect persons property, the conduct attributed to the officers to maintain of case, order, keep public imply to observe and nor does that onlooker protection utmost of the civil secure the by private violence not have confronted citizens, prevent ... ... crime and quite question, to intervene. That state law obedience the laws.... enforce opinion. beyond simply, the borders of this lies P.R.Laws Ann. tit. Liability. Supervisory Finally, the contemplated by 3. framework the remedial Trinidad, if not hable plaintiff maintains process, principally procedural due Roth — officer, as an onlooker under section 1983 hearing, see id. at of notice and a the form may qua supervisor shift be held liable 577, applicability at at 2709—has no 92 S.Ct. liability “Supervisory at acts. Valentin’s remonstrance. Whatever all to Martinez’ plaintiff can demonstrate case, taches if a it is plague this other uncertainties evidentiary quality an affirmative material of claiming a substantive clear that Martinez supervisor’s conduct and violation, link between the procedural not a due process due Amsden, violation.” Mal See, underlying section 1983 e.g., 904 the process violation. differences). Castillo-Rodriguez, v. 23 F.3d donado-Denis (delineating at 753-54 F.2d (1st Cir.1994); 576, see also Febus-Rod hole, sum, and Mar- Roth is a round Betancourt-Lebron, 87, 14 F.3d riguez v. not fit within square peg of a case does tinez’ (1st Cir.1994); Gutierrez-Rodriguez v. Cart it. (1st Cir.1989). Be agena, 882 F.2d Equal Protection. underlying violation no constitutional cause that he was denied occurred, III(C), makes the bold assertion no supra see Part fact Equal Pro- lights to him under the secured supervisory liability can be attributed to because, private were he a tection Clause 1983.11 Trinidad under section citizen, would almost certain- the defendants does not

ly have come to his rescue. He IV. CONCLUSION any way.9 Conse- ipse dixit embellish go Because the de- “It need no further. quently, it not assist his cause. is We does to intervene and adverted to fendants’ failure in this circuit that issues settled actions, manner, private plaintiff against perfunctory in a unaccom- Valentin’s appeal on though regrettable, be said to developed argumentation, cannot have panied by some plaintiff by Ryan violated secured to to have been abandoned.” are deemed Constitution, Am., DeShaney, Royal 916 F.2d 734 United States Ins. Co. of 1003-04, (1st 196-97, Cir.1990); v. Zan 489 U.S. at 109 S.Ct. accord United States (1st denied, nino, Cir.), summarily district court did not err dis- F.2d cert. And, posing of the federal claims. once the 110 S.Ct. 108 L.Ed.2d Marina-Martinez, (1990); so far in advance of trial 894 court determined Collins Cir.1990). existed, legitimate question that no federal 481 n. 9 So jurisdictional plaintiffs pendent plaintiffs fleeting reference to basis for here: preserv- evaporated. Puerto Rico law equal protection does not succeed in claims under Brennan, Thus, 888 F.2d at 196. ing the issue for review.10 See Co., (9th economy on the Amoco Chem. 9. This criticism rests neither Cir.1991) potential (finding on inco- fopdistinguish- Martinez' asseveration nor herence, but, rather, its basis rational utter ing public on the lack between and private_tortfeasors claim; legal provided foundation for the Mar- damages); regard recovery punitive South provi- States, to no constitutional tinez makes reference sion, ern Cal. Edison Co. v. United treatise, statute, no case no no (9th Cir.) equal (noting '.'under legal Parties to con- even a law review article. protection separate clause the .classification allege unsupported troversies must do more than Tong privately publicly owned utilities has summary judgment; they facts to survive must at denied, justifiable”), been held cert. for, very explain legal the basis and the the significance least It is this of, those facts. very public private versus un- distinction— —that dergirds only DeShaney but also the Bill of colleague dissenting 10. To extent that our Rights itself. proposes nonintervention defendants’ rational, post pp. cannot be deemed see. 992- 11.Moreover, supervisor Trinidad was not the way disagreeing merely this is another (during Valentin's shift which Martinez was conduct was with our conclusion that Valentin's shot), but, rather, subsequent 4:00 a.m. to public. larger private, not for the issue of As Thus, 12 noon shift. it is far from clear that drawing distinctions between the and the supervisory liability theory would be a viable vis- public, simply note that such distinctions underlying regularly validly legis a-vis Trinidad even if an constitution- drawn courts See, e.g., Water al could be shown. latures alike. Westlands Dist. violation finger through of the a hole in Martinez’s properly dismissed balance under- court ripped open. shirt and the shirt complaint.12 The record not does disclose whether words were AFFIRMED. spoken juncture. put at this Martinez his BOWNES, Judge, Senior Circuit police reported uniform on to his shift dissenting. supervisor, defendant Trinidad. follow, join I cannot For the reasons A again short time later Valentin assaulted majority opinion. I the facts. start with Martinez. This assault was similar to the majority’s recitation is Although the factual confrontation, first but with an ominous inaccurate, portray- it is not a full-bodied pushed threat. This time Valentin the muz- happened. al of what zle of his loaded and cocked revolver into the pants front of Martinez’s and threatened to I. away” penis. “blow Martinez’s Valentin then asked Martinez if he was scared. After Va- Plaintiff, Martinez, young (age twen- was weapon, lentin withdrew the Martinez moved ty) comparatively new member of the away from him. day Puerto Rico Police Force. On the case, giving rise to this he arrived at events later, minutes, A short time within Valen- police sufficiently early giv- to be station again tin Martinez. accosted He loaded and duty assignment. parked en his his revolver and then inserted it cocked into police parking got his car in the lot. He out pants the front of Martinez’s while continu- police of his car and started towards the ing verbally abuse him. The charade end- day. get station to his orders for the There discharged. ed when Valentin’s revolver Va- police were four other the lot: the prior reality; lentin’s threat became a Mar- Colon, Vélez and Trinidad —and defendants — penis away tinez’s was fact blown and he Valentin, who is not a defendant. As the permanently impotent. was rendered were, majority acknowledges, the defendants majority shooting calls the The accidental times, at all offi- relevant says, parties agree shooting “All that the acting cers and under color of state law. ... was unintentional.” Ante The three defendants observed the events not, shooting Whether the was accidental parking place took lot and the concluded, it can be based on Valentin’s denigrat- station and heard Valentin’s actions, words and that it was an accident ing remarks to Martinez. None of the defen- happen. that was bound to What Valentin stop dants asked Valentin to his verbal and par- did makes Russian roulette seem like a physical against put it assaults Martinez. To game. lor starkly, they stood and watched without protest away” pe- Valentin “blow Martinez’s II. nis. majority’s premised holding central lot, parking As Martinez walked across the ruling acting on a that Valentin was defendants,

Valentin said to the “Here comes view, my under color of state law. Pretty Boy.” Valentin then accosted Mar- light facts taken most favorable tinez, revolver, pointed it drew his service plaintiff establish that it, area, directly genital at Martinez’s cocked color of state law. put finger trigger, asked Martinez “ afraid, majority points out: tradi- ‘[T]he he was and then lowered the revolv- As the er. Martinez told “Don’t horse tional definition of under color Valentin: you requires have exer- around with that because will kill me.” law that the defendant proceeded power possessed of state law Martinez then into the station cised virtue wrong- again possible A and made because the house. short time later Valentin Martinez; pushed confronted this time he doer is clothed with RTC, course, operates prej- 12. Of the dismissal without Puerto Rico. See Feinstein rights plaintiff may (1st Cir.1991). udice to whatever prosecute have to pendent claims in the courts of (quoting have believed that the Commonwealth Ante at 986 West v. At well state.’” kins, 2250, 2255, acquiesced in actions. 42, 49, Valentin’s 108 S.Ct. 487 U.S. (1988)) (ellipses and internal acting Because Valentin was under color of omitted). stated, Simply “a quotation marks pellucid DeShaney state I think it that law “whenhe person acts under color of state most, DeShaney not bar this suit. At does ” by given him the position abuses the State.’ precludes against actions state civil West, 50, 108 at at (quoting Id. 487 U.S. Due Process Clause for actors 2255). power I think that Valentin exercised against -pri- failing to an individual of Puerto Rico law and possessed virtue at 109 S.Ct. vate violence. See possible only he was made because clothed DeShaney majority pains at 1004. The took Rico, authority of Puerto and that with the distinguish to the case before from situa- power. he abused that itself, through its own tions where the state prior complained-of- affirmative action disregard if I the obvious—that Va- Even non-intervention, limited the victim’s free- uniform, duty, police on in the lentin was 198-201, dom. Id. at 109 S.Ct. at 1004-06 station, and used his service revolver to com- (contrasting situations where the state has (all heavily mit of militate the tort which custody of and taken certain individuals finding a abused his favor of Valentin thereby responsibility incurred “some officer) position police a believe that as —I Here, safety well-being”). [their] status as a officer was the Valentin’s Commonwealth, acting through person of only reason the defendants took no action. Valentin, compromised Martinez’s freedom If had a Valentin been citizen by successively assaulting him three times tormenting had been the same West, service loaded revolver. See manner, bystander certainly officers my In 487 U.S. at 108 S.Ct. at 2255. gives would have intervened. The record view, infringement than this was more suffi- rise to reasonable inference Valentin’s support cient to Martinez’s substantive due police-officer bystander offi- status led the process DeShaney, claim. (1) to that: cers conclude Valentin was not (“In at 1006 the substantive due mentally point unbalanced to the that he analysis, process it is the affirmative State’s Martinez, actually might shoot stable restraining act of individual’s freedom person engaged in harassment or horse- incarceration, through act his own on behalf — (2) play; enough Valentin was skilled institutionalization, or other similar restraint engage in with firearms to be allowed to this personal liberty ‘deprivation is the —which stupidity. Consequently, sort of the record liberty’ triggering protections of the gives an rise to inference that Valentin’s Clause.”). Due Process police-officer qua status was a sine non of important I believe it comment three bystander In officers’ non-intervention. parts majority opinion. discrete The view, my this inference establishes Va- majority concedes that Valentin’s use his lentin under color of was state law. might arguably bring service revolver actions within the color of state law. Ante at majority suggests that Martinez’s sta- rejected grounds: 987. This then two tus as a officer somehow reduced the that it not raised in court the district perceived likelihood that Martinez brief; plaintiffs appellate and on the merits. imprimatur to be with the of the Com- why help I cannot but wonder the straw man monwealth. See id. at 988 n. 6. I believe event, approach disagree was used. I opposite likely conclusion at least as grounds. on both (includ- bystander be true. After the Trinidad, construed, ing authority) Fairly supervisory argument who had Martinez’s during on-duty police failed to intervene the initial rounds that Valentin’s status as an Valentin, incorporates of abuse Martinez could well officer made him a state actor type hazing argument have concluded that Valentin used the indicia young (including officers was standard fare in the Loiza and tools of his trade his service revolver) Therefore, me, carry shooting. Street Precinct. Martinez could out the For enough to us to for affirmance in this case. more than allow See id. 988- this is use of his service revolver consider Valentin’s determining whether he was a a factor in doctrine, qualified immunity Under actor. “government performing officials discretion- ary generally funetions[] are shielded from majority’s I am troubled am also liability damages for civil insofar as their equal pro-

finding that Martinez waived clearly conduct does not violate established at As an initial tection claim. Id. 989-90. statutory or constitutional of which a matter, important state that the I think it person reasonable would have known.” Har How, appears claim to have some substance. 800, 818, 102 Fitzgerald, low v. 457 U.S. S.Ct. all, bystander for after can it be rational 2727, 2738, (1982). In deter simply one officers not to intervene because mining right “clearly whether a was estab opposed to a civilian—is of their own—as time, point at the lished” relevant courts legiti- being victimized violence? What analyze appropriate must it at the level objective could such inaction mate state Thus, specificity. right “clearly is not es serve? qualified immunity purposes tablished” for majority sufficiently The finds that Martinez aban- unless its contours are clear so this claim because he failed to “embell- “that a doned reasonable official would understand sufficiently. doing right.” Id. I do not think that that what he is ish” violated that any embellishing. 635, 640, 107 It Creighton, issue needed was Anderson 483 U.S. equal protection claim and called an stated S.Ct. L.Ed.2d 523 relatively clearly: “If had been a Wilfredo majority suggests The that Martinez’s citizen, it seems clear that defen- right bystander to have the officers intervene they dants-appellees would have realized that uncertainty” his behalf was “cloaked obliged protect him were under the law “murky” at the was time of the relevant damages.” Appel- from of serious the threat disagree. majority events. I As the con- view, my at In this was lant’s Brief cedes, it was at settled the time of the events put sufficient to the claim issue. in this case that present officer who is at the scene [a]n [of Finally, important I think it to refute the arrest] an and who fails to take reasonable majority’s suggestion might Valentin steps the victim of another offi- acting color of state law have been can cer’s use excessive force be held even Martinez had been a civilian. Ante liable under section 1983 for his nonfea- (“Had 988 n. 6 Martinez been a civilian rath- sance, provided that he had a realistic officer, significance er than a fellow opportunity prevent the other officer’s weapon purposes uniform Valentin’s actions. might of the color-of-law determination well (citations quotation Ante at 985 and internal greater.”) (emphasis supplied). I have been omitted). my view, marks this line of suggestion If find the a civilian remarkable. authority controls here. experienced had suffered the abuse Martinez on-duty, at the hands of an majority distinguishes precedent uniformed using his service revolver in by suggesting inapplicable that it is where front of officer station, other in a well-settled acting under the the tortfeasor officer is finding precedent would dictate a law, and then concludes that color of state civilian was under color of state victimized was not here. For the so (and law. should not even hint that this We despite explained reasons I have above not be so. I opinion my colleagues), esteemed do objectively po-

not think that an reasonable could seen Valentin’s actions lice officer have III. purely private. And because Valentin agree majority’s I under the color of state the afore- also cannot with the unargued qualified authority was sufficient to have conclusion that an immu- mentioned obligation to nity theory provides ground an alternative informed defendants of their Martinez’s behalf. See intervene

Anderson, at 3039

(“This say that an official action is is not to immunity by qualified unless the

protected question previously has been

very action in unlawful, say light it is to

held pre-existing law the unlawfulness must be omitted). (citation If excessive

apparent.”) during course of a lawful arrest

force intervention, an as-

requires so too should deadly weapon taking place dur-

sault with a entirely sei-

ing course of an unlawful majori- disagree zure. I therefore immunity analysis.

ty’s qualified

IV. great entrusted with

Police officers are privileged

powers including the use of — very purpose preventing force—for the an officer

lawless violence. When abuses peers, powers in front of his he

those acquiescence, tacit presumes

effect their situation, outright approval. In this duty to

other officers have a constitutional respectfully I therefore dissent.

intervene. America, Appellee,

UNITED STATES ALZANKI, Defendant, Appellant.

Talal H.

No. 94-1645. Appeals,

United States Court

First Circuit.

Heard Nov. 1994.

Decided June

Case Details

Case Name: Wilfredo Martinez, A/K/A Wilfredo Martinez Rodriguez v. Rafael Colon, A/K/A Rafael Colon Pizarro

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 20, 1995

Citation: 54 F.3d 980

Docket Number: 94-2138

Court Abbreviation: 1st Cir.