USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1136
AMARILIS PARRILLA-BURGOS, ET AL.,
Plaintiffs - Appellants,
v.
FELIX HERNANDEZ-RIVERA, ET AL.,
Defendants - Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and DiClerico, Jr.,* District Judge.
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Joan S. Peters, with whom Andr s Guillemard-Noble and
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Nachman, Santiago & Guillemard were on brief for appellants.
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John F. Nevares, with whom Lizzie M. Portela and Smith &
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Nevares were on brief for appellee Carlos J. L pez-Feliciano.
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Roxanna Badillo-Rodr guez, Assistant Solicitor General, with
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whom Carlos Lugo-Fiol, Solicitor General, and Edda Serrano-
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Blasini, Deputy Solicitor General, were on brief for appellees
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Fernando V zquez-Gely, Felipe Aponte-Ortiz, Angel L. D az, Angel
L. Hern ndez-Col n and Luis E. L pez-Lebr n.
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March 19, 1997
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Of the District of New Hampshire, sitting by designation.
DiClerico, District Judge. The plaintiffs, relatives
DiClerico, District Judge.
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of the decedent, Lionel Galletti Roque ( Galletti ), brought this
action under 42 U.S.C. 1983 against the defendants, members of
the Puerto Rico Police Department, seeking damages allegedly
suffered when one of the defendants, F lix Hern ndez Rivera
( Hern ndez ), shot and killed Galletti during a fight at a bar.
The district court granted summary judgment in favor of the
defendants, finding that Hern ndez, who was on medical leave at
the time of the shooting, was not acting under color of state
law. The district court initially denied the defendants motion
for summary judgment, but reconsidered that ruling in light of
our decision in Mart nez v. Col n, 54 F.3d 980 (1st Cir.), cert.
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denied, 116 S. Ct. 515 (1995). In this appeal, the plaintiffs
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challenge the district court s grant of summary judgment. For
the reasons expressed below, we affirm the district court s
decision.
Factual and Procedural Background1
Factual and Procedural Background
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On January 2, 1989, at around 10:00 p.m., plaintiffs
decedent, Galletti, was drinking at a bar in Trujillo Alto,
Puerto Rico, known as Carlos Place. Galletti was accompanied by
Angel Ram rez Fonseca, Ilari n Rosado, and two individuals
identified only as Algar n and Ity. At that time, codefendant
Hern ndez, an officer of the Puerto Rico Police Department,
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In reviewing the decision on the defendants motion for summary
judgment, we recount and consider only those facts that have been
alleged by the plaintiff or are not in dispute.
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arrived with an unidentified group of his friends. Hern ndez,
who was on medical leave due to gastroenteritis, was not in
uniform but was carrying his police identification and service
revolver. Police department policy states that Puerto Rico
police officers are on duty twenty-four hours a day and therefore
each officer is required to carry identification and a service
revolver at all times.
Inside Carlos Place, Hern ndez approached Galletti s
group and words and threatening glances were exchanged. Galletti
challenged Hern ndez hostile attitude, stating that he had done
nothing to provoke it. Hern ndez responded, I ll look at you
whichever way I please, because I m a cop.
The situation escalated. Hern ndez slapped Galletti s
friend Ity. Galletti told Hern ndez, Well, you don t have to
give me dirty looks. You look at me really bad and I have done
nothing to you. Hern ndez replied, I look at anybody I want,
because I m a cop. Anybody I decide I want to look at dirty, I
look at them dirty. At this point the owner of the bar,
apparently concerned by the interchange, told Hern ndez, Just
because you are the law, you don t need to intimidate people,
and asked him to leave. Hern ndez told the bar owner not to
meddle and to leave the combatants alone because it was none of
his business.
By this time the conflict had attracted the attention
of patrons outside the bar, who entered the bar to better view
the confrontation. According to the plaintiffs, Hern ndez
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identified himself to the crowd as a police officer, saying that
he was supposed to be there to establish the peace and order
and showed them his police identification, apparently to prevent
them from interfering in the conflict. This stopped the fracas
for about five minutes.
However, as Hern ndez was leaving the bar, one of his
friends and one of Galletti s friends resumed hostilities. At
this point, Galletti told Hern ndez, Well, you leave the gun,
and me and you will have it out, outside. Hern ndez responded,
I don t need a gun to fight you. Come on, step outside.
Hern ndez, despite his statement to the contrary, took his
service revolver with him as both parties went outside. While
Galletti took off his sweater, Hern ndez threw a beer can at him.
Galletti responded by pushing Hern ndez. Hern ndez then took out
his service revolver and fired six shots at Galletti. The first
shot missed Galletti and hit a bystander but the next five hit
Galletti, killing him.
On December 27, 1989, Galletti s survivors brought this
1983 action against Hern ndez2 and other supervising officers
(the supervisory defendants ).3 On August 30, 1991, supervisory
defendant Carlos L pez Feliciano filed a motion for summary
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Hern ndez never answered the complaint, and the district court
entered a default against him on August 31, 1990. He played no
further role in the case or the subsequent appeal.
The other officers named as defendants are: Carlos L pez
Feliciano, Luis L pez Lebr n, Angel Hern ndez, Luis Carrillo,
Angel D az, Fernando V zquez-Gely, F lix Aponte-Ortiz, and Jos
Lucena.
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judgment, which the other supervisory defendants joined, on the
ground that Hern ndez was not acting under color of state law
when he shot Galletti.
On November 1, 1991, Judge Carmen Consuelo Cerezo
denied the motion for summary judgment. On March 31, 1992,
supervisory defendant L pez Feliciano filed a motion for
reconsideration of that decision. At this time, the other
supervisory defendants filed a motion to dismiss, asserting that
the plaintiffs had not alleged facts necessary to establish
supervisory liability. Judge Raymond L. Acosta referred these
motions to Magistrate Judge Jes s Antonio Castellanos for a
report and recommendation.
On April 29, 1994, Magistrate Castellanos recommended
that: (1) the motion for reconsideration filed by supervisory
defendant L pez Feliciano be denied; (2) the motion to dismiss
filed by supervisory defendants Luis L pez Lebr n, Angel
Hern ndez, Angel D az, Fernando V zquez-Gely, and F lix Aponte-
Ortiz be denied; and (3) the motion to dismiss filed by
supervisory defendants Luis Carrillo and Jos Lucena be granted.
On March 16, 1995, Judge Salvador E. Casellas issued an order
adopting the magistrate s report and recommendation.4 On May 31,
1995, we issued our decision in Mart nez v. Col n, 54 F.3d 980
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(1st Cir.), cert. denied, 116 S. Ct. 515 (1995). On June 6,
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1995, supervisory defendant L pez Feliciano filed a motion,
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This order ended the involvement of supervisory defendants
Carrillo and Lucena in the action.
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joined in by the remaining supervisory defendants, requesting the
district court to reconsider its decision on the summary judgment
motion in light of Mart nez. On November 29, 1995, Judge
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Casellas vacated the court s order of November 1, 1991, and
dismissed the case on the ground that defendant Hern ndez was not
acting under color of law for the purposes of 1983 when he
killed Galletti. The plaintiffs appealed this decision.
Discussion
Discussion
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The plaintiffs assert that the district court erred in
determining as a matter of law that Hern ndez acts were not
taken under color of state law.5 Specifically, they challenge
the district court s application of Mart nez to this case.6
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Section 1983 provides, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
42 U.S.C.A. 1983 (West 1994). We discuss this issue in terms
of color of state law despite the fact that Puerto Rico is not
a state because Puerto Rico enjoys the functional equivalent of
statehood in regard to section 1983 and, thus, state law includes
Puerto Rico law. Mart nez, 54 F.3d at 984.
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The plaintiffs also contend that in granting summary judgment
for the defendants Judge Casellas abused his discretion by
vacating both the prior order of Judge Cerezo denying summary
judgment and his own order adopting the report and recommendation
of Magistrate Castellanos. The plaintiffs assert that this
action was improper due to the law of the case established by the
prior decisions. We disagree. Under the circumstances, our
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1. Summary Judgment Standard
1. Summary Judgment Standard
A district court may grant summary judgment only if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.
Fed. R. Civ. P. 56(c). In this case,
summary judgment will lie if the record, even
when taken in the aspect most favorable to
the nonmovant fails to yield a trialworthy
issue as to some material fact. In applying
this principle, it is important to bear in
mind that not every genuine factual conflict
necessitates a trial. It is only when a
disputed fact has the potential to change the
outcome of the suit under the governing law
if found favorably to the nonmovant that the
materiality hurdle is cleared.
Mart nez, 54 F.3d at 983-84 (citation omitted). For the purposes
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of this appeal, we exercise de novo review and adopt the
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plaintiffs version of all controverted facts. See id.
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2. Applying Mart nez
2. Applying Mart nez
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The plaintiffs assert that the district court
improperly applied Mart nez to this case. In Mart nez, an on-
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decision in Mart nez provided ample justification for the
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district court to revisit its prior decisions concerning action
under color of state law, and the court did not abuse its
discretion by so doing. See United States v. Lachman, 48 F.3d
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586, 590 (1st Cir. 1995) (district court judge has latitude to
revisit own earlier rulings); United States v. Rivera-Mart nez,
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931 F.2d 148, 150-51 (1st Cir. 1991) (district court has ability
to reopen issues when controlling authority makes subsequent
contrary decision of law).
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shift7 police officer accidentally shot and maimed a fellow off-
shift officer while harassing that officer in the station house.
See 54 F.3d at 982, 987. The harassing officer never expressly
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asserted his authority as a police officer, but he was in uniform
and armed with his service revolver. See id. at 987. The
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defendants were other police officers, at least one of whom was a
supervisor, who observed the incident but did not intervene. See
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id. at 983. We reviewed the district court s award of summary
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judgment in favor of the defendants and held that, under the
totality of the circumstances, it was clear that the officer was
not acting under color of state law because he was engaged in the
personal pursuit of private violence, making the grant of summary
judgment against the plaintiff appropriate. See id. at 988.
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Mart nez articulates the standard to be applied in this
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case to determine whether Hern ndez was acting under color of
state law when he shot and killed Galletti. As we said in that
case, [p]rivate violence -- even private violence engaged in by
one who happens to work for the state -- has different legal
ramifications than violence attributable to state action.
Mart nez, 54 F.3d at 985; see also Screws v. United States, 325
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U.S. 91, 111 (1945). Thus, whether a police officer is acting
under color of state law turns on the nature and circumstances of
the officer s conduct and the relationship of that conduct to the
performance of his official duties. Mart nez, 54 F.3d at 986.
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We use the term on-shift rather than the term on-duty
because, as noted supra, Puerto Rico police officers are
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considered to be on-duty twenty-four hours a day.
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The key determinant is whether the actor, at the time in
question, purposes to act in an official capacity or to exercise
official responsibilities pursuant to state law. Id.
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One relevant facet of this inquiry is whether the
defendant has purported to act under color of state law or, in
other words, has acted under pretense of law. See Screws v.
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United States, 325 U.S. 91, 111 (1945); Mart nez, 54 F.3d at 987.
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Action occurs under pretense of law when an individual imbued
with official authority purports to exercise that authority when
actually acting wholly outside of it. See Mart nez, 54 F.3d at
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986-87. However, as we have stated,
[e]ven though acting under color of law
includes acting under pretense of law for
purposes of a state action analysis, there
can be no pretense if the challenged conduct
is not related in some meaningful way either
to the officer s governmental status or to
the performance of his duties.
Id. at 987. Therefore, it is not enough for an individual merely
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to purport to exercise official power in order to trigger 1983
liability, but rather the individual must actually be engaged in
the abuse of official power granted by the government. See West
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v. Atkins, 487 U.S. 42, 49 (1988); Mart nez, 54 F.3d at 986.
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The pivotal issue to be determined, then, is whether
Hern ndez was engaged in purely personal pursuits or,
conversely, whether he was acting under color of state law. Id.
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at 987. In conducting this inquiry, we must assess Hern ndez
conduct in light of the totality of surrounding circumstances.
Id. In Mart nez, we identified several factors that are relevant
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to, but not necessarily determinative of, the issue, including: a
police officer s garb; an officer s duty status, including the
existence of a regulation providing that officers are on duty
twenty-four hours a day; the officer s use of a service revolver;
and, the location of the incident. See id. at 986, 987.
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The plaintiffs have resisted this formulation of the
issue. At oral argument, the plaintiffs urged us to find that
Hern ndez acted under color of state law because but for his
official authority, he could never have done what he did. We
recognize that some language in Mart nez might appear to support
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such an expansive position. See 54 F.3d at 986 ( In general,
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section 1983 is not implicated unless a state actor s conduct
occurs in the course of performing an actual or apparent duty of
his office, or unless the conduct is such that the actor could
not have behaved in that way but for the authority of his
office. ). However, that statement merely articulates the
minimum threshold that must be met for action to be considered as
occurring under color of state law and does not set forth the
specific test to be applied in determining whether a challenged
act was committed under color of state law. In fact, in Mart nez
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we rejected such a sweeping standard for 1983 liability. See,
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e.g., id. at 987 ( [W]e must assess the nature of his conduct in
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light of the totality of surrounding circumstances . . . . ), 988
( While a police officer s use of a state-issue weapon in the
pursuit of private activities will have furthered the 1983
violation in a literal sense, a court needs additional indicia
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of state authority to conclude that the officer acted under color
of state law. ) (citation omitted). We will not jettison our
settled case law to embrace such a broad standard of liability
here.
The plaintiffs also asserted at oral argument that
endorsing the result reached by the district court would bring us
into conflict with the decisions of other circuits. Contrary to
this assertion, the approach we articulated in Mart nez and
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endorse here is consistent with the approach taken by other
circuits that have considered the issue of whether the actions of
police officers are taken under color of state law. See, e.g.,
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David v. City and County of Denver, 101 F.3d 1344, 1351-54 (10th
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Cir. 1996); Barna v. City of Perth Amboy, 42 F.3d 809, 818-19 (3d
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Cir. 1994); Pitchell v. Callan, 13 F.3d 545, 547-49 (2d Cir.
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1994); United States v. Tarpley, 945 F.2d 806, 808-09 (5th Cir.
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Cir. 1991); Gibson v. City of Chicago, 910 F.2d 1510, 1516-19
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(7th 1990); Jones v. Gutschenritter, 909 F.2d 1208, 1211-12 (8th
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Cir. 1990); Revene v. Charles County Comm rs, 882 F.2d 870, 872-
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73 (4th Cir. 1989). While not explicitly adopting a totality of
the circumstances test, these courts have examined the
circumstances surrounding a challenged act to determine whether
it was committed under color of state law. Given the intensely
fact-specific nature of such analysis we find it unremarkable
that none of the cases cited by the plaintiffs are so factually
similar to this case as to persuade us to adopt the particular
outcome the plaintiffs desire.
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3. Application of the Standard
3. Application of the Standard
With these preliminary matters aside, we now turn to
the substance of this appeal -- the review de novo of the
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district court s grant of summary judgment on the color-of-state-
law issue. The plaintiffs point to the following factors to
justify 1983 liability: the twenty-four hour a day regulation;
Hern ndez repeated statements that he was a police officer; his
use of his service revolver in the shooting; his statements to
patrons that he was there to keep the peace and that he was
handling the situation ; and his display of his police
identification. These factors, they argue, raise a trialworthy
issue as to whether Hern ndez was acting under color of state law
on the night that he killed Galletti.
We agree that some of these factors weigh in favor of a
finding of 1983 liability. In particular, Hern ndez comments
to patrons that he was there to keep the peace and his display of
his police identification might, viewed in isolation, support an
inference that Hern ndez was acting under pretense of law by
purporting to act in his official capacity. However, that
conclusion was belied by the rest of Hern ndez behavior,
especially his repeated assertions that he could do things such
as look dirty at Galletti because he was a police officer.
Mere statements by individuals that they are entitled
to a special privilege because of their official status do not
constitute action under color or pretense of state law if the
asserted privilege lies clearly outside the scope of their
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official duties. Statements by Hern ndez that he could look
dirty at Galletti because he was a police officer so clearly
fell outside his official capacity that they did not constitute a
reasonable pretense that he was acting as a police officer at the
time.
Even more significantly, the final interchange between
Galletti and Hern ndez prior to their going outside the bar
dominates any characterization of the events of that evening.
Both parties agree that at a point just before Galletti s death,
he invited Hern ndez outside to settle their differences in a
fight. Hern ndez accepted. From the time that the two left the
bar until Hern ndez shot Galletti, Hern ndez made no further
pretense that he was acting as a police officer.
Whatever brief pretense Hern ndez may have made to be
acting in his official capacity by showing his identification and
stating that he was keeping the peace ended when the two agreed
to fight it out. In Mart nez, we stated:
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The campaign of terror that [the harassing
officer] mounted was patently personal in
nature, and [the victim] unquestionably
realized as much; indeed, there was not the
slightest indication that [the harassing
officer s] conduct was undertaken pursuant to
the authority of his office. Plainly, the
fact that [the victim] walked away numerous
times shows that he was not so intimidated
by [the harassing officer s] status as a
policeman as to cause him to refrain from
exercising his legal right[s].
Mart nez, 54 F.3d at 988 n.6 (quoting Jones v. Gutschenritter,
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909 F.2d 1208, 1212 (8th Cir. 1990)). Here, any possibility that
Galletti was intimidated by Hern ndez claims of official status
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is belied by the undisputed fact that Galletti invited Hern ndez
to engage in a private brawl. Because Hern ndez made no further
pretense of official action, there is not enough evidence in the
record, even taken in the light most favorable to the plaintiffs,
to support the inference that Hern ndez was acting under color of
state law when he shot Galletti. As the district court
concluded,
Galletti s reaction in the face of
Hern ndez openly hostile behavior towards
him serves to buttress our conclusion that
Hern ndez actions constituted private
conduct outside the line of duty, and that
the latter s status as an officer did not
enter into his taunting of the decedent. The
particular interaction between Hern ndez and
Galletti was of a distinctly personal nature,
and Galletti unquestionably realized as much.
The fact that Galletti not only initiated the
confrontation, but subsequently invited
Hern ndez to fight it out outside the bar
shows that he was not so intimidated by
Hern ndez status as a policeman as to cause
him to refrain from exercising his legal
rights.
We agree, and this conclusion ends our inquiry.8
Conclusion
Conclusion
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For the reasons stated above, we affirm the judgment of
affirm
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the district court.
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The action-under-the-color-of-state-law issue being decided in
favor of the defendants, the remainder of the plaintiffs claims
unravel. With no underlying 1983 violation by Hern ndez, none
of the other defendants can be found liable under the supervisory
liability theory forwarded by the plaintiffs.
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