USCA1 Opinion

UNITED STATES COURT OF APPEALS

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

_________________________

No. 94-2138

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

Plaintiff, Appellant,

v.

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

Defendants, Appellees.

__________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

___________________

__________________________

Before

Torruella, Chief Judge,

___________

Bownes, Senior Circuit Judge,

____________________

and Selya, Circuit Judge.

_____________

__________________________

John E. Mudd,
_____________

with whom

Howard Charles
______________

and Ortiz Toro &

_____________

Ortiz Brunet Law Offices were on brief, for appellant.

________________________
Edgardo Rodriguez-Quilichini, Assistant
_____________________________

Solicitor General,

with whom Pedro Delgado Hernandez, Solicitor General, and Carlos

________________________
______

Lugo Fiol,
__________

Deputy

Solicitor

General,

were

on

brief,

for

appellees.

_________________________

May 31, 1995

_________________________

SELYA, Circuit

Judge.

This appeal

raises interesting

SELYA, Circuit Judge.

______________

questions

about the contours of 42 U.S.C.

reach

the

of

Supreme

Court's

core

1983 (1988) and the

holding

Winnebago County Social Servs. Dep't, 489

________________________________________

Concluding, as we do, that the court

DeShaney,
________

we

affirm

the

entry

of

in

U.S.

DeShaney
________

189

v.

(1989).

below appropriately applied

summary

judgment

in

the

defendants' favor.

I.
I.

BACKGROUND
BACKGROUND

Consistent

with the method of

Fed. R. Civ.

P. 56, we

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

impermissibly distort,

the plaintiff's claims.

the travel of the case.

A.

The Facts.

We then recount

A.

We outline

which

our dissenting

these

details

The Facts.
_________

the facts, omitting the

brother prefers

are not

relevant to

graphic details on

to dwell.

the

In

our view,

legal issues

posed on

appeal.

In the early morning hours

appellant

Wilfredo Martinez

member of Puerto Rico's

Precinct,

located in

of May 26, 1988, plaintiff-

Rodriguez

(Martinez),

police force, drove to the

the

San Juan

youthful

Loiza Street

metropolitan area.

Though

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

arrived

post

moment

that

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

assignment.

he arrived

point

Martinez alleges that he

even before his shift

forward he

was

subject

to

was on duty from the

began

because from

the shift

commander's

orders.

Upon

duty at

Martinez' arrival,

the time,

a fellow

Angel Valentin Corali

officer who

was on

(Valentin), approached

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

When

Martinez alighted, Valentin drew his service revolver, pointed it

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

trigger,

and

disarmed

the weapon,

first telling

inquired if

Martinez was

and Martinez

Valentin:

"Don't

afraid.

Valentin then

hurried inside

the station,

horse around with

that because

you will kill me."

Shortly

after

accosted Martinez in the

small hole in Martinez'

Martinez walked away

uniform, entered

this

fracas

had

occurred,

Valentin

radio room, inserted his finger

undershirt, and ripped it.

from Valentin.

the waiting

He then

room, and

into a

Once again,

changed into

reported

to his

his

shift

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

Soon

thereafter,

Valentin

revolver at Martinez' genitals, cocked

reappeared,

pointed

his

the hammer, and, with his

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

penis

(asking

him, somewhat

rhetorically, if

he was

scared).

When

Valentin lowered the weapon, Martinez immediately moved away from

him.

the

Within minutes Valentin again

revolver,

taunting.

aimed

The

it

approached Martinez, cocked

at Martinez'

revolver

groin,

accidentally

and

resumed his

discharged,

maiming

Martinez.

The

first

encounter

took

place

in

the

precinct's

parking lot and

the rest transpired

According to Martinez, roughly

to finish.

All

inside the police

station.

twenty minutes elapsed from start

parties agree that the shooting,

which occurred

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

B.
B.

On

district

May

court

22,

Travel of the Case.

Travel of the Case.
__________________

1989,

against

Martinez

numerous

filed

suit

defendants,

in

federal

including,

as

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

(Velez),

and

Trinidad

defendants").2

jurisdiction

U.S.C.

(collectively, "the

Invoking

on the

1331

42

existence

(1988), he

U.S.C.

of a

alleged

officers"

1983

federal

that

his

and

or

"the

premising

question, see
___

rights had

28

been

abridged in that each

protect

him

fellow

from readily

officer,

subsequent

defendant owed him a duty to intervene and

but

each

inaction.3

with respect

to

discernible harm

defendant

Martinez

all

three

at

the hands

breached

asserted

defendants

this

duty

pendent tort

and,

with

of a

by

claims

respect

to

____________________

1In

his memorandum of law

defendant

Carlos Lopez-Feliciano's

stated that
Appendix

in support of
motion to

his opposition to

dismiss, Martinez

"the revolver apparently fired by accident."

at

21.

At

any

rate,

the

Record

summary judgment

record

contains no facts that would support a contrary finding; and, for

aught

that appears,

Martinez has

never asserted

that Valentin

shot him intentionally.

2Plaintiff asserted claims against several other defendants,

including

Valentin and

Lopez-Feliciano.

Those claims

are not

before us, and we ignore them for purposes of this opinion.

3Although
assume
that

the underlying

for purposes of this

all three

facts

are

hotly

appeal, as Martinez

defendants witnessed

the entire

contested,

we

would have it,

progression of

events and had a meaningful opportunity to intervene at each step

along the way.

Trinidad,

asserted a

section

1983 claim

based on

supervisory

liability.

After

moved for

flurry of

summary

judgment.

pretrial

They

Valentin was not acting under color

discovery,

argued,

inter
_____

the officers

alia,
____

that

of state law when the mishap

occurred; and that, therefore,

constitutional

district

duty

court

to

onlooker officers did not have

intervene

referred

the

motions

opposition to a magistrate judge.

under DeShaney, the officers

________

accepted

accordingly.

II.
II.

the

timely

actions, and urged the district

The plaintiff objected

recommendation, but the

affording de novo review, see Fed. R. Civ.

__ ____
___

report,

Martinez'

The

had no constitutional obligation to

judgment.

magistrate's report and

and

behalf.

The magistrate concluded that,

protect Martinez from Valentin's

court to grant summary

on Martinez'

recommendation,

to the

district court,

P. 72(b), adopted the

and

entered

judgment

grant summary judgment

only "if

This appeal followed.

THE SUMMARY JUDGMENT STANDARD

THE SUMMARY JUDGMENT STANDARD

A district

court may

the

pleadings,

depositions,

answers

to

admissions on

file, together with

that there is

no genuine issue as to any

the

Fed.

moving party is entitled to a

R. Civ. P.

rule in case after

56(c). We have

interrogatories,

the affidavits, if

and

any, show

material fact and that

judgment as a matter of law."

charted the boundaries

case, see, e.g., Coyne

___ ____ _____

of this

v. Taber Partners I,
_________________

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

National Amusements, Inc.

_________________________

v. Town of Dedham, 43
_______________

F.3d 731,

735

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

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

_________
_______

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

___
__________________________

(1st Cir.

1993); Pagano v.
______

1993); Wynne
_____

Frank, 983 F.2d

_____

343, 347 (1st

v. Tufts Univ. Sch. of Med., 976 F.2d

_________________________

(1st Cir. 1992),

cert. denied,
_____ ______

113 S. Ct.

Cir.

791, 793-94

1845 (1993);

United
______

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

______
_____________________________ ________________________

Shoreham, R.I.),
______________

960

F.2d 200,

204

Muriente v. Agosto-Alicea, 959 F.2d

(1st Cir.

1992);

Rivera_______

349, 351-52 (1st Cir. 1992);

________

_____________

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,

____________
__________________________

Cir. 1990); Garside v.

_______

Cir.

Osco Drug, Inc., 895 F.2d 46,

_______________

7-8 (1st

48-49 (1st

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

_______
_________

1989), and

it would

serve no

useful purpose

to draw that

map

anew.

For

present purposes,

summary judgment will

material

352, fails

fact.

say no more

lie if the record, even when

aspect most favorable to

F.2d at

we need

to

than that

taken in the

the nonmovant, see Rivera-Muriente, 959

___ _______________

yield a

In applying

trialworthy

issue as

this principle, it

to

some

is important to

bear in mind that not every genuine factual conflict necessitates

a trial.

It is

only when a disputed

fact has the potential

to

change the outcome of

the

the suit under the governing law

favorably

to

nonmovant

that

cleared.

See One Parcel, 960

___ ___________

the

materiality

F.2d at 204.

reflects a veritable salmagundi of bitterly

Here,

if found

hurdle

is

the record

disputed facts

but

none that is material.

To

that

extent,

then,

our

task

is

simplified.

Exercising

de
__

adopting the

not,

novo review,
____

plaintiff's version of all

however,

improbable

see Pagano,
___ ______

giving

credence

inferences,

Munoz, 896 F.2d

_____

[or]

to

983

F.2d at

347, and

controverted facts (but

"conclusory

allegations,

unsupported speculation,"

at 8), we conclude that the

Medina_______

court below did not

err in jettisoning the section 1983 claims.

III.
III.

ANALYSIS
ANALYSIS

There

section

committed

1983:

are two

"(i)

essential elements

that the

under color of state

conduct

of an

action under

complained of

law, and (ii)

has been

that this conduct

worked a denial of rights secured by the Constitution or laws

the

United States."

of

Chongris v. Board of Appeals, 811 F.2d 36,

________
_________________

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

Atkins, 487 U.S.

______

327,

42, 48

330-31 (1986).

cannot

(1988); Daniels v.
_______

Of

course, the

of statehood

in regard

state law includes Puerto Rico law.

Public Serv. Comm'n of P.R., 906

_____________________________

535

reference to

U.S.

"state law"

be taken literally, for Puerto Rico enjoys the functional

equivalent

cert.
_____

Williams, 474
________

denied, 498 U.S. 959

______

F.2d 1330, 1331 n.3

to section

1983 and,

thus,

See Playboy Enters., Inc. v.

___ _____________________

F.2d 25,

31 n.8

(1990); Berrios v.
_______

(1st Cir.), appeal

______

(1st Cir.),

Inter Am. Univ.,

_______________

dismissed, 426 U.S.

_________

942 (1976).

For

contest the

purposes of

this

appeal, the

plaintiff's allegation that, at

defendants do

not

all relevant times,

the

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

This concession

reduces our inquiry to whether

the facts, taken

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

defendants violated

the

a right secured

Constitution or by federal law.

alleged the transgression

of any

to the plaintiff

either by

Since the plaintiff has not

right secured to

him under

federal

statute,

limiting

it

we

to

may

narrow

whether

constitutional right.

the

It is

the

facts

inquiry

show

still

to this elusive

further,

violation

of

question that

we

next proceed.

A.
A.

The Duty to Intervene.

The Duty to Intervene.
_____________________

Plaintiff pins

the defendants'

failure to protect

posed by Valentin

The

service

law in this

in DeShaney.
________

U.S.C.

There,

1983, claiming

agency,

nonetheless

principally on a

him from the

claim that

imminent peril

abridged his right to substantive due process.

touchstone of the

opinion

his hopes

on

failed

a child sued

that employees

notice

to

area is

of

protect

for damages under 42

of a

parent's

the

the Supreme Court's

child

state-run social

abusive

from

the

behavior,

readily

foreseeable danger.

affirmed

the entry

See DeShaney, 489

___ ________

of

U.S. at 193.

summary judgment

The Court

in defendants'

favor.

Chief Justice Rehnquist, writing for the majority, explained that

the Due Process Clause

protect

the

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

See
___

at

196.

individual's life,

limb,

Consequently, "a

or

state to

property against

id.
___

an

ordinarily does not require the

State's

individual against private violence

failure to

protect an

simply does not constitute a

violation of the Due Process Clause."

Although the

of

certain

does not

DeShaney Court left open

________

circumscribed

nonliability,

exceptions

of

Martinez makes no effort to slide within them.

He

incarcerated

(discussing right to

prisoners

and

to the

the possibility

rule

argue that he was in the

at 198-200

Id. at 197.
___

general

custody of the state, see id.

___ ___

protection arising in

involuntarily

committed

favor of

mental

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

___ ___

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

incarceration or institutionalization),

him

more

vulnerable to

Valentin's

or that

actions,

the state

see id.
___ ___

at

made

201.

Rather, Martinez contends that DeShaney is altogether inapposite.

________

To the extent

solely

are

that this contention is based simply and

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

________

police officers,

course,

intervene

not

police officers

social workers,

sometimes have
_________

we

reject it.

an affirmative

Of

duty to

that is enforceable under the Due Process Clause.

For

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

and who fails

to take reasonable steps to protect

the victim of

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

section

1983

for

his

"realistic opportunity"

nonfeasance,"

provided

to prevent the other

that

he had

officer's actions.

Gaudreault v. Municipality of Salem, 923 F.2d 203, 207

__________
______________________

Cir.

n.3 (1st

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

_____ ______
______ _______

Krzeminski,
__________

839 F.2d 9, 11-12 (2d Cir.

cases does not,

1988).

But this line of

as plaintiff importunes, carve out

an exception

to

the DeShaney
________

rule.

Instead,

such

cases escape

the

rule

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

Gaudreault illustrates the point.

__________

specifically

take

contemplates that

place within the

similar

precisely

enforce

the underlying

context of

an arrest,

maneuver, see Gaudreault, 923

___ __________

which a differential

because of

the law,

exists between the

the latter's

coercively if

Similarly, O'Neill involved

_______

The quoted statement

tortious conduct

interrogation, or

F.2d at 206-07

& n.3, in

victim and the

status

as one

necessary, against

the beating of

officer

empowered to

the former.

a handcuffed man

by

law enforcement officers during an interrogation in the detention

area of

a police station.

cannot imagine

a more

See
___

O'Neill, 839
_______

paradigmatic exercise of

F.2d at

10.

We

state authority

than the processes of handcuffing, detaining, and interrogating a

citizen.

Gaudreault and O'Neill,

__________
_______

then, are cases

aggressor is acting under color of

which addresses

against private
_______

state law.

The DeShaney rule

________

the "State's failure to protect

violence," DeShaney,
________

in which the

an individual

489 U.S. at

197 (emphasis

supplied)

is not implicated in such cases because the violence

in question

is not private

but "public," i.e.,

____

attributable to

state action.4
____________________

4A

constitutional

duty

to

onlooker

officers

are

attacker

to place

the victim

e.g., Byrd
____ ____
DeShaney,
________

v. Brishke,
_______
489 U.S.

constitutional

instrumental
in a

466 F.2d

at 201

duty to

intervene may
in

also

assisting

arise
the

actual

vulnerable position.

6, 9-11

protect against

See,
___

(7th Cir. 1972);

(recognizing a

if

cf.
___

possible affirmative

certain dangers

if the

state takes "part in their creation" or does something "to render

[the

victim] more vulnerable to them").

In such a scenario, the

onlooker officers and the aggressor officer are essentially joint

10

Private violence

one

who happens

to work

ramifications than

e.g., Hughes v.
____ ______

even

for the

private violence engaged in by

state

has

different legal

violence attributable to state

Halifax County Sch. Bd., 855

________________________

action.

F.2d 183,

See,
___

186-87

(4th

Cir.

1988)

(distinguishing

maintenance workers

of were committed

under

from cases in which

while the

the authority

otherwise

made

private

vested

possible

actions

because

them

county

"the actions complained

defendants were

in

of

by

of the

purporting to

the

state,

privileges

act

or

of

were

their

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

_____ ______

Thus we

district attorney's

recently held,

office had no

in light

of DeShaney,
________

that a

constitutional obligation

to

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

noncustodial suicide) alleged to have been caused

implication of him in a multiple murder case.

___ F.3d

11].

___, ___ (1st Cir.

Interpreting

DeShaney
________

by the state's

See Souza v. Pina,

___ _____
____

1995) [No. 94-2079, slip

to

say

that

the

state

op. at 9-

has

no

generalized

duty to

protect its

citizens from

violence except

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

setting),

see id.
___ ___

at ___ [slip

op. at

9], we

although the state's acts may have "rendered [the

vulnerable

to danger

in

the sense

that

concluded that,

decedent] more

those acts

may

have

____________________

tortfeasors

and,

responsibility.

therefore,

may

incur

shared

constitutional

See generally Monroe v. Pape, 365 U.S. 167, 187

___ _________ ______
____

(1961) (advising courts to read section 1983 against the backdrop

of historical tort liability).
any

Because there is no indication of

such joint enterprise here,

we have no

the viability of the theory.

11

occasion to explore

exacerbated

tendencies .

the

or even brought about

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

state that

protect."

[the decedent's] suicidal

Id.
___

would

at

give rise

___ [slip

op.

to

a constitutional

at 10]

(citing

Dorchester Counseling Ctr., Inc., 961 F.2d 987,

________________________________

duty

to

Monahan
_______

v.

992-93 (1st Cir.

1992)).

Translated to the police

when an on-duty police

vel non of
___ ___

milieu, these cases mean that

officer witnesses violence, the existence

a constitutional

duty to intervene

will most

often

hinge on whether

he is witnessing

attributable to state

action.

private violence or

It remains

to be

violence

seen how

and

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

B.
B.

In

attempting

violence attributable

sure,

violence

perpetrator

Earnest
_______

is

only

is

those

does not

caused

distinguish

by

private

violence from

action for purposes

of applying

must beware simplistic solutions.

attributable

acting under

v. Lowentritt,
__________

("Section 1983

to

to state

the DeShaney rule, courts

________

be

Private Action.
Private Action.
______________

690

color

F.2d

to

state

if

the

of

state law,

see,
___

e.g.,
____

1198,

1200 (5th

Cir.

1982)

reach all constitutional

persons

action

To

acting

`under

injuries, but

color of

state

law.'"),

but

construct

that is

virtual tautology.

Furthermore, the

"acting under color of state law"

rarely depends on

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

see, e.g., Stengel v. Belcher, 522 F.2d 438,

___ ____ _______
_______

441 (6th Cir. 1975)

(explaining

is

that whether

police officer

"in or

out

of

12

uniform

is

not controlling"),

cert.
_____

dismissed,
_________

429 U.S.

118

(1976),

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

___ ____ ________
______

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

off

duty

when

the

dispositive); Stengel,
_______

challenged

522 F.2d

incident

occurred"

at 441 (same),

is

not

or whereabouts,

see,
___

e.g., Delcambre v. Delcambre,

____ _________
_________

635 F.2d 407,

408 (5th Cir.

1981)

(per curiam) (holding that

a police chief's

assault on a

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

occurred at police

of

headquarters).

"acting under color

state law" depend on whether an officer stays strictly within

the line of duty, or oversteps it.

167,

Nor does

172 (1961);

(1945).

For

Screws
______

instance,

See Monroe v. Pape, 365

___ ______
____

v. United States,
______________

a police

officer

325 U.S.

who

U.S.

91,

111

exercises,

but

misuses or exceeds, his lawfully possessed authority is generally

thought to

be acting under color

of law.

See,
___

e.g., Gibson v.
____ ______

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

_______________

The point is that segregating private action from state

action

calls for

section

1983 is

a more

sophisticated analysis.

not implicated unless

a state

In

actor's conduct

occurs in the course of performing an actual or apparent

his office, or

unless the conduct is

general,

such that the

duty of

actor could

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

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

turns on

and

the nature and

circumstances of the

the relationship of that

official duties.

See Pickrel
___ _______

conduct to the

officer's conduct

performance of his

v. City of Springfield, 45
____________________

F.3d

13

1115,

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

_______
____________________

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

We think this focus follows inexorably from West, where

____

the

Court wrote

that

under color of state law

"[t]he traditional

definition of

acting

requires that the defendant . .

. have

exercised

power

`possessed

by virtue

of

state

law

and made

possible only because the wrongdoer is clothed with the authority

of state law.'"

Classic, 313
_______

color

the

West,
____

487 U.S. at 49 (quoting United States v.

______________

U.S. 299, 326 (1941)).

of state law "when he abuses

State."

Id. at
___

actor, at the time

capacity or

state law.

50.

the position given to him by

determinant is

in question, purposes

to exercise

official

whether the

to act in an

official

responsibilities pursuant

to

See id.
___ ___

Logically,

then,

person who happens to be a

state.

The key

Hence, a person acts under

not

every action

undertaken

by

police officer is attributable to the

Though "under `color'

of law means

under `pretense' of

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

personal pursuits" are

111;

see
___

also
____

not state

Gibson,
______

910

F.2d

action.

at

Screws,
______

1518.

325 U.S.

Accordingly,

at

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

by

any indicia of actual

or ostensible state

conduct occurring under color of state law.

Perth Amboy, 42 F.3d

___________

809, 816 (3d Cir.

See Barna v. City of

___ _____
_______

1994); United States

_____________

Tarpley, 945 F.2d 806, 809 (5th Cir. 1991),

_______

Ct. 1960

authority, is not

v.

cert. denied, 112 S.

_____ ______

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

_________
___________________

14

479

(9th Cir.

1991); Murphy
______

v. Chicago Transit Auth.,

______________________

638 F.

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

933,

937 (E.D. Pa.

1968).

Even

though "acting

law"

includes "acting under pretense

of law" for

under color of

purposes of a

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

conduct

officer's

is

not related

governmental

in some

status

meaningful

or

to the

way either

performance

duties.

C.
C.

Separating Wheat from Chaff.

Separating Wheat from Chaff.
___________________________

to the

of

his

Explicating the standard for segregating private action

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

Since the private conduct of police officers does

action attributable to

rise

to section 1983

must

determine whether

the state and,

therefore, does not

liability under DeShaney

________

Valentin,

at

not constitute

the

time

give

or otherwise, we

and

place

in

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

whether he was

acting under color

of state law.

To do so,

we

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

surrounding circumstances.

v.

See Pitchell, 13 F.3d at 548;

___ ________

Revene
______

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

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

______
_______

Here,

throughout

the

the

record

course

exercise, or purport to

of

is

transpicuously

Martinez' ordeal

Valentin

exercise, any power (real or

possessed by virtue of state law.

To

clear

did

that

not

pretended)

the contrary, Valentin was

15

bent

on

singularly

personal

frolic:

tormenting

an

acquaintance.5

as

Though on duty

police officer

harassment

and in uniform, Valentin's status

simply did

of his fellow officer.

not

enter into

Hazing of

his benighted

this sort, though

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

Nor

meaningful

can it be said that Valentin's actions were in any

way related either to

performance of his police duties.

the

resemblance to Delcambre.
_________

plaintiff, who

had been

his official status

or to the

In this regard, the case bears

There, the Fifth Circuit ruled that

assaulted on

the premises

of the

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

had no cognizable

635 F.2d at 408.

claim under 42 U.S.C.

1983.

See Delcambre,
___ _________

The assault arose out of a family squabble, and

the court found that the

police chief, though on duty, "was

not

acting

under color

[section 1983]."

To

revolver, and

of

law

as

required

for

liability

under

Id.
___

be sure,

Valentin shot

Martinez with

his service

in that sense it might be argued that the shooting

was made possible by Valentin's status

as a police officer.

See
___

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

that,

in "allegedly flourishing and threatening

against

to use his gun"

a coworker, the defendant acted under color of state law

because he "had authority or

power to carry the gun in

the jail

____________________

5To

use the

plaintiff's spoken

was "hors[ing] around";

or, as

characterization, Valentin

plaintiff put it

in his

second

amended complaint, "playing `Russian roulette' with another man's

genitalia."

16

only

because he

was

argument succumbs for

[the

a very

either in

county's]

elected jailer").

basic reason:

it

brief.

The argument is, therefore, not properly before us.

(stating

that

Slade, 980
_____

theories

not

court

plaintiff did

proffer

United States v.
______________

the district

This

F.2d 27,

briefed

or in

30 n.3

on

his appellate

(1st Cir.

appeal

not

are

See
___

1992)

waived);

Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline

____________________________________________________
_________

Transp. Co., 953

___________

is

settled

in

F.2d 17, 21 (1st Cir. 1992)

this

circuit,

it

extraordinary circumstances, legal

in

the

lower court

cannot be

is

that,

("If any principle

absent

theories not raised

broached for

the first

the

most

squarely

time on

appeal.").

Even if the

not embrace it.

every
_____

use of

argument were properly before us, we would

We do not think

a policeman's

it is reasonable to hold

gun, even in

personal pursuits, creates a cause of

the course

view that the context in which

revolver is

just the

consulted

to

determine

the

of purely

action under section 1983.

Instead, we are of the

used, not

that

mere fact of

constitutional

its use,

relevance

a service

must be

of

the

officer's conduct.

See Payne
___ _____

809, 825 n.9 (D.C.

Cir. 1977).

officer's use of a

state-issue weapon in the pursuit

activities

literal

will

sense,"

have

v. Government of D.C., 559

___________________

Consequently, "[w]hile

`furthered'

court

the

1983

needs "additional

a police

of private

violation

indicia

F.2d

of

in a

state

authority to conclude that the officer acted under color of state

law."

Barna, 42
_____

F.3d at 817-18 (holding that

17

"unauthorized use

of

a police-issue nightstick is

clearly

personal family

simply not enough

dispute

with the

to color [a]

imprimatur of

state

authority").

Here,

to

plaintiff has not

show that his

exercising

or purporting

absence of any

that the

to

unauthorized use

brandishing the

exercise police

additional indicia

attenuated a link

Barna, 42
_____

tormentor, when

produced any evidence tending

of state

power.6

F.3d at 818-19; Payne,

_____

In

action, we

of a government-issue

to hold together

firearm, was

believe

weapon is

too

claim.

See
___

a section 1983

559 F.2d at 825

the

n.9; see also

___ ____

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

__________
_____________

Cir. 1982)

(holding

that a police officer

who wounded his

himself

using a gun which he was

wife and killed

authorized to carry because of

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

since his actions were

not `committed in the performance

of any

____________________

6Had Martinez been a civilian rather than a

fellow officer,

the significance of Valentin's uniform and weapon for purposes of

the

color-of-law

See, e.g., Jones

___ ____ _____
Cir.

determination

have

v. Gutschenritter, 909 F.2d

______________

been greater.

1208, 1212-13 (8th

1990) (observing that the presence of a uniformed and armed

police officer may

taking

reasonably cause a

action to protect

himself a
the

might well

generally
without
aggressor
turn, to

his rights).

fellow officer and the

two officers is of
be assumed
more, will
is acting

civilian to refrain
But when

not

the victim is

particular interaction between

a distinctively personal
that the

aggressor's

lead the

victim

nature, it can

official trappings,
to believe

that

with the

imprimatur of

the state

forgo exercising his

legal rights.

The

case

are congruent with this hypothesis.

that

Valentin

mounted

Martinez unquestionably

was

the

and, in

facts in this

The campaign of terror

patently personal

in

realized as much; indeed,

the slightest indication that

from

nature,

and

there was not

Valentin's conduct was

undertaken

pursuant to the authority of his office.

Martinez walked away

numerous times

Plainly, the fact that

shows that he

was not

"so

intimidated" by Valentin's status as a policeman "as to cause him

to refrain from exercising his legal right[s]."

Id. at 1212.
___

18

actual

[his]

or pretended duty,' but

personal pursuits'")

were performed `in

(quoting

Johnson, 284 F. Supp. at 937).

_______

Screws, 325
______

the ambit of

U.S. at

111;

We

add

an

constitutional duty

eschatocol

of

sorts.

to intervene conceivably

Even

if

could be dragooned

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

the penumbra of DeShaney dictates that the defendants nonetheless

________

would enjoy

seeks

qualified immunity and, since

money damages,

affirmance on

the

appellant's suit only

defendants would

this alternative ground.

See,
___

be

entitled to

an

e.g., Garside, 895

____ _______

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

affirmed on any independently

the record).

We elaborate below.

"In analyzing a claim

are

sufficient ground made manifest in

concerned

with

of qualified immunity, . .

clearly established
____________________

statutory rights of which

constitutional

a reasonable officer would

. we

or

have known

at the time he took action."

(1st

Crooker v. Metallo, 5 F.3d 583, 584

_______
_______

Cir. 1993) (emphasis supplied).

When used in this context,

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

denotes

contours

that at

the time

of the right were sufficiently

prudent

state

actor would

conduct

might

be

wrong,

constitutional right.

640

(1987); Buenrostro
__________

1992).

the challenged

See
___

have

but

conduct occurred

merely

it violated

that his

particular

Anderson v. Creighton, 483 U.S.

________
_________

v. Collazo,
_______

the

plain that a reasonably

realized not

that

It

973 F.2d

39, 42

635,

(1st Cir.

The inquiry into the nature of a constitutional right for

19

the purpose of ascertaining clear establishment seeks to discover

whether the right was

challenged

reasonably well settled at the time of the

conduct and

whether

the manner

related to the conduct was apparent.

993,

995 (4th Cir.

actors faultlessly

see Crooker,
___ _______

sitting by designation).

courts may neither require that

anticipate the future trajectory

5 F.3d at

the right

See Wiley v. Doory, 14 F.3d

___ _____
_____

1994) (Powell, J.,

In mounting this inquiry,

in which

585 (noting

that a state

state

of the law,

actor is

not

"expected

to

qualified

immunity to turn on the eventual outcome of a hitherto

problematic

carry

crystal ball"),

constitutional

Marina-Martinez, 894
_______________

analysis,

nor

permit

see,
___

F.2d 474, 478 (1st

e.g.,
____

claims

Collins
_______

of

v.

Cir. 1990) (recognizing

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

necessarily

entitled

immunity");

accord Amsden
______ ______

v. Moran,
_____

Cir.

(citing other

cases), cert.
_____

1990)

to

prevail

on

the

issue

of

904 F.2d 748,

qualified

751-52 (1st

denied, 498
______

U.S. 1041

(1991).

Here, there can

maiming of Martinez

as

to

whether

constitutional

be no

doubt that, at

the moment

materialized, legitimate questions

the

rights.

conduct

After

at

issue

all, DeShaney
________

violated

had not

the

abounded

Martinez'

yet been

decided; thus,

the whole

intervene

cloaked

was

question of

in

a constitutional duty

uncertainty.

Even now,

with

to

the

guidance furnished by the DeShaney Court, the precise contours of

________

the

rule

as

Consequently,

it

applies

to

onlooker

even if Martinez had

20

officers

some basis for

are

murky.

a claim that

the

defendants owed him a duty grounded in the Constitution, the

dimensions of

all).

entitled

It

the right

follows

were dimly

inexorably

to qualified

perceived (if

that

immunity and,

the

perceived at

defendants would

hence, entitled

be

to brevis
______

disposition.

D.
D.

In

addition

Martinez advances

Other Theories.
Other Theories.
______________

to

his

principal

due

process

claim,

several other

theories.

All

are unavailing.

We mention three of them (rejecting the remainder without further

elaboration).

1.
1.

Violation of Local Law.

Violation of Local Law.
_______________________

defendants' breach

P.R. Laws Ann.

of a provision

tit. 25,

Martinez

urges that the

of Puerto Rico's

1003 (1980),7

Civil Code,

furnishes a basis

for

liability under 42 U.S.C.

It

actor's

1983.

is established

He is wrong.

beyond

peradventure

that a

state

failure to observe a duty imposed by state law, standing

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

1983 claim.

F.2d

at

See, e.g., Amsden,

___ ____ ______

42-43.

significance

Although

may attach

it

904 F.2d at

is

true

to certain

757; Chongris, 811

________

that

constitutional

interests created

by state

____________________

7The statute provides in pertinent part that police officers

have a duty

to protect persons and property,

and keep

the public

secure

the utmost

rights

of the

to maintain

order,

to observe

protection

of the

citizens,

to prevent

and
civil

. .

crime and . . . enforce obedience to the laws

. . . .

P.R. Laws Ann. tit. 25,

1003 (1980).

21

law,

see, e.g.,
___ ____

"property rights,

are creatures

law

does

811

is a

F.2d

while protected

of state law"),

double

Constitution

Chongris,
________

duty

as

charter

at 43

by the

(recognizing

federal Constitution,

not every transgression

constitutional

of carefully

that

of state

violation.

enumerated rights

The

and

responsibilities,

and

defining the

a government of limited

relationship between

powers.

Its

scope and application

are necessarily determined by its own terms.

design and eloquent in

empty

ledger

recitation

egregious

Though grand in its

its phrasing, the Constitution is

awaiting

of

the people

the

entry of

alleged state

those violations

law

may

an

aggrieved

violations

appear within

no

not an

litigant's

matter

the local

how

legal

framework.8

Moreover, while

the plaintiff states that section 1003

creates a constitutionally protected "entitlement" under Board of

________

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

the thesis

focus

and we do not see

how Roth applies.

____

Neither Roth's
____

nor its procedural design bears any similarity to the case

at

hand.

For

one

thing, the

cognizable constitutional

interests.

(1970)).

We

Roth
____

entitlement

See id.
___ ___

(citing Goldberg
________

fail to

intuit how Roth

____

Court's

conception of

was limited

v.

to

property

Kelly, 397
_____

U.S. 254

supports the

plaintiff's

____________________

8The absence of a constitutional duty to intervene in no way

______________

detracts from the callous nature of the conduct attributed to the

officers in this case,
confronted by
intervene.

nor does it imply that

private violence may not have

onlooker officers

a state law duty to

That question, quite simply, lies beyond the borders

of this opinion.

22

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

protected

in

his

physical

person.

remedial framework contemplated by Roth

____

For

another

thing,

the

procedural due process,

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

___ ___

has no applicability at all to Martinez'

other

uncertainties

Martinez is claiming a

may

plague this

remonstrance.

case,

it

is

Whatever

clear that

substantive due process violation,

___________

procedural due process violation.

__________

753-54 (delineating differences).

not a

See, e.g., Amsden, 904 F.2d at

___ ____ ______

In

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

____

of a case does not fit within it.

2.
2.

assertion

Equal Protection.
Equal Protection.
________________

that he

was denied

The plaintiff

rights secured

Equal Protection Clause because, were

defendants

does

it

that

would almost certainly have

not embellish this ipse

____

does not assist

issues

his cause.

adverted to

on

makes the

to him

dixit in any
_____

way.9

"It is settled

appeal

under the

he a private citizen,

come to his

in a

bold

rescue.

the

He

Consequently,

in this circuit

perfunctory

manner,

unaccompanied by some developed argumentation, are deemed to have

been abandoned."

Ryan v. Royal Ins. Co. of Am.,

____
______________________

916 F.2d 731,

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

9This criticism
asseveration nor
the

rests neither

on its

utter lack of any

Martinez

makes

on the economy

of Martinez'

potential incoherence, but,

legal foundation provided
_____

reference

to

rather, on

for the claim;

no constitutional

provision,

no

statute, no case law, no treatise, not even a law review article.

Parties

to

unsupported
very

legal

controversies

must

do

more

facts to survive summary judgment;

than

allege

they must at the

least explain the basis for, and the legal significance of,

those facts.

23

17 (1st Cir.),

cert. denied,
_____ ______

494 U.S. 1082

(1990); Collins
_______

v.

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

_______________

here:

the

plaintiff's fleeting

reference to

So it is

equal protection

does not succeed in preserving the issue for review.10

3.
3.

Supervisory Liability.
Supervisory Liability.
______________________

maintains that Trinidad, if

onlooker officer, may

Valentin's

acts.

plaintiff can

affirmative

be held

liable qua
___

"Supervisory

between

Rodriguez

23 F.3d

plaintiff

the

576, 583

as an

shift supervisor

liability

attaches

only if

for

evidentiary quality an

supervisor's

underlying section 1983 violation."

Rodriguez,
_________

the

not liable under section 1983

demonstrate by material of

link

Finally,

conduct

and

the

Maldonado-Denis v. Castillo_______________
_________

(1st Cir.

v. Betancourt-Lebron, 14 F.3d

1994); see
___

also Febus____ ______

87, 92 (1st Cir. 1994);

_________

_________________

Gutierrez-Rodriguez
___________________

v. Cartagena,
_________

1989).

underlying constitutional violation

Because no

882 F.2d

occurred, see supra Part III(C), no

___ _____

553, 562

(1st Cir.

in fact

supervisory liability can be

____________________

10To the extent that

the defendants'

our dissenting colleague proposes that

nonintervention cannot be

deemed rational,

see
___

post at pp. 30-31, this is merely another way of disagreeing with

our conclusion
As

for

that Valentin's conduct was

the larger

issue

of drawing

private, not public.

distinctions

between the

private and the public, we note simply that such distinctions are
regularly

and validly

drawn by

courts and

See, e.g., Westlands Water Dist.

___ ____ ______________________
1109,

1113

(9th

Cir.

distinguishing between
to

recovery of

equal

v. Amoco Chem. Co., 953

________________

(finding

rational

public and private tortfeasors

basis

F.2d

for

in regard

punitive damages); Southern Cal. Edison Co. v.

__________________________

United States, 415 F.2d

_____________
the

1991)

legislatures alike.

protection

758, 760 (9th Cir.) (noting

clause

the

separate

that "under

classification

of

privately

and

publicly

owned

justifiable"), cert. denied,

_____ ______
very

distinction

public

utilities

396 U.S.

has

long

957 (1969).

versus private

been

held

It is

this

that undergirds not

only DeShaney but also the Bill of Rights itself.

________

24

attributed to Trinidad under section 1983.11

IV.
IV.

CONCLUSION
CONCLUSION

We need go no further.

Because the defendants' failure

to intervene and protect the plaintiff against Valentin's private

actions,

rights

though regrettable,

secured

Constitution,

to

the

plaintiff

see DeShaney,
___ ________

court did not err

cannot

489

be said

by

U.S. at

the

to have

United

196-97, the

in summarily disposing of the

violated

States

district

federal claims.

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

legitimate federal question existed, the jurisdictional basis for

plaintiff's pendent claims under Puerto Rico law evaporated.

Brennan, 888 F.2d at 196.

_______

balance of the complaint.12

Affirmed.
Affirmed.
________

See
___

Thus, the court properly dismissed the

Dissent follows

____________________

11Moreover,
shift

(during

Trinidad was not

which Martinez

subsequent 4:00

a.m. to

the supervisor

was

12 noon

shot), but,
shift.

clear that supervisory liability would be a

Thus,

on Valentin's
rather,
it is

on the

far from

viable theory vis-a-

vis Trinidad even if an underlying constitutional violation could

be shown.

12Of course,
whatever

rights

the

dismissal operates

plaintiff may

claims in the courts of

have

Puerto Rico.

F.2d 34, 47 (1st Cir. 1991).

25

to

without prejudice
prosecute the

See Feinstein v.
___ _________

to

pendent

RTC, 942
___

BOWNES, Senior Circuit Judge, dissenting.

BOWNES, Senior Circuit Judge,
____________________

reasons that follow, I

start

with

recitation

the

is

cannot join the majority opinion.

facts.

not

For the

Although

inaccurate,

it

the

is

majority's

not

factual

full-bodied

was a young (age

twenty) and

portrayal of what happened.

I.
I.

Plaintiff, Martinez,

comparatively new member of the Puerto Rico Police Force.

On

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

the police station

assignment.

lot.

sufficiently early to

Martinez parked

He got out of

be given his

his car in

the police parking

his car and started

towards the police

station to get his orders for the day.

police officers in the

lot:

There were four other

the defendants --

Colon, V lez

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

majority

acknowledges, the defendants

times, on duty as

state

took

law.

heard Valentin's

defendants observed the

the parking

lot and

denigrating remarks

As the

were, at all relevant

police officers and acting under

The three

place in

duty

the police

color of

events that

station and

to Martinez.

None of

the defendants asked Valentin to stop his verbal and physical

assaults

and

against Martinez.

watched without protest

To put it starkly, they stood by

Valentin "blow away" Martinez's

penis.

26

As Martinez walked across the parking lot, Valentin

said

to the defendants,

"Here comes Pretty

Boy."

Valentin

then accosted Martinez, drew his service revolver, pointed it

directly

at

Martinez's genital

finger on the trigger,

then

lowered the revolver.

Martinez

it, put

told Valentin:

house.

his

afraid, and

because you will kill me."

proceeded into the station

Valentin again

cocked

asked Martinez if he was

horse around with that

then

area,

"Don't

Martinez

short time later

confronted Martinez; this time

he pushed his

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

shirt open.

were

spoken

uniform on

Trinidad.

The

record does not disclose whether

at this

juncture.

and reported

Martinez put

to his shift

any words

his

police

supervisor, defendant

short

Martinez.

time

This

confrontation,

but

Valentin pushed

assault

was

with

ominous

an

Martinez's pants

away" Martinez's penis.

scared.

Valentin

again

similar

to

assaulted

the

threat.

first

This

time

the muzzle of his loaded and cocked revolver

into the front of

was

later

and threatened

to "blow

Valentin then asked Martinez

After Valentin

withdrew the

if he

weapon, Martinez

moved away from him.

A short time later, within minutes,

accosted Martinez.

then inserted

He loaded

it into

and cocked

the front

27

Valentin again

his revolver

of Martinez's pants

and

while

continuing to verbally

Valentin's

revolver

abuse him.

The

discharged.

charade ended

Valentin's

when

prior threat

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

he was rendered permanently impotent.

The

says,

majority

"All parties

unintentional."

calls

agree

Ante at
____

accidental or not, it can

the

shooting

that

the

4.

Whether

accidental and

shooting

the

was

shooting

was

be concluded, based on

Valentin's

words and actions, that it was an accident

happen.

that was bound to

What Valentin did makes Russian roulette seem like a

parlor game.

II.
II.

The

majority's central

holding is

premised on

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

In my view,

the facts taken

plaintiff establish

in the light most

that Valentin was acting

favorable to

under color of

state law.

As

the majority

definition of acting under

the

defendant have

state law

and made

points out:

"`[T]he traditional

color of state law

exercised power

possible only

requires that

possessed by

because the

virtue of

wrongdoer is

clothed

with the

(quoting West
____

and

authority

v. Atkins, 487
______

internal quotation

person

acts under

of the

state.'"

U.S. 42, 49

marks omitted).

color of

state law

28

Ante
____

at

13

(1988)) (ellipses

Simply

stated, "a

`when he

abuses the

position

given him by the

U.S. at 50).

State.'"

Id.
___

(quoting West, 487

____

I think that Valentin exercised power possessed

by virtue of Puerto

Rico law and made possible

only because

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

abused that power.

Even if

I disregard

the obvious --

that Valentin

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

service

revolver to commit

heavily

in

favor

position as a

of a

the tort (all

finding

police officer) --

that

his

of which militate

Valentin

abused his

I believe that

Valentin's

status as a police officer was the only reason the defendants

took

had

no action.

been

bystander

If Valentin

tormenting

Martinez

officers certainly

had been a private citizen and

in

would

the

have

same

manner,

intervened.

the

The

record gives

rise to a reasonable

inference that Valentin's

police-officer status led the bystander officers

that:

that he

to conclude

(1) Valentin was not mentally unbalanced to the point

might actually shoot

Martinez, but a

stable person

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

skilled

enough with firearms to be allowed to engage in this

sort of stupidity.

Consequently, the record gives rise to an

inference that Valentin's

qua non of
___ ___

view,

police-officer status

was a

the bystander officers' non-intervention.

this inference

establishes

under color of state law.

29

that Valentin

sine
____

In my

was acting

The majority suggests

police

that Martinez's status as

__________

officer somehow reduced

the likelihood that Martinez

perceived Valentin

to be acting

Commonwealth.

See
___

id. at 17
___

conclusion is

at least

bystander officers

with the imprimatur

n.6.

as likely

believe the

to be

true.

(including Trinidad, who

of the

opposite

After

the

had supervisory

authority) failed

abuse by

this

Valentin, Martinez

type of hazing of

the Loiza

have

to intervene during the

could well have

young officers was

Street Precinct.

initial rounds of

concluded that

standard fare in

Therefore, Martinez

could well

believed that the Commonwealth acquiesced in Valentin's

actions.

Because Valentin

law,

suit.

I think

it pellucid

At most,

DeShaney
________

was acting

under color

that DeShaney
________

precludes

does not

civil rights

of state

bar this

actions

against state actors under the Due Process Clause for failing

to protect an individual against

U.S. at 197.

private violence.
_______

See
___

489

The DeShaney majority took pains to distinguish

________

the case before

it from situations

where the state

itself,

through its own affirmative action prior to the complained-of

non-intervention, limited the victim's

freedom.

Id. at 198___

201 (contrasting situations where the state has taken custody

of

certain

individuals

and

thereby

responsibility for

[their] safety and

the

acting through

Commonwealth,

30

the

incurred

"some

well-being").

Here,

person of

Valentin,

compromised Martinez's freedom by successively assaulting him

three

U.S. at

times with a loaded

49.

sufficient

In my

service revolver.

view, this

to support

Martinez's

claim.

DeShaney, 489 U.S.

________

process

analysis,

it

is

See West, 487

___ ____

infringement was

substantive

at 200 ("In

the State's

more than

due

process

the substantive due

affirmative

act

of

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

--

through

similar

incarceration,

restraint

`deprivation of

of

institutionalization,

personal

liberty

liberty' triggering the

Due Process Clause.").

--

which

or

other

is

the

protections of

the

I believe it important to comment on three discrete

parts of the

majority opinion.

Valentin's use

The majority concedes

of his service revolver

might arguably bring

his actions within the color of state law.

is

then rejected on two grounds:

that

Ante at 16.
____

This

that it was not raised in

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

merits.

was used.

I cannot help but wonder why the straw man

approach

In any event, I disagree on both grounds.

Fairly

construed,

Valentin's status

as an

Martinez's

on-duty police

argument

that

officer made

him a

state actor incorporates the

argument that Valentin used the

indicia

trade

and

revolver) to

than enough to

tools

of

his

carry out the shooting.

allow us

(including

For me,

to consider Valentin's

his

service

this is more

use of

his

31

service

revolver as a factor in determining whether he was a

state actor.

that

am also

am troubled

by the

majority's finding

Martinez waived his equal protection claim.

Id. at 22.
___

As an initial

matter, I think it important to state that the

claim appears to have some substance.

be rational

for bystander

because one

of their own --

being

victimized

by

How, after all, can it

officers not to

intervene simply

as opposed to a

violence?

What

civilian -- is

legitimate

state

objective could such inaction serve?

The majority

finds

claim because he failed to

I do

not think that the

was called

clearly:

an equal

"If Wilfredo

that Martinez

abandoned

"embellish" it sufficiently.

issue needed any

protection claim and

embellishing.

this

Id.
___

It

stated relatively

had been a private citizen,

it seems

clear that defendants-appellees would have realized that they

were obliged under the law to protect

serious damages."

him from the threat of

Appellant's Brief at 9.

In my view,

this

was sufficient to put the claim in issue.

Finally,

majority's

suggestion

acting under color

civilian.

Ante
____

and

that

it

important

Valentin might

to

refute

the

not

have

been

of state law even if Martinez

____ __

at 17

rather than a fellow

uniform

think

weapon

n.6 ("Had

Martinez been

had been a

a civilian

officer, the significance of Valentin's

for

purposes

32

of

the

color-of-law

determination

supplied).

might
_____

have
____

been
____

greater.")

I find the suggestion remarkable.

had suffered the

an

well
____

(emphasis

If a civilian

abuse Martinez experienced at

the hands of

on-duty, uniformed police officer using his service

_________________________________________________________

revolver in front of other officers in a police station,

____________________________________________________________

well-settled

civilian

precedent

would

dictate a

finding

was victimized under color of state law.

that

the

We should

not even hint that this may not be so.

III.
III.

I also cannot agree with the majority's

conclusion

that

an

unargued

qualified

immunity

alternative ground for affirmance

theory

in this case.

provides

See
___

an

id. at
___

18-20.

Under the qualified immunity

doctrine, "government

officials performing discretionary functions[]

shielded from

conduct

liability for

does not

violate

generally are

civil damages insofar

clearly established

as their

statutory or

constitutional rights of which a reasonable person would have

known."

Harlow v.
______

Fitzgerald, 457 U.S. 800, 818 (1982).

__________

determining whether a right

relevant

point

appropriate

in

level

time,

In

was "clearly established" at the

courts must

of specificity.

analyze

Thus, a

"clearly established" for qualified immunity

it

right

at

the

is not

purposes unless

its

contours are

sufficiently clear

so "that

a reasonable

33

official would understand that what he is doing violated that

right."

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

________
_________

The majority suggests that Martinez's right to have

the bystander

officers intervene on his

behalf was "cloaked

in uncertainty" and was

"murky" at the time of

events.

As

disagree.

the

the relevant

majority concedes,

it

was

settled at the time of the events in this case that

[a]n officer who is present

[of

an

arrest]

and who

at the scene
fails

to take

reasonable steps to protect the victim of

another officer's use of

excessive force

can be held liable under section 1983 for

his nonfeasance,
realistic

provided that he

opportunity

to

prevent

had a
the

other officer's actions.

Ante at
____

9 (citations and internal

quotation marks omitted).

In my view, this line of authority controls here.

The

suggesting

majority

that it

is

distinguishes

inapplicable

this

where

precedent

the

by

tortfeasor

officer is not acting under the

concludes

that Valentin

was not

color of state law, and then

so acting

here.

For the

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

esteemed

colleagues), I

do

not think

that an

objectively

reasonable police officer could have seen Valentin's

as purely private.

color

of

state

actions

And because Valentin was acting under the

law,

the

aforementioned

authority

was

sufficient to have informed defendants of their obligation to

intervene

on Martinez's behalf.

See Anderson,
___ ________

483 U.S. at

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

34

by qualified immunity unless the very

previously been held unlawful, but

light

of

pre-existing

apparent.")

(citation omitted).

the course of

should an

the

law

it is to say that

the

unlawfulness

If excessive

a lawful arrest requires

assault with a

course of

action in question has

an entirely

in the

must

be

force during

intervention, so too

deadly weapon taking

place during

unlawful seizure.
________

I therefore

disagree with the majority's qualified immunity analysis.

IV.
IV.

Police

officers are entrusted with great powers --

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

of preventing lawless violence.

powers in front

tacit

of his

acquiescence,

situation, the

intervene.

if

When an officer abuses those

peers, he in

not

effect presumes

outright approval.

other officers have a

In

their

this

constitutional duty to

I therefore respectfully dissent.

35