Buenrostro v. Collazo

• Court: Court of Appeals for the First Circuit
• Decided: August 26, 1992
• Docket: 91-2337
• Status: Published

Opinion

USCA1 Opinion

____________________

No. 91-2337

                              LEONEL BUENROSTRO, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                 PABLO COLLAZO, a/k/a PABLO COLLAZO MARRERO, ET AL.,

                               Defendants, Appellants.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                           Selya and Stahl, Circuit Judges,
                                            ______________

                            and Skinner,* District Judge.
                                          ______________

                                 ____________________

               John  F. Nevares,  with  whom Annabel  Rodriguez,  Solicitor
               ________________              __________________
          General, Reina Colon, Assistant Solicitor General, Silvio Cancio,
                   ___________                               _____________
          and Saldana, Rey & Alvarado were on brief, for appellants.
              _______________________
               Francisco A. Besosa, with whom  Goldman Antonetti Ferraiuoli
               ___________________             ____________________________
          & Axtmayer was on brief, for appellees.
          __________

                                 ____________________

August 26, 1992

                                 ____________________

          ____________________
          *of the District of Massachusetts, sitting by designation.

SELYA,  Circuit   Judge.     Plaintiff-appellee  Leonel
                    SELYA,  Circuit   Judge
                            _______________

          Buenrostro, portraying himself  as a victim of  mistaken identity

          and misplaced  zeal, sued  a number of  police officers  under 42

          U.S.C.   1983  (1988).1  The defendants  unsuccessfully attempted

          to  pretermit the  suit  on  qualified  immunity  grounds.    The

          district  court  denied their  motion for  summary judgment.   We

          affirm.

                                          I
                                          I
                                          _

                    Consistent with the method of Fed. R. Civ. P. 56(c), we

          take  the  record in  the  light  most  hospitable to  the  party

          opposing summary judgment  and indulge all reasonable  inferences

          favorable to him.   See Garside v. Osco Drug, Inc.,  895 F.2d 46,
                              ___ _______    _______________

          48 (1st Cir. 1990).

                    On   March  29,  1988,  the  extradition  squad  raided

          Buenrostro's home, hauled him out, and arrested him pursuant to a

          "wanted person" request  (WPR) from the State  of New York.   The

          police admittedly  acted in the  absence of an arrest  warrant, a

          search  warrant,  or  any  exigent  circumstances  sufficient  to

          justify the intrusion.

                    As  a result of  this arrest, appellee  was handcuffed,

____________________

               1The defendants include Pablo Collazo Marrero, Angel Morales
          Gonez, Edwin Teruel,  and Jose M. Collazo, members  of the Puerto
          Rico  Police   Department's  Division  of  Special   Arrests  and
          Extraditions;  Armando Tapia Suarez,  the head of  that Division;
          and  Carlos  Lopez  Feliciano,   the  Superintendent  of  Police.
          Although other defendants were also sued, these six  officers are
          the sole appellants  in this proceeding.  For  ease in reference,
          we  disregard for  the  time  being  that  Buenrostro's  conjugal
          partnership and  family members  are named  plaintiffs and  treat
          Buenrostro as if he alone was the plaintiff-appellee.  

                                          2

taken   to   police   headquarters,  and   locked   in   a  cell.

          Subsequently,  a  local  magistrate  determined  that  there  was

          probable  cause to detain  him while extradition  proceedings ran

          their course.  Despite a number of red flags   e.g., Buenrostro's

          claims that the  probable-cause determination was based  on false

          accusations  mouthed by  members of  the  extradition squad,  his

          continuing  protests  of   innocence,  significant  discrepancies

          between the description  of the suspect mentioned in  the WPR and

          Buenrostro's physical characteristics, and available (but unused)

          fingerprint  evidence   Buenrostro  remained immured in  what the

          district court termed "horrific conditions"  for thirty-one days.

          Finally,  a more thorough  examination of New  York's extradition

          request was undertaken, and the Puerto Rican authorities admitted

          that they had arrested the wrong man.  Buenrostro was released.

                    Not long thereafter,  Buenrostro sued for damages.   He

          alleged  in his complaint that his constitutional rights had been

          infracted in various ways.  He also asserted pendent claims.   In

          due course,  the appellants  sought brevis  disposition based  on
                                              ______

          qualified immunity.  When the district court denied their Rule 56

          motion, Buenrostro  v. Collazo, 777  F. Supp. 128  (D.P.R. 1991),
                  __________     _______

          they filed this appeal.

                                          II
                                          II
                                          __

                                          A.
                                          A.
                                          __

                    Ordinarily, we would not  entertain an immediate appeal

          from a denial of summary judgment.  See, e.g., Fisichelli v. City
                                              ___  ____  __________    ____

          Known as the  Town of Methuen, 884  F.2d 17, 18 (1st  Cir. 1989);
          _____________________________

3

see also 28 U.S.C.    1291 (1988) ("[t]he courts of appeals . . .
          ___ ____

          shall have  jurisdiction of appeals  from all final  decisions of
                                                        _____

          the  district courts")  (emphasis supplied).   Nevertheless,  the

          denial  of  a  government  actor's  dispositive  pretrial  motion

          premised on qualified immunity falls within a narrow exception to

          the finality principle and is, therefore, immediately appealable.

          See  Mitchell v.  Forsyth, 472  U.S.  511, 524-30  (1985); Roque-
          ___  ________     _______                                  ______

          Rodriguez  v. Lema  Moya,  926  F.2d 103,  105  (1st Cir.  1991);
          _________     __________

          Fisichelli, 884 F.2d at 18.   The window of opportunity, however,
          __________

          is tiny.   "Notwithstanding that  we have jurisdiction  to review

          the  denial of qualified immunity midstream, any additional claim

          presented   to  and   rejected  by   the   district  court   must

          independently satisfy the collateral-order exception to the final

          judgment rule  in order for us to  address it on an interlocutory

          appeal."    Roque-Rodriguez,  926  F.2d  at  105  (citations  and
                      _______________

          internal  quotation marks omitted); see also Domegan v. Fair, 859
                                              ___ ____ _______    ____

          F.2d 1059, 1061-62 (1st Cir. 1988).

                    In this case, there is no other basis for earlier-than-

          usual review.  It follows  inexorably that, for present purposes,

          we must  focus  exclusively  upon  the question  of  whether  the

          defense  of qualified  immunity, as  invoked  by the  appellants,

          shielded them  from  liability for  money damages,  and from  the

          concomitant  burden of  a  trial,  arising  out  of  the  alleged

          constitutional  deprivation.   See Roque-Rodriguez,  926 F.2d  at
                                         ___ _______________

          105-06.

                                          B.
                                          B.
                                          __

4

Appealability aside, appellate review of district court

          orders granting or denying summary judgment works the same way in

          qualified  immunity cases  as in  other  cases.   See Morales  v.
                                                            ___ _______

          Ramirez, 906 F.2d  784, 785 (1st Cir. 1990); Amsden v. Moran, 904
          _______                                      ______    _____

          F.2d  748, 752  (1st  Cir.  1990), cert.  denied,  111 S.Ct.  713
                                             _____  ______

          (1991).     Summary  judgment   is  proper  if   "the  pleadings,

          depositions,  answers to interrogatories, and admissions on file,

          together  with the  affidavits, if  any,  show that  there is  no

          genuine issue as to  any material fact and that  the moving party

          is entitled to a  judgment as a matter of law."   Fed. R. Civ. P.

          56(c).     District  court  orders  granting  or  denying  brevis
                                                                     ______

          disposition  are  subject  to plenary  review.2    Griggs-Ryan v.
                                                             ___________

          Smith, 904  F.2d 112, 115 (1st  Cir. 1990); Garside, 895  F.2d at
          _____                                       _______

          48.

                                         III
                                         III
                                         ___

                                          A.
                                          A.
                                          __

                    Through  the  medium  of qualified  immunity,  the  law

          strives to balance  its desire to  compensate those whose  rights

          are infringed by  state actors with an  equally compelling desire

          to  shield public  servants  from  undue  interference  with  the

____________________

               2We recognize  that, in  some relatively  rare instances  in
          which Rule 56 motions might technically be granted, the  district
          courts  occasionally exercise a  negative discretion in  order to
          permit a potentially  deserving case to be  more fully developed.
          See, e.g.,  McLain v. Meier, 612  F.2d 349, 356 (8th  Cir. 1979);
          ___  ____   ______    _____
          McInnis  v. Harley-Davidson  Motor  Co.,  625  F.Supp.  943,  958
          _______     ___________________________
          (D.R.I. 1986).   We express  no opinion on whether  this negative
          discretion can flower in a case that turns on qualified immunity,
          nor  do we  speculate about  what standard  of review  might then
          obtain.

                                          5

performance of their duties and  from threats of liability which,

          though unfounded, may nevertheless be unbearably disruptive.  See
                                                                        ___

          Harlow v.  Fitzgerald, 457  U.S. 800, 806  (1982).   Hence, state
          ______     __________

          officials  exercising  discretionary  authority are  entitled  to

          qualified immunity insofar  as their conduct does  not transgress

          clearly established constitutional or federal statutory rights of

          which a reasonably prudent official  should have been aware.  See
                                                                        ___

          Harlow,  457 U.S. at  818; Roque-Rodriguez, 926 F.2d  at 107.  In
          ______                     _______________

          this  context, the  phrase "clearly  established"  has a  precise

          definition:   "The  contours of  the right  must be  sufficiently

          clear that a reasonable official would understand that what he is

          doing violates that right."  Anderson v. Creighton, 483 U.S. 635,
                                       ________    _________

          640 (1987); accord Amsden, 904 F.2d at 752.
                      ______ ______

                    In analyzing a qualified immunity defense, a court must

          ascertain whether the  plaintiff has alleged, with  the requisite

          particularity, that a  state actor violated some  right emanating

          from federal law.3   See Siegert v. Gilley, 111 S. Ct. 1789, 1793
                               ___ _______    ______

          (1991); Amsden, 904 F.2d  at 752.  The next step  is to ascertain
                  ______

          whether the right at issue  was "clearly established" at the time

          of infringement.   See Anderson, 483 U.S. at 640.   If it was, an
                             ___ ________

          inquiring  court can  then presume  that the  defendant  knew, or

          should have  known, that his  conduct was beyond  the pale.   See
                                                                        ___

          Harlow, 457 U.S. at 818-19; Amsden, 904 F.2d at 752.
          ______                      ______
                              
          ____________________

               3At  the summary  judgment stage,  the  allegation must,  of
          course,  be  substantiated by  competent  evidence  sufficient to
          create  a genuine issue of material fact.  See Mesnick v. General
                                                     ___ _______    _______
          Elec. Co., 950 F.2d 816, 822  (1st Cir. 1991), cert. denied,  112
          _________                                      _____ ______
          S. Ct. 2965 (1992); see also Mitchell, 472 U.S. at 526.
                              ___ ____ ________

                                          6

B.
                                          B.
                                          __

                    The protections of the Fourth Amendment are fundamental

          to the rights of all  American citizens and apply unreservedly in

          Puerto  Rico.   See Torres  v.  Puerto Rico,  442  U.S. 465,  471
                          ___ ______      ___________

          (1979).   That prophylaxis guarantees, inter alia, every person's
                                                 _____ ____

          right to  be free from  unreasonable searches and seizures.   See
                                                                        ___

          Payton  v. New  York,  445  U.S. 573,  585  (1980).   Warrantless
          ______     _________

          searches  or  seizures  occurring  within  a  person's  home  are

          "presumptively unreasonable," id. at 586   a postulate which  was
                                        ___

          indelibly  etched in  jurisprudential  granite  at  the  time  of

          Buenrostro's arrest.   See id.; see also Santiago  v. Fenton, 891
                                 ___ ___  ___ ____ ________     ______

          F.2d  373, 386  (1st Cir. 1989)  (discussing state of  the law in

          1983);   Wagenmann v. Adams,  829 F.2d  196, 209 (1st  Cir. 1987)
                   _________    _____

          (similar).

                    Payton  sends  the  clearest signal  for  our purposes.
                    ______

          There, the Supreme Court held that a non-consensual, non-exigent,

          warrantless  entry   into  a   home  to   effectuate  an   arrest

          transgressed the Fourth Amendment,  notwithstanding that probable

          cause  sufficient to  justify the  same arrest  in a  more public

          arena  may have  existed.   Payton,  445  U.S. at  590;  see also
                                      ______                       ___ ____

          Minnesota v. Olson, 495 U.S.  91, 95 (1990) (describing Payton as
          _________    _____                                      ______

          holding  "that a  suspect should  not  be arrested  in his  house

          without an arrest warrant"); New York v. Harris, 495 U.S. 14, 17-
                                       ________    ______

          18 (1990) (Payton "drew a line"  prohibiting police from entering
                     ______

          a person's home without a warrant); United States v. Beltran, 917
                                              _____________    _______

          F.2d 641, 642  (1st Cir. 1990) (apart  from exigent circumstances

7

or a consensual entrance, the Constitution requires the police to

          obtain  a warrant  "before entering  a person's  home to  make an

          arrest").   Absent some  legally cognizable  justification, then,

          appellants  violated a  clearly established  constitutional right

          when  they unceremoniously hauled  the plaintiff from  hearth and

          home.

C.
                                          C.
                                          __

                    Appellants attempt to salvage  their qualified immunity

          defense by  asserting various  justifications for  their actions.

          They claim, first  and foremost, that they had  probable cause to

          believe  that Buenrostro was a  fugitive from justice and, hence,

          to arrest and detain him.   That is not, however, the dispositive

          criterion.   Probable cause,  without more,  cannot legitimate  a

          warrantless entry into  a suspect's home.  See Olson, 495 U.S. at
                                                     ___ _____

          95; Payton, 445 U.S. at 587-90.
              ______

                    Appellants' remaining contentions can be grouped.  They

          contend  that  the  wanted  person  request  was  the  functional

          equivalent  of an arrest  warrant.4  But  it seems  obvious to us

          that, in the context of seizing an individual within the confines

          of his own home, a wanted person request circulated by an out-of-

          state  police  department  differs significantly  from  an arrest

          warrant  issued  by  a neutral,  detached  magistrate  within the
                              
          ____________________

               4If it were correct, this contention would likely  carry the
          day.  See,  e.g., Steagald v.  United States, 451  U.S. 204,  214
                ___   ____  ________     _____________
          n.7, 221 (1981) (valid arrest warrant may justify apprehension of
          suspect in his own home,  notwithstanding the absence of a search
          warrant); Payton, 445 U.S. at 602-03 (similar).
                    ______

                                          8

jurisdiction where the dwelling is located.  

                    Alternatively, appellants contend that they entered the

          house with Buenrostro's  consent   a datum which,  if true, would

          obviate the need for a warrant.   Buenrostro, however, vehemently

          denies  that he  consented  to  the intrusion.    At the  summary

          judgment stage, therefore,  the district court could  not resolve

          the issue against him.   See, e.g., Unwin  v. Campbell, 863  F.2d
                                   ___  ____  _____     ________

          124, 136 (1st Cir. 1988) (if the record reveals a genuine dispute

          over a fact-specific question essential to the qualified immunity

          inquiry, summary judgment cannot be granted). 

                    What is more, the grouped contentions are both infected

          by  an incurable  strain of  procedural  default.   In the  court

          below,  appellant described the qualified immunity issue as being

          "simply whether  the police officers,  at the time  they arrested
                  _________________________________________________________

          the plaintiff, had probable  cause to believe that  plaintiff had
          _________________________________________________________________

          violated the law."   Memorandum in Support of  Motion for Summary
          _________________

          Judgment (Memorandum) at 18 (emphasis  in original); see also id.
                                                               ___ ____ ___

          at  16.  They eschewed  any reliance on the  WPR as a valid proxy

          for a conventional  arrest warrant.  Their  moving papers nowhere

          suggested, let alone documented, that Buenrostro consented to the

          entry into  his home.   Thus, the "arrest warrant"  and "consent"

          arguments are  by the boards  for purposes of  this appeal.   See
                                                                        ___

          McCoy v. Massachusetts Inst. of  Technology, 950 F.2d 13, 22 (1st
          _____    __________________________________

          Cir. 1991) (arguments made in a  perfunctory or incomplete manner

          in the  court below are  deemed waived on appeal),  cert. denied,
                                                              _____ ______

          112 S. Ct.  1939 (1992); Clauson v. Smith, 823 F.2d 660, 666 (1st
                                   _______    _____

9

Cir. 1987) (theories not advanced in the district court cannot be

          pressed for the first time on appeal).

                    We will not paint the  lily.5  On this scumbled record,

          the district court  acted with impeccable propriety  in rejecting

          the qualified  immunity defense and  refusing to enter  a summary

          judgment predicated thereon.

                                          D.
                                          D.
                                          __

                    Although our  analysis to  this point  disposes of  the

          appeal,  we add  an eschatocol  of sorts.   Much of  the parties'

          briefing and argumentation ventures  beyond the easily visualized

          Fourth Amendment violation  and discusses  whether an  additional

          constitutional deprivation  resulted  from the  sheer  length  of

          Buenrostro's imprisonment.  See Baker v. McCollan,  443 U.S. 137,
                                      ___ _____    ________

          145  (1979)  (dictum).6    Given  the  posture  of  this  appeal,
                              
          ____________________

               5It should be noted that two of the appellants, Tapia Suarez
          and Lopez Feliciano,  were supervisors, not directly  involved in
          Buenrostro's  arrest.  In  moving for summary  judgment, however,
          they did not suggest that their involvement should be judged by a
          different standard; instead, they were content to lump themselves
          with the  members of the  extradition squad.  We  have repeatedly
          held that,  if a defendant wishes  to be separated from  the pack
          and  treated   independently  from  his   codefendants  regarding
          qualified immunity, it is necessary that  he make the distinction
          and present an  appropriate argument to that effect  in the trial
          court.   See   Brennan v. Hendrigan,  888 F.2d 189,  193 n.2 (1st
                   ___   _______    _________
          Cir. 1989); Domegan, 859 F.2d  at 1065.  Since appellants' moving
                      _______
          papers did not  attempt to carve out any  such differential niche
          in respect  to either Tapia  Suarez or Lopez Feliciano,  we treat
          them on a par with the arresting officers.

               6The Baker Court wrote:
                    _____

                    We may even assume, arguendo, that, depending
                                        ________
                    on   what   procedures  the   State   affords
                    defendants  following  arrest  and  prior  to
                    actual trial,  mere detention  pursuant to  a
                    valid  warrant but  in the  face of  repeated

                                          10

however, the issue is a dead letter.  We explain briefly.

                    In the court below, appellants premised their qualified

          immunity defense strictly and solely on what they claimed was the

          officers'   objectively   reasonable  conduct   in   effectuating

          Buenrostro's arrest.7  See Memorandum  at 14-19.  They cannot now
                                 ___

          switch  horses  and argue  that  they are  entitled  to qualified

          immunity  on the alleged Baker violation.  Qualified immunity is,
                                   _____

          after all,  an affirmative  defense, and the  "right" to  have it

          determined in an intermediate  appeal can be waived if  it is not

          properly asserted below.  See, e.g., Roque-Rodriguez, 926 F.2d at
                                    ___  ____  _______________

          105-06; Fisichelli, 884 F.2d at 18-19 & n.2.
                  __________

                    At  any rate,  the Supreme  Court has  made  it crystal

          clear  that principles of  causation borrowed  from tort  law are

          relevant  to civil  rights actions  brought  under section  1983.
                              
          ____________________

                    protests of innocence will after the lapse of

                    a certain amount of time deprive the  accused
                    of  "liberty .  . .  without  due process  of
                    law."

          Baker, 443 U.S.  at 145 (dictum); see also id.  at 148 (Blackmun,
          _____                             ___ ____ __
          J., concurring).

               7The  district court,  following  appellants' lead,  did not
          address  the  possibility  of qualified  immunity  vis-a-vis  the
          alleged Baker violation but merely rejected appellants' effort to
                  _____
          jettison  that  allegation  for failure  to  state  an actionable
          claim.   See Buenrostro, 777  F. Supp. at  136 (holding  that the
                   ___ __________
          plaintiff, in connection with his Baker theory, "has stated facts
                                            _____
          sufficient to  state a  cause  of action  for  . .  .  deliberate
          indifference").   Since  we  are  operating  under  the  Mitchell
                                                                   ________
          exception  to the  finality principle,  we  lack jurisdiction  to
          review that  ruling  at  the present time.   See Roque-Rodriguez,
                                                       ___ _______________
          926 F.2d at 105-06.  Thus, we decline to speculate, here and now,
          whether  the Baker  dictum limns  a potentially  viable  cause of
                       _____
          action; or, if  it does, whether such a claim can be supported on
          the facts sub judice.
                    ___ ______

                                          11

See, e.g., Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986); Monroe
          ___  ____  ______    ______                                ______

          v. Pape, 365  U.S. 167, 187 (1961); see also  Wagenmann, 829 F.2d
             ____                             ___ ____  _________

          at 212-13;  Springer v.  Seaman, 821 F.2d  871, 876-79  (1st Cir.
                      ________     ______

          1987).   Since  a  jury  could conceivably  find  a causal  nexus

          between  the unlawful arrest and the consequent imprisonment, the

          particulars of the imprisonment issue will  have to be litigated.

          Hence,  it would  serve  no  useful purpose  to  address, in  the

          isthmian  confines  of  an  interlocutory  Mitchell-type  appeal,
                                                     ________

          whether  a Baker violation also  occurred.  In  short, once it is
                     _____

          determined that the case must  go forward on the Fourth Amendment

          issue, the length and circumstances of Buenrostro's detention are

          best examined  at trial as  part of the determination  of damages

          flowing   from  the  allegedly  unlawful  arrest.    Cf.,  e.g.,,
                                                               __    ____

          Mitchell, 472 U.S. at 526  (as long as "the plaintiff's complaint
          ________

          adequately alleges the  commission of acts that  violated clearly

          established law"  and the plaintiff adduces  "evidence sufficient

          to  create a genuine  issue as to  whether the defendant  in fact

          committed  those acts," the  doctrine of qualified  immunity will

          not shield a state actor from trial).

                                          IV
                                          IV
                                          __

                    We need go no further.   On this record, the appellants

          are  not entitled to  qualified immunity on  the Fourth Amendment

          claim.8
                              
          ____________________

               8In this  case, there seem  to be additional facts,  not yet
          fully developed and-or  resolved, which could potentially  inform
          the   ultimate  decision  on  qualified  immunity.    Hence,  the
          defendants remain free to adduce  additional proof at trial in an
          effort to  demonstrate that they,  or some among them,  should be

                                          12

Affirmed.
          Affirmed.
          ________

____________________

          held harmless from damages by the doctrine of qualified immunity.
          See, e.g.,  Vazquez Rios  v. Hernandez Colon,  819 F.2d  319, 329
          ___  ____   ____________     _______________
          (1st Cir. 1987).

                                          13