USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1375
ELBA ROBLES-VAZQUEZ, ET AL,
Plaintiffs, Appellants,
v.
RAUL TIRADO GARCIA, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and DiClerico,* District Judge.
______________
____________________
Guy L. Heinemann, with whom Edelmiro Salas Garcia was on brief
________________ _____________________
for appellants.
Sylvia Roger-Stefani, Assistant Solicitor General, with whom
____________________
Carlos Lugo-Fiol, Solicitor General, and Edda Serrano-Blasini, Deputy
________________ ____________________
Assistant Solicitor, Department of Justice, were on brief for
appellees.
____________________
April 10, 1997
____________________
____________________
*Of the District of New Hampshire, sitting by designation.
CAMPBELL, Senior Circuit Judge. Plaintiffs-
_______________________
appellants appeal from an order of the district court
vacating an earlier $2.25 million judgment following a jury
verdict in plaintiffs-appellants' favor on their individual
claims under 42 U.S.C. 1983 and the Puerto Rico
Constitution. At issue is the power of the district court to
grant judgment as a matter of law after a jury's verdict on a
ground never raised by the parties prior to submission of the
case to the jury. We reverse.
I.
We state the facts in the light most favorable to
the verdict. See Aetna Casualty Surety Co. v. P & B
___ ___________________________ _______
Autobody, 43 F.3d 1546, 1552 (1st Cir. 1994).
________
On the night of August 26, 1991, defendants-
appellees Raul Tirado Garcia and Julio Olivares Febles,
assistant marshals of the Superior Court of Puerto Rico,
arrested Meraldo Bran
~
a Cruz at his home for nonpayment of
child support pursuant to a valid arrest warrant. Bran
~
a had
no criminal record, and the marshals did not consider him
dangerous; they did not handcuff or frisk him before placing
him in the back seat of the patrol car.
During the drive, Bran
~
a asked if they could stop by
a phone so he could call a relative to arrange for payment of
his child support arrearage. The police officers agreed, but
Bran
~
a took advantage of the opportunity to make his escape.
-2-
2
During the subsequent pursuit on foot, Tirado fired several
shots at Bran
~
a, one of which hit him in the back of his leg.
When Tirado caught up with Bran
~
a, he shot him in
the back at close range. Bran
~
a collapsed, and the marshals
brought him to the hospital. Despite extensive surgery,
Bran
~
a continued to endure excruciating pain, post-traumatic
stress syndrome, chronic depression, stomach problems, a
swollen leg, back pain, and a limp. He died on December 24,
1992 of cardiac arrhythmia, caused by the prescription drugs
he had been taking for the pain.
Bran
~
a sued, among others, Tirado and the
Commonwealth of Puerto Rico under 42 U.S.C. 1983,1 alleging
that Tirado had used excessive force in violation of the
Fourth and Fourteenth Amendments to the United States
Constitution2 and Article II, 7 and 10 of the Puerto Rico
____________________
1. 42 U.S.C. 1983 states, in relevant part, "Every person
who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory . . . subjects,
or causes to be subjected, any citizen of the United States
. . . 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 . . . ."
2. The Fourth Amendment to the United States Constitution
states, in relevant part, "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated
. . . ."
The Fourteenth Amendment states, in relevant part,
"[N]or shall any State deprive any person of life, liberty,
or property, without due process of law . . . ."
-3-
3
Constitution.3 After Bran
~
a'sdeath, his common-law wife, Elba
Robles-Vasquez, and his six children prosecuted Bran
~
a's
surviving claims as his heirs. His wife and the children
also sought recovery individually for their own pain and
suffering, emotional distress, and other damages, relying on
similar provisions of the United States and Puerto Rico
Constitutions.
At the close of the plaintiffs' case, the
defendants moved for judgment as a matter of law under Fed.
R. Civ. P. 50(a). This motion did not include as a reason
for dismissal of the wife's and children's individual claims
that Tirado's actions had in no way been directed at the
relationship between Bran
~
a and his wife and children.4 The
court denied the motion.
____________________
3. Article II, 7 of the Puerto Rico Constitution states,
in relevant part, "No person shall be deprived of his liberty
or property without due process of law."
Article II, 10 of the Puerto Rico Constitution states,
in relevant part, "The right of the people to be secure in
their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated."
4. First Circuit case law holds that surviving family
members cannot recover in an action brought under 1983 for
deprivation of rights secured by the federal constitution for
___
their own damages from the victim's death unless the
_________________
unconstitutional action was aimed at the familial
relationship. See, e.g., Manarite v. City of Springfield,
___ ____ ________ ___________________
957 F.2d 953, 960 (1st Cir.), cert. denied, 506 U.S. 837
____________
(1992). "State action that affects the parental relationship
only incidentally, however, even though the deprivation may
be permanent, as in the case of unlawful killing by the
police, is not sufficient to establish a violation of a [sic]
identified liberty interest." Pittsley v. Warish, 927 F.2d
________ ______
3, 8 (1st Cir. 1991).
-4-
4
The jury found in Bran
~
a's favor in his own,
surviving action, awarding to his heirs, on Bran
~
a's behalf,
one million dollars in compensatory damages and $500,000 in
punitive damages. The jury also awarded to Robles and the
children, in the claims brought on their individual behalfs,
$250,000 each in compensatory damages and $500,000 in
punitive damages to the group as a whole.
The court remitted the punitive damages from
Bran
~
a's own claims to $250,000. No appeal has been brought
from the judgment entered upon Bran
~
a's claims.
The court, however, granted part of the defendants'
Rule 50(b) Motion for Renewal of the Motion For Judgment as a
Matter of Law and dismissed the wife's and children's
individual claims under 1983, holding that Tirado's conduct
was not aimed at interfering with Bran
~
a's relationship with
his family as required by First Circuit case law. See infra
___ _____
note 6. In a footnote, the court also dismissed plaintiffs-
appellants' similar claims under the Puerto Rico
Constitution, saying they were "of the same ilk" as the
federal constitutional claims. As a result, the district
court dismissed so much of the jury's award as granted an
additional $1,750,000 in compensatory damages, and $500,000
in punitive damages, to the wife and children in their
individual rights. The plaintiffs appeal from the court's
granting of the part of the Rule 50(b) motion.
-5-
5
II.
Plaintiffs-appellants' primary argument on appeal
is that defendants-appellees waived the contention that, as
Tirado's alleged unconstitutional action against Bran
~
a was
not aimed at the latter's relationship with his family, the
plaintiff family members could not recover their individual
damages resulting from Bran
~
a's injury and death. See infra
___ _____
note 6. The defendants did not raise this point of law in
any pre-trial motion, nor did they raise it in the Rule 50(a)
motion filed at trial. Also, the defendants did not object
to the court's jury instructions which authorized the jury to
award damages to the individual family members and made no
mention before the jury retired of any legal limitation of
this nature.
The first reference to the issue surfaced in a
rather weak suggestion of the point in defendants-appellees'
post-verdict renewed motion for judgment as a matter of law
made under Fed. R. Civ. P. 50(b). However, "[a] post-trial
motion for judgment can be granted only on grounds advanced
in the pre-verdict motion." Fed. R. Civ. P. 50(b) advisory
committee's note to the 1991 amendment; see also Sanchez v.
_________ _______
Puerto Rico Oil Co., 37 F.3d 712, 723 (1st Cir. 1994) (same).
___________________
"The purpose of the Rule 50(b) requirement is to alert the
opposing party to the movant's claim of insufficiency before
the case goes to the jury, so that his opponent may possibly
-6-
6
cure any deficiency in his case should the motion have merit,
and also so that the judge may rule on the adequacy of the
evidence without impinging on the jury's fact-finding
province." Martinez Moll v. Levitt & Sons of Puerto Rico,
_____________ ______________________________
Inc., 583 F.2d 565, 569 (1st Cir. 1978).
____
An appellate court may not ordinarily consider an
issue raised for the first time in a Rule 50(b) motion on the
merits. See id. at 568. "[T]he exceptions [to this rule]
___ ___
are few and far between, and appellate discretion should not
be affirmatively exercised unless error is plain and the
equities heavily preponderate in favor of correcting it."
Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st
______ _______________________
Cir. 1995), cert. denied, 116 S. Ct. 1423 (1996).5
____________
A district court has no more leeway than a court of
appeals to consider an issue raised post-verdict for the
first time in a Rule 50(b) motion. See generally American
_____________ ________
and Foreign Insurance Company v. Bolt, 106 F.3d 155, 159-60
_____________________________ ____
(6th Cir. 1997) ("While it is accepted that a judge may sua
____________________
5. Similarly, a failure to object to jury instructions
constitutes a waiver. Fed. R. Civ. P. 51 states, in relevant
part, "No party may assign as error the giving or the failure
to give an instruction unless that party objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter objected to and the grounds of the
objection." See also Putnam Resources v. Pateman, 958 F.2d
________ ________________ _______
448, 456 (1st Cir. 1992) ("Silence after instructions . . .
typically constitutes a waiver of any objections."); La Amiga
________
del Pueblo, Inc. v. Robles, 937 F.2d 689, 690-91 (1st Cir.
________________ ______
1991) (holding that unobjected to jury instructions become
the law of the case); Quinones-Pacheco v. American Airlines,
________________ __________________
Inc., 979 F.2d 1, 4 n.3 (1st Cir. 1992) (same).
____
-7-
7
sponte grant a directed verdict pursuant to Fed. R. Civ. P.
50(a) . . . allowing a judge to sua sponte raise a new issue
post-verdict, and proceed to overturn a jury verdict on that
basis contravenes the dictates of Rule 50(b).") (citation
omitted) (citing cases).
Here, one might consider it a close call whether
the district court's prior failure, on its own initiative, to
have barred plaintiffs' Fourteenth Amendment claims because
of our "aimed at the relationship" requirement amounted to
plain error, so as to allow the court to engage later in
post-verdict correction.6 But we need not decide that
question, because clearly the district court's prior failure
to have voluntarily barred plaintiffs' parallel claims under
Article II, 10 of the Puerto Rico Constitution was not
___
plain error, if, in fact, it was error at all.
Stating that the elements of the two claims were
identical, the court instructed the jury to award only one
set of damages for the plaintiffs' individual claims both
____________________
6. While this Circuit has adopted an "aimed at the
relationship" requirement, see Soto v. Flores, 103 F.3d 1056,
___ ____ ______
1062 (1st Cir. 1997), some other circuits have not, see,
___
e.g., Kelson v. City of Springfield, 767 F.2d 651, 653-55
____ ______ ___________________
(9th Cir. 1985); Estate of Bailey by Oare v. County of York,
________________________ ______________
768 F.2d 503, 509 n.7 (3d Cir. 1985); Bell v. City of
____ _______
Milwaukee, 746 F.2d 1205, 1244-45 (7th Cir. 1984), and the
_________
Supreme Court has not yet ruled on this issue.
-8-
8
under the Fourteenth Amendment and the Puerto Rico
Constitution.7 It follows that even if the district court
committed plain error in sending to the jury the plaintiffs'
individual claims under the Fourteenth Amendment of the
United States Constitution, the fact that it did not commit
plain error in allowing the Puerto Rican constitutional prong
of the claims to go forward prevented it from later allowing
defendants' Rule 50(b) motion to invalidate the jury's award
of individual damages to plaintiffs.
In Puerto Rico, there is no precedent of which we
are aware holding that family members of a deceased victim of
lethal force used by the police in violation of Article II,
10 of the Puerto Rico Constitution either have or do not have
a private right of action for their own damages derived from
____________________
7. The district court instructed the jury, "The plaintiffs'
claims under the Puerto Rico Constitution essentially mirror
and are the same as those asserted under the United States
Constitution." The court further stated:
Since the elements of this claim [under
Article II, 10 of the Puerto Rico
Constitution] are the same as under the
Federal Constitution, I will not repeat
them here. The verdict form that will be
provided to you after I finish my
instructions will reflect the claims
under both the Federal and Puerto Rico
Constitutions. If you find liability
under both constitutions, or either of
them, the amount of damages you award
will only be provided to the plaintiff
once, not double. That is, no double
recovery may be granted by you.
-9-
9
the victim's injury and death. No Puerto Rico opinion,
however, forecloses such an action, and decisions in other,
related areas of Puerto Rico law indicate that the Puerto
Rico Supreme Court might allow it.
The provisions of the Puerto Rico Constitution are
said to operate ex proprio vigore, without the need for an
__________________
effectuating statute comparable to 1983. The Puerto Rico
Supreme Court has written, "The fact that a law has not been
enacted defining privacy rights does not relieve us from our
duty to give effect to that provision, since it is known that
all constitutional provisions are, by their own nature, of
privileged norm under the legislation, self-exercisable."
Quinones v. Commonwealth, 90 P.R.R. 791, 794 (1964).
________ ____________
More recently, the Court wrote:
We have repeatedly held that the
character and primacy of the right of
privacy operate ex proprio vigore, and
__________________
may be enforced even between private
individuals. We must reach the same
conclusion with regard to the
constitutional right which protects the
inviolability of the dignity of the human
being, and with regard to that right
which protects every worker against risks
to his personal integrity in his work.
We have also recognized the right to
be compensated for damages caused when a
private citizen encroaches upon one of
these rights.
Arroyo v. Rattan Specialties, 17 O.T.S. 43, 74-75 (1986)
______ ___________________
(citations omitted).
-10-
10
Under this rationale, the Puerto Rico Supreme Court
held that the victim of an illegal search had a private right
of action for damages under the Organic Act of Puerto Rico,
even before the Puerto Rico Constitution had come into
existence. See Miguel v. Hernaiz Targa & Co., 51 P.R.R. 568,
___ ______ ___________________
574-75 (1937). More recently, the Court has recognized a
private right of action for violations of Article II, 10's
ban on wiretapping, see Puerto Rico Telephone Co. v.
___ ____________________________
Martinez, 14 O.T.S. 420, 435 (1983); see also Menda Biton v.
________ ________ ___________
Menda, 796 F. Supp. 631, 633 (D.P.R. 1992), and for
_____
violations of Article II, 8's right to protection against
abusive attacks against one's reputation or family life, see
___
Ayala v. San Juan Racing Corp., 12 O.T.S. 1012, 1019-20
_____ _______________________
(1982); Colon v. Romero Barcelo, 12 O.T.S. 718 (1982);
_____ _______________
Gonzalez v. Cuerda, 88 P.R.R. 121, 130 (1963); see also
________ ______ _________
Rivera-Flores v. Puerto Rico Telephone Co., 64 F.3d 742, 751
_____________ __________________________
n.9 (1st Cir. 1995) (recognizing that Article II, 1 and 8
operate ex proprio vigore to make violators liable for tort
_________________
damages).
Recognition of a private right of action by or on
behalf of the victim of a constitutional wrong does not, of
course, necessarily mean that members of the victim's family
may sue in their individual capacities for damages suffered
as a result of the victim's death or injury. Puerto Rico
tort law, however, allows the close relatives of the victim
-11-
11
in unlawful death cases to recover for their own damages.
See Hernandez v. Fournier, 80 P.R.R. 93, 96-104 (1957); Caez
___ _________ ________ ____
v. U.S. Casualty Co., 80 P.R.R. 729, 734-36 (1958); Rojas-
__________________ ______
Hernandez v. Puerto Rico Electric Power Authority, 925 F.2d
_________ _____________________________________
492, 493 (1st Cir. 1991). As the Puerto Rico Supreme Court
wrote, "Thus, our jurisprudence admits that the next of kin
of the victim are entitled to compensation for the material
and moral damages which they personally suffered, whether or
not they are heirs of the deceased." Hernandez, 80 P.R.R. at
_________
99. The same could well be true in the realm of
constitutional torts as well, although the Puerto Rico courts
have yet to rule definitively. See Colon (allowing relatives
___ _____
of a murdered man to recover under, inter alia, Article II,
8 of the Puerto Rico Constitution's guarantee of privacy, for
the use of pictures of the deceased's corpse in political
advertisements, without clarifying whether the recovery was
for the breach of the deceased's privacy or the relatives').
The Supreme Court of Puerto Rico seems particularly
likely to recognize a private right of action for victims'
family members in the privacy arena. The Court has declared
that the right of privacy set forth in sections 1, 8, and 10
of Article II of the Puerto Rico Constitution "has a
privileged place in the wide range of rights protected by the
Constitution." Commonwealth v. Puerto Rico Telephone Co., 14
____________ _________________________
O.T.S. 505, 514 (1983); see also Kerr-Selgas v. American
________ ___________ ________
-12-
12
Airlines, Inc., 69 F.3d 1205, 1213 (1st Cir. 1995)
_______________
(recognizing the "great importance" attached by the Puerto
Rico Supreme Court to the Puerto Rico Constitution's
guarantee of the right of privacy and human dignity).
Although the relevant language of Article II, 10
of the Puerto Rico Constitution is identical to that of the
Fourth Amendment to the United States Constitution, the
Puerto Rico Supreme Court has declared that it may interpret
a provision of the Puerto Rico Constitution as being more
protective of the right involved than is the analogous
provision of the United States Constitution. See People v.
___ ______
Conde Pratts, 15 O.T.S. 411, 416-17 (1984). Thus, the Puerto
____________
Rico Supreme Court could and might decide against adopting an
"aimed at the relationship" test for the Puerto Rico
Constitution even if the United States Supreme Court were to
adopt one for the United States Constitution. The fact that
the First Circuit has adopted such a test under the United
States Constitution is not determinative of the plaintiffs'
rights under the Puerto Rico Constitution.
We conclude, therefore, that, in the absence of any
Puerto Rico authority recognizing an "aimed at the
relationship" requirement, and given Puerto Rico law's strong
policy in favor of compensating the tort victim's relatives
for their independent damages, it is at least questionable
whether the Puerto Rico courts would read an "aimed at the
-13-
13
relationship" requirement into private actions brought under
Article II, 10 of the Puerto Rico Constitution. It follows
that it was not plain error for the district court to send
_____
the plaintiffs' individual claims under the Puerto Rico
Constitution to the jury. This being so, the district court
later committed error when, following the verdict, it allowed
the defendants' Rule 50(b) motion and dismissed the jury's
damages award, which rested separately on the Puerto Rico
Constitution as well as, doubtfully, on the Fourteenth
Amendment.
Had the defendants wished to preserve the "aimed at
the relationship" issue, in particular under Puerto Rico law,
for ruling by the district court and ourselves, they should
have raised it when they moved for judgment as a matter of
law during the trial under Rule 50(a) or, at least, by way of
objection to the court's jury instruction submitting the
individual plaintiffs' claims to the jury. This they
completely failed to do.
Up until this point, we have assumed that the
district court's power to engage in post-verdict correction
was limited to instances of plain error a very tough
standard in civil cases. It could possibly be argued,
however, that district and appellate courts possess some sort
of additional authority to consider a waived issue on the
merits if it presents an important and novel question of law.
-14-
14
See City of Newport v. Fact Concerts, Inc., 453 U.S. 247
___ ________________ ____________________
(1981) (choosing to review a waived issue de novo on its
merits because the district court had done so, the court of
appeals had not disagreed with the district court's
conclusions, and the issue was a novel question of law that
was important and likely to recur); Getty Petroleum Corp. v.
______________________
Bartco Petroleum Corp., 858 F.2d 103, 107-08 (2d Cir. 1988)
_______________________
(examining an issue on the merits despite a party's failure
to object to a jury instruction because the district court
had considered the question on the merits and because the
issue involved was an important and novel question of federal
law, citing City of Newport), cert. denied, 490 U.S. 1006
________________ _____________
(1989); Weaver v. Bowers, 657 F.2d 1356, 1361 (3d Cir. 1981)
______ ______
(relying partly on City of Newport as authority to examine on
_______________
the merits a defense of failure to state a claim upon which
relief can be granted which was not raised until after the
conclusion of the trial, stating that "in unusual
circumstances the courts of appeals also have inherent power
to reach issues although not timely raised below"), cert.
_____
denied, 455 U.S. 942 (1982).
______
The short answer to any contention that the
district court was empowered to rule here by the above City
____
of Newport principles is that the issue in question is one of
__________
Puerto Rico law on which the Puerto Rico Supreme Court, and
not we or even the United States Supreme Court, has the final
-15-
15
say.8 As such, consideration of the issue on the merits
would "neither . . . promote the interests of justice nor
. . . advance efficient judicial administration." City of
_______
Newport, 453 U.S. at 257.
_______
As we review the defendants' belated objection
under the plain error standard and find no plain error, at
least in respect to the Puerto Rico law claim, we reverse the
district court's post-trial grant of judgment as a matter of
law on the plaintiffs' individual damages claims.
We note that because the district court granted
judgment as a matter of law to the defendants on the
plaintiffs' individual claims, it did not consider the
defendants' request, included within their post-trial motion
under Rules 50(b) and 59, for a remittitur and for a new
trial on these claims. As we have restored the jury's
verdict, we remand to the district court so that it may now
consider these requests to the extent the parties wish to
pursue them.
Vacated and remanded.
____________________
____________________
8. A longer answer could be that whatever power the Supreme
Court relied upon in City of Newport was limited to itself
_______________
and would least likely apply to non-appellate tribunals, such
as the district courts, even assuming it were to apply to
courts of appeal, which remains doubtful, although we do not
rule on the matter. As the Court wrote, "While concluding
that in this unusual case, the interest of justice warrants
our plenary consideration, we express no view regarding the
___
application of the plain-error doctrine by the Courts of
Appeals." City of Newport, 453 U.S. at 257 n.16 (citation
_______________
omitted) (emphasis added).
-16-
16